Counter-Memorial of the Libyan Arab Jamahiriya

INTERNATIONCOURTOFJUSTICE
PLEADINGSORAL ARGUMENTS, DOCUMENTS

CASE CONCERNING THE
CONTINENTALSHELF

(LIBYAN ARAB JAMAHIRIYAMALTA)

VOLUME II
Counter-Memorials;ApplicPermissionto Intervene
andconsequentproceedings

COUR INTERNATIONALEDE JUSTICE

MÊMOIKES,PLAlDOIRlES ET DOCUMENTS

AFFAIRE

DU PLATEAU CONTINENTAL
(JAMAHIRIYAARABE LIBYENNEIMALTE)

VOLUME II
Contre-mémosrequêe fin d'intervention
et procédureelative Abbreviatedreference :
1.CJ. Plriadings,ContinentalSheif(Libyan
Arab JamahiriyalMalta), Vol. II

Référencaebrégé e
C.I.J. Mémoires, Plateaucontinental(Jarnahiriyu
arabe libyenne/Malte),vol.II

Sales number
No de vente:CASE CONCERNINGTHE CONTINENTALSHELF
(LIBYANARAB JAMAHIRfYAtMALTA)

AFFAIREDU PLATEAU CONTINENTAL
(JAMAHIRIYAARABE LIBYENNE1MALTE) INTERNATIONLOURT OF JUSTICE

PLEADINGS,ORAL ARGUMENTS,DOCUMENTS

CASE CONCERNINGTHE

CONTINENTALSHELF

(LIBYAN ARAB JAMAHIRIYAIMALTA)

VOLUMEII
Counter-MernorlApplicationfor Permto Intervene
andconsequentproceedings

COUR INTERNATIONALDE JUSTICE

MÉMOIRES,PLAIDOIRIESET DOCUMENTS

AFFAIRE

DU PLATEAU CONTINENTAL
(JAMAWIRIYA ARABE LIBYENNE/MALTE)

VOLUME II
Contre-mémoi;sequEtilfd'intervention
et procédyrrelative The case concerning the ContinentalShev(Libyan Arab Jumahiriya/Malra),
entered on the Court's General List on 26 July 1982under number 68,was the
subject of Judgments delivered on 21 March 1984(ContinentalShey (Libyan
Arab Jumahiriya/Moltcl),Application roInrervene,Judgmenr,I.C.J. Reports
1984,p. 3)and 3June 1985(ContinentalShelflLibyan Arab JamuhiriyalMalra),
Judgment, I.C. J. Reports 1985.p. 13).
The pleadings and oral arguments in the case are being published in the fol-
lowingorder :

Volume 1. Special Agreement; Memorials of the Libyan Arab Jamahiriya and
Malta.
Volume II. Counter-Memorials of the Libyan Arab Jamahiriya and Malta;
Application by Italy for Permissionto Intervene, and consequent proceedings.
Volume III. Replies of Tunisia and the Libyan Arab Jamahiriya; commence-
ment of Oral Arguments.
VolumeIV. Conclusion of Oral Arguments; Documents submitted to the Court
after closure of the wntten proceedings;Correspondence.
VolumeV. Maps, charts and illustrations.
Certain pleadings anddocuments of this edition are reproduced photographic-
allyfrom the original printed text.

In addition to the normal continuous pagination, the Volumes feature on the
inner margin of pages a bracketed indication of the original pagination of the
Memorials, the Counter-Memorials, the Replies andcertain Annexes.
In interna1references,bold Roman nurnerals (in the text or in themargin) are
used to refer to Volumes of this edition; if theyare immediately followed by a
page reference, this relatesto the new pagination ofthe Volumein question..On
the other hand, the page numbers which are preceded by a reference to one of
the pleadings relate tothe original pagination of that document and accordingly
refer to the bracketed pagination of the document in question.
The main maps and charts are reproduced in a separate Volume (V), with a
renurnbering, indicated by ringed numerals, that isako added in the margin in
Volumes 1-IVwherever corresponding rcferences appear; the absence of such
marginal reference means that the map or illustration is not reproduced in the
presentedition.
Neither the typographical presentation nor the spelling of proper names may
be used for the purpose of interpreting the texts reproduced.

L'affairedu Plareaucontinental (Jamahiriya arabelibyenne /Malte),inscriteau
rBlegénérad le la Cour sous Ic numéro 68 le 26juillet 1982,a fait l'objetdlarr@ts
rendus le 21 mars 1984(Plateauconrinenral(Jamahiriyaarabelibyenne/Malte),
requête àfin d'inrervention,arrêt , I.J. Recueil1984, p. 3) et 3ejuin 1985(Pla-
teau continental (Jamahiriyaombe libyenne/ Malte), arrêt C,1.J. Recueil 1985.
p. 13). VI11 CONTINENTAL SHELF- PLATEAU CONTINENTAL

Les piécesde prockdure kcrite et les plaidoiries relativàscette affaire sont
publiéesdans l'ordresuivant:
Volume 1. Compromis; mémoiresde la Jamahiriya arabe libyenne et de Malte.
Volume II. Contre-mémoiresde la Jamahinya arabe libyenne et de Malte;
requêtede l'Italàefin d'interventionet procédurey reIative.
Volume 111.Rkpliquesdela Jamahiriya arabe libyenneet de Malte; dtbut de la

procédure orale.
Volume IV. Suite et fin de la procédureorale; documents présentés B Ia Cour
aprésla fin de la procédure écrecorrespondance.
VolumeV. Cartes et illustrations.
Certaines pitces de la prCsenteéditionsont photographiéesd'aprts leur texte
imprimé original.
Outre leur pagination continue habituelle, les volumescomportent, entre cro-
chets sur le bord interieur des pages, l'indication dela pagination originale des
mémoires, des contre-mémoires, des répliquesd et certaines de leurs annexes.
S'agissant des renvois, les chiffres romains gras (danle texteou dans la
-
marge) indiquent le volume de la présenteédition; s'ils sont immédiatement
suivispar une référencede pagec,ette référence renvoiA la nouvellepagination
du volume concerné.En revanche, les numérosde page qui sont précédtsde
l'indication d'une piécede procédure visent Ia pagination onginale de ladite
pièceet renvoient donc dla pagination entre crochets de la piécementionnte.
Lesprincipales cartes sont reproduites dans un volumeséparé(V) oh dles ont
reçu un numérotagenouveau indique par un chiffre cerclé.Dans les volumes 1 i
IV, les renvois aux cartes et illustrations du volume V sont poflks en marge
selon ce nouveau numérotage,et l'absencede tout renvoi Ala présenteédition
signifiequ'unecarte ou illustration n'estpas reproduite.
Ni la présentation typographique ni l'orthographe des nomspropres ne sau-
raient êtreutiliséesaux finsde l'interprétationdes textes reproduits. CONTENTS . TABLE DES MATIÈRES

Counter-Mernorial of the LibyanArab Jamahiriya . Contre-mémoire
dela Jamahiriya arabe übyenne
~NTRoDuC~~ON ............................

PART 1.THE FACTUA L LEME~S ...................
Chapter 1. The background of the dispute..............
Introduction ...........................
A .Legislation ..........................
C .Petroleum activiticsof the Partie...................
D . The "nodriHingWundmtanding ................
Chapter 2.The physical factors of geography, geomorphology and
geology ..............................
...........................
A. The gtographical setting of the dispu.............
. Malta'sncglectof geographicalfactors ...........
2. Thetwinthcrnes :"simple"and "normal* ..........
3. "Location" and "distance"asdiscusscdby Malta ......
4. The location of the Partie- the prescnce of third State.
B. Thc coasts of the Parties - the factors of length and rela-
tionship ............................
. The importance of coastsas rtflected in thejurispruden. .
2. Malta'sneglectof coastal details..............
3. Malta's rationalc for avoiding coastal det-ilits basepoints
4. The major importance of the coasts of the Parties in the
present case ........................
C .The sea-bed and subsoilof the continental shelfare......
Introduction .........................
1 Malta'strcatment ofgeomorphologyand geology ......
2. Thc importance of the physical factors of geomorphology and
geologyin the prcscnt case.................
Chapter 3. Econornicand other considerations introduced by Mdta
A .Economic considerations ...................
1. Apportionment of natural resources.............
2. Generai economicfactors ..................
3. Fishing ..........................
4.Malta'sstatus as an "island developingcountry".......
B. Other considerations .....................
1. The element of national security..............
2. Malta's ncutraiity .....................
3. Malta'spoliticaistatus ...................X CONTINENTA SLELF . PLATEAU CONTINENTAL

Page
PART II.THELAW .......................... 77

Chapter 4. Continental shelfentitlement and deiimitatio...... 79
Introduction ........................... 79
A. Entitlement .......................... 82
1.The continental shelf entitlement of islands...... 82
2 .The coastal basis of continental shelfentitlement.... 85
B . Delimitation ......................... 89
1.The relative weight of coasts of different lengths for purposes
of delimitation........................
3 .The so-called"distance principle..................

Chapter 5. Neither equidistance nor any other method has an
obligatory character in continental shelfdelimita........
A. The trends away frorn equidistanc...............
1.Asreflectedin the jurisprudence ..............
2 .As reflectedin delimitation agreements...........
Continental shelfboundanes ................
Maritime boundary agreements ...............
3 .As reflected in the fhird Conference on the Law of the Sea
3 . The progressivedisappearance of any distinction between "oppo-
site" and "adjacent" State...................
C . State practice relating to continental shelfdelimit.....
1.The legalrelevanceof State practic.............
2 . Malta'streatment of Slate practic.............
Delimitation agreementscited by Malta ...........
Delimitation agreementsin the Mediterranean........
Italy-Yugoslavia ....................
Italy-Tunisia ......................
Italy-Spain .......................
Italy-Maita (provisional solution)............

Delimitation agreements omitted from Malta's Mernorial . .
PARTIII .APPLICATIO NF THE LAW TO THE FACTSAND RELEVANT
CIRCUMSTANC EFÇTHE PRESENT CASE ...............
Chapter 6 .The overriding aim of achieving an equitable result in
accordance with equitable principl................
A. The selection and weighingof the relevant circumstance....
B. The test of proportionalit...................
1.Malta'sattempt to discredit the role of proportiona....
2 .The role of proportionalit.................
3.MaItaisintroduction of an unacceptableform of proportionality
test ............................
Chapter 7 .The inequity of Malta'sproposed solution........
A . Equidistance ignores the relevant circumstances including those
of a geographical character..................
B. The Maltese "trapezium exercise" ............... Chapter 8. The approaches of the Parties to delimitation and an
equitable result ..........................
Submissions .............................
.............
Annex .A critique of the "trapeiurn exercisen
1. The Mernorial'scommentary on the Figure ............
First element ...........................
Second element .........................
Third element ..........................
2. The trapezium exerciseand the equidistance mtthod .......
(i) The trapezium in fact assumes that the Maltese coast is of
equal length to the Libyancoast ...............
(ii) The trapezium assumesa proportionality betweenthe two shelf
areas by ignoring areas attaching to State A (Malta) and
adding to State B's area (Libya's) areas of shelf which lie
to lie between eventhe fictitiouscoastsl...........not be said
(iii) The application of the trapeziurn construct to the actual area in
Figure A of the Maltese Mernorial demonstrates that the
choiceof the relevant Libyan coastwasdettrrnined solelyby the
need to accommodatethe Maltesedaim line .........
(iv) The trapezium construct involvcsdttermining the shelf areof
State A by reference. not to the length of its own Coast.but to
the length of the coast of the opposite Statc B.......
3. The trapezium applied to other. neighbounng delirnitations :...
Annex ofDelimitation Agreemerils
Introduction ............................
..................
B..OEmergent themesthe .......................
Delimitation Agreements

21.Chile-Perungdom.........................nezuela ......
3 .Ecuador-Peru ........................
4 .Nonvay-Soviet Union ....................
5 . Bahrain-Saudi Arabia ....................
6. Guinea-Bissau-Senegal ...................
7. Netherlands-Federal Republic of Gctrnany ..........
8 . Norway-United Kingdom ..................
9 . Finland-Soviet Union ....................
I1. Netherlands-United Kingdomc of G.....................
12. Denmark-Norway ......................
13 .United Kingdom-Denmark .................
14. Italy-Yugoslavia .......................
15. Abu Dhabi-Dubai ......................
16. Nonvay-Sweden .......................
17. Iran-Saudi Arabia ......................
18. German Democratic Re................................
19 .Abu Dhabi-QaiaxXII CONTINENTAL SHELF . PLATEAU CONTINENTAL

Page
20. Poland-Soviet Union .................... 192
21. Iran-Qatar ......................... 192
22. Indonesia-Malaysia ..................... 192
23. Mexico-United States .................... 192
24. Australia-Indonesia ..................... 193
25. Bahrain-Iran ........................ 193
27. Federal Republic of Germany-United Kingdom ....... 193
28. Indonesia-Thailand ..................... 193
29. Indonesia-Thailand-Malaysia ............... 194
30 .Brazil-Uruguay ....................... 194
31 .Finland-Sweden ....................... 194
32 .Argentina-Uruguay ..................... 194
33 .Canada-Denmark ...................... 194
34 .France-Spain ............................. 195
36..ltaly-Spainlic......................... 195
37. Sudan-Saudi Arabia ..................... 195
38 lndia-Sri Lanka ....................... 195
39 .Federai Repubfic ofGcrmany-Gcrman Dtmocratic Republic . 195
40 .Iran-Oman ......................... 195
41 .India-Indonesia ....................... 196
42 .Iran-United Arab Emirates(Dubai) ............. 196
44. Colombia-Ecuadoral ..................... 196
45. Morocco-Mauritania .................... 196
46.Kenya-Tanzania ....................... 196
47.Cuba-Mexico ........................ 197
48.Colombia-Panama ..................... 197
49.India-Maldives ....................... 197
50. Colombia-Costa Rica .................... 197
51. Italy-Greece ......................... 197
53.Cuba-United States......................... 198
54.Colombia-Dominican Republic ............... 198
55.Colornbia-Haiti ....................... 198
56. United States-Venezuela ................... 198
57.The Netherlands-Venezuela ................. 198
58.India-lndonesia-Thaila .n............... 198
59. India-Thailand ....................... 198
60.Australia-Papua NewGuinea ................ 199
62.Denmark-Norwayublic-............................ 199
63. France-Tonga ........................ 199
64. Costa Rica-Panama ..................... 199
65. France-Mauritius ...................... 199
66. United States-Cook Islands ................. 200
67. France-Venezuela ...................... 200
68. NewZealand-United States ................. 200
70. Iceland-NorwayLuc......................... 200
71. France-Australia ...................... 200 CONTENTS - TABLE DES MATIERES
Page
DocumeniaryAnnexes to the Counter-Memorialof the LibyanArub Jama-
hiriya . . . . . . . . . . .. . . . . . . . . . . ... . . . . . . .

Annex 1. Libyan Law No. 66of 1973 . . . . . . . . . ... . . . .
Annexl. Petroconsultants S.A., page 1 of Foreign Scouting Service,
Malta, July 1980, and page 5 of Annual Review 1979, Malta,
Annex 3. Pages 109and 110of Rent-Jean Dupuy, L'océanpartagé . . . . .
Annex 4. Page 341 of Morel, "Caracthres hydrologiques des eaux
kchangées entre le bassin oriental etle bassin occidentalde la MCditer-
rante" . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .
Annex.5. Page 6 of Burollet. "Structure and Petroleum Potential
of the Ionian Sean . . . . . . . . . . . ... . . . . . .. . . .
Annex 6. Page 9 of OPEC, Annual Siutfitical BulletinI98i . . . . .
Annex 7. Governrnent of Malta, page 7 of Economic Survey, August
Annex 8. Page 1of MalteseDeveloprneniPlan 1981-19851982 . . .. . .. .
Annex9. Page 139 of World Bank, World Developrnent Report.
1981 ...............................
Annex 10. Page 54 of Secretariat of Planning, Summary of the
Socio-Economic TransformaiionPlan 1981-1985 . . . . . . . . . .
Annex Il. Page 39 of Metwally, Structure and Performance of the
MolteseEconomy . . . . . .. . . . . . . . . . . . . . . . . ..
Annex 12. Page 84 ofMalta Handbook 1981and page 125of Malta
Annex 13. Page 149of Malta, Guidelinesfor Progress(Developrnenr
Plan1981-1985) . . . . . . . . . . .. . . . . . . . . . .. . . .
Annex 14. Page 71 of Developmeni Planfor Malta 1973-1980.Supple-
ment ...............................
Annex 15. Agreement between Libya and Malta establishing a fishing
Company . . . .. . . . . . . . . . . . . . ... . . .. . .. .
Annex 16. Agreement betweenLibya and Malta for the setting up of a
joint fishingventure. . . . . . . . . . . . . . . . . . ... . .
AnMalia7. P.............................. the Fishing Indicrrry of
Annex 18. Page 4 of FAO, Report io the Governmeni of Malra on
FisheriesDevelopment(1970) . . . . . . . . . . . . . . . .. . .
Annex 19. Pages 73-74 and 76 of Anderson and Blake, "The Libyan
Fishing Industry" in Allan (cd.), iibya sinceIndependence .. . . .
Annex 20. Pages 5-8, 12, and 2944 of Developing Island Counrries,
UN doc.TD/B/443/ Rev.1 . . . . . .. . . . . . . .. . . . . .
An28June 1977e 9. . . . . . . . . . . . . .. . .o. . . .A:. . . . .
Annex22. Pages 3 and 4 of Dickinson, fie Equaliv of States in
InternationalLaw . . . . . . . . . ... . . .. . . . . .. . . , ,
Annex 23. Page 510 of Reuter, Principesde droit international public
Annex24. Page 287 of the niird United Nations Conference on the
Law ofthe Sea, OfjicialRecords,Vol. II . . . . . . . . . . . . . .
Annex 25. Pages 87 and 89 of General Assernbly, wcciol Records,
Annex 26. PagesSu232eand 233 of the Third United Nations Conference.
on theLaw of the Sea, official Records,Vol.III . . . .. . . . . .XIV CONTINENTAL SHELF - PLATEAU CONTINENTAL

Annex27. Page 84of the Third UnitedNations Conferenceon the Law
of the Sea, Qjf,Gcilecords,Vol. VI1 . . . . . . . . . . . . . . .
Annex 28. Page 200 of the Third United Nations Conference on the
Law of the Sea, OfJicialRecords,Vol. 1 . . . . . . . . . . .. . .
Annex29. Page 79of the Third UnitedNations Conferenceon the Law
of the Sea,OfficialRecords,Vol. IX . . . . . . . . . . . . .. . .
Annex 30. Pages 210-211of the Third United Nations Conferenceon
Annex L31.ofLimitsin thefSeas;RNo. 81,27 December 1978,p. . 6 ; No.83,.
12Febmary 1979,pp. 13-14 ; No. 84, 15Febmary 1979,p. 5; No. 97,
6 December1982,p. 5 . . .. . . . . . . . . . . . . .. . .. . .
Annex 32. Pages281to 284of Gilbert Guillaume,"Les accords dedélimi-
tation maritime passéspar la France", Perspectives du droit de la
mer à l'issuede latroisième conférencd ees Nations Unies,colloque
de Rouen de la Société françaisp eour le droit international, 1983. .
Annex 33. UN documents NG7/2/ Rev.2 and NG7/ 10/Rev.2, 28
Annex34. Pages. . 188 and 190of the United Nations Conference on the .
Law of the Sea, Olficciol ecords,Vol. III . . . . . . . . . . .. .
Annex35. Page 42 of New Directions in,the Law of the Sea,
Documents, Vol.1 . . . . . . . . . . . . . . . . . . . , . . . .
Annex36. Pages 651-652of Karl, "Islands and the Delimitation of the
Continental Shelf :A Framework for Analysis",in American Journal
of Internationallaw, Vol.71, 1977 . . . . . . . . . . . . .. . .
Annex37. Page 132 of de Azcarraga, "Espaiia Suscribe,con Francia e
Submarinas Cornunes" in Revisra Espafiola de Derecho Interna-
cional,Vol.XVII ; unofficialtranslation . . . . . . . . . . . . . .
Annex38. Pages 742, 749 and 750 of Feldman and Colson, "The
Maritime Boundaries of the United States", in American Journal
of Internationalhw, Vol.75, 1981 . . . . . . . . . . . . . . ..
Annex39. Page 426 of Hodgson and Smith, "Boundary IssuesCreated
by Extended National Marine Jurisdiction", in The Geographical
Annexvie40.VPages 224-225 ofobBowett, .Theiegal .Régimeof Islands in. .
InternationulLaw . . . . . . . . . .. . . . . . . . . . . . . . .

Certification . . . . . . . . . . . . . . .. . . . . . . , , , , . .
Counter-Mernoriaolf Malta - Contre-mémoirdee Malte

PART1. THEFUNDAMENTA IDLEASUNDERLYIN THELIBYAN CASE . .
Chapter 1. The substance of the Libyan case :Malta disregarded . . .
Chapter Il. The legalbasis of the Libyan case :natural prolongation .
Chapter III. The keyscientific conceptsofthe Libyan case:the socalled
Rift Zone and the Escarpments-FaultZone . . . . . . . . . . ..
1. The "Rift Zone" . . . . . . . . . . . . . . . . . . . . . . . .
2. The Escarpments-Fault Zone . . . . . . . . . . . . . . . . , .
Chapter IV. The practice of States disregarded . . . . . . . . . . .
PART II.THETASK OF THE COURT . . . . . . . . . . . . . . . . . .XVI CONTINENTA SHLELF . PLATEAU CONTINENTAL

PAMEMORIA.RESTA............................NTHE LIGH T FTHE LIBYAN

Chapter V. The importance to Malta of the appurtenant continental
shelf ...............................
Cha1965 V...............................y of Malta's position since

. Malta'sequidistance line ....................
2. The diversityof Libyanlinesand substitutes for line......
Chapter VI1. The geographicalframework of the presentcase ....
. Introduction:the keyelements .. : ..............
2. The essential geological continuity ofthe shelf in the relevant
area ..............................
3. The rôle of coastlines .....................
4. The equidistance methodnormallyeffectsan equitable delimitation
of areas dividing opposite State................
Chapter VI1 1The equality of island States in shelfdelimitati...
1.The significanceof islands in delimitatio............
2 .The gentrally recognised significanceof island States in shelfdeli-
rnitation ............................
3. The link betweenentitlement and delimitation .........
4. The coastal State's interest in exercising political authority in
respectof appurtenant shelfareas ...............
Chapter IX . Equidistance as the equitable solution sanctioned by State
practice and analogous considerations...............
1. The provenance ofthe equidistance method incustomary law . .
2. The general tolcration of the international communi......
3. The importance of frnality and stability in rnatters of dclirni-
tation .............................
4. The practice of States in the Mediterranean regio.......
Chapter X. Equitable considerations relevant to the present c...
1.The rBleof non-geographical considerations ..........
2 .Malta'sspecialdependenceupon sea-bed energy resources ....
3 .The requiremcnts of Malta asa developing islandcountry ....
4. The consideration of national security and necessary control of
5. The geographical rangeof fishing activit............
6. The conduct of the Parties ...................
7 .The effects of other detimitations between States of the re. .n
8 .Conclusion ..........................
Chapter XI. The equidistance methodsatisfiesthe test of proportionaiity
in the present case ........................
1. The r&leof proportionality in the present cas.........
2 .The significance of the legal framework of the particular delimi-
tation .............................
(a) The principlc of non-encroachment ............
(b) Equitable considerations applicableto the present case.
(c) The criterion of distanc..................
(d) The principle of equality of States............XVIIl CONTINENTA SLELF - PLATEAU CONTlNENfAL

Annex 6. (1) Denmark-Norway Maritime Delimitation Agreement,
8 December 1965 ; (2)Exchange of Notes constituting an Agreement
betweenDenmarkandNorwayamendingtheAgreementof 8 December
1965concerning the delimitation of the continental shelf, 24 April
1968 ...............................
Annex 7. Iran-Qatar Maritime Delimitation Agreement,20 Septembcr
Annex698..Denmark-United Kingdom Maritime Delimitation Agree-
ments :(1)Agreementof 3 March 1966 ;(2)Agreementof 25 November
1711 ....+,,,...... .. ....... . .......
Annex 9. Iran-Oman MaritimeDelimitationAgreementof 25July 1974
Annex 10. Australia-Papua New Guinea Maritime Boundary Agree-
ment, 18 December 1978 . . . . . . . . . . . . . . . . . . . .
Certification . . . .. . . . , . . . . . . . . . .. , . . . . . . .

Applicationforpermissionta intervene - Requeie findrntewention
REQUET E FiNDTNTERVENTIONDU GOUVERNEME NETL'ITALIE . . . .
1. L'affaireLibyelMahe et l'intérêdt'ordre juridiquede l'Ital. . .
A. Objet de l'affaiLibye/Malte . . . . . . .. . . . . . . . .
B. L'«intéri5d'ordrejuridique »de l'Italie(article62 du Statde
la Cour) . . . .. . . . . . . . . . . . . . . .. . . . . . .
II. L'objetprécisde l'intervention . . . . . . . .. . . . . . . . .
III. Basede compétencede la Cour . . . . . . .. . . . . . . . . .
IV. Conclusion . . . . .. . . . . . . . . . . . . .. . . . . . . .

Writtenobservations on the Applcalion for permissionio intenene -
Observationsécritessurla requêth e findhtenention
OBSERVATlO NSTHESOCIALISP TEOPLE3LIBYAN ARAB JAMAHIRIY ON
THE APPLICATIOF NILED BYITALY FOR PERMISSIO TNO INTERVEN E . .
Introduction . . . . .. . . . . . . . . . . . . .. . . . .. . . .
1. General observations . . . . . . . . . . . . . .. . . . . . . .
II. Italy's allegedinterestaolegal nature that maybe affectedby the
Libya/Malta case . .. . . . . .. . . . . . . . . .. . . . . .
1IV. The allegedbasisoftthe Court'sjunsdictionli. .. . . .i. . .e. .. .
V. Conclusion . . .. . . . . . . .. . . . .. . . . . . . . . . .

OBSERVATIO NSMALTA UWN THE APPLICATIO BNYITALYTO [NTERVENE
1. Summary . . .. . . . . , . . . . . . . . . . . . ... . .
II. The defectinthe Italian position. . . . . . . .. . . . .. . .
A. The vaguenessof the Italian claim . . . .. . . . . . . . . .
B. The absence of anyprior expression by Italy of any relevant
daims . . . . . . . .. . . . . . . . . .. . . . . . . . .
III. The consequencesof the abovedefects . . . . . .. . . . . . .
A.The inadmissibility ofthe Italian Application . . . . . . . .
B. Italy's Application does not satisfy the requirements of the
relevant Articlesof the Statute and the RuIesof the Court. .
1. the ltdian interest. .o. . .f. . . .ysp.... .t. . . .r. .f CONTENTS . TABLEDESMATIÈRES XIX

Page
2 .The Application does not sufficiently specify the precise
object of the intervention.................
(a) ltaly makes"objectY'dependentupon "interest" ....
@) Italy's misapprehension regarding the nature and effect
of the Court'seventualjudgmcni: ...........
(c) The object of Italy'sApplication is obscure......
C. Italis nowestopped from asserting its claim against Maltaby
way of an application to intervene..............
IV. ItaIha nojurisdictional link withcither Party........
V Conclusion ..........................

Annexes tothe Observationsby Moltu
Annex 1 . Note Verbale from the Embassy of Italy dated 8 November
1965 ...............................
AnnexIA. Translation of Annex 1 .................
Annex2. Note Verbale from the Ministry of Commonwealth and
Foreign Affairsdated31 December 1965 ..............
Annex3 . Note Verbale from the Embassy of Italy dated 27 June
Annex3A ..Translation of Annex.3....................
Annex4 . Note Verbale from the Embassy of Italy dated 17 October
1969 ...............................
Annex#A. Translation of Annex 4 .................
Annex 5. Note Verbale €rom the Ministry of Commonwealth and
Foreign Affairs dated 23October 1969 ...............
Annex 6 . Note Verbale from the Embassy of Italy dated 22 December
1969 ...............................
Annex6A .Translation of Annex 6 .................
Annex 7. Note Verbale from the Embassy of Italy dated 20 January
1970' ...............................
Annex7A. Translation of Annex7 .................
AnForeign Affairsdated 24January 1970tr...............ealth and
Annex 9 . Note Verbale from the ltalian Ministry of Foreign Affairs
dated 29Apd 1970 ........................
Annex 9A .Translation of Annex9 .................
. Annex 10. Note VerbaIefrom the Embassy ofItaly dated II May 1970
Annex IOA .Translation of Annex 10 ................
Annex 11 . Note Verbale from the Ministry of Commonwealth and
Foreign Affairs dated 30 May 1970 ................
Annex 12 . Note Verbale from the Ministry of Commonwealth and
Foreign Affairsdated 15July 1970 ................
Annex 13. Note fromthe Embassyof ltaly daied !4 August 1970 ...
Anriexl3A .Translation of Annex 13 ................
AnSecretary,Ministryof Commonwealthand Foreign Affairs,anont19June
1975 ...............................
Annex 15 . Note Verbale from the Ministry of Commonwealth and
Foreign Affairs dated 14November 1975 .............
Annex 16 . Note Verbale from the Maltese Ministry of Foreign Affairs
dated 25 August 1978 .......................XX CONTINENTAS LHELF- PLATEAUCONTlNENTAL

Annex 17. Note Verbalefrom the Embassy of Malta dalcd 25 Septem-
ber 1978 . . . . . . . . . . . . . . . . . . . . . . . . .. . . .
Annex 18. Note Verbalefrom the Embassyof Malta dated 6 November
1978 ...............................
Annex 19. Note Verbale from the Italian Ministry of Foreign Affairs
Annex l9A.6MarTranslation of Annex 19 . . . .. . . . . . . . . . . . . .
Annex 20. Note Verbalefrom the Embassyof Malta dated 6April 1981
Annex21. Note Verbalefrom the Italian Ministry of Foreign Affairs
dated 10January 1983 . . . . . . . . . . . . . . . . ... . .
Annex 2lA. Translation of Annex 21 . . . . . . . . . . . ... .
Annex 22. Note Verbalefrom the Ernbassyof Malta dated 2 March 1983
Annareas immediately to the north of the Malta-Libya quidistance line
Annex 24. Map showing Maltese concessions and Malta-Libya equi-
distance line . . . . . . . . . . . . . . . . . . . . , , . . . . .
Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Oral arguments on the Application for permission to intervene -
Plaidoiries relativesiila requêteà fin d'intervention

Itafor intervention set out by Article 62 of the Statute of the Courtn
ltaly hasan interest of a legalnature . . . . . . . . . . . . .. ..
The delimitation of a number of zones claimed by Malta concerns
actually Italyand Libya only, or Italy, Libya and Malta . . . . . .
Equidistance is not the sole nor even the main criterion in matters of
continental shelf delimitation and, accordingly, Italyenjoys substan-
tial rights in some of the areas in dispute between Libya and Malta
Articles 62 and 63t ofoftthe Statute of the Court: Italy applics forcase
permissionto interveneunder Article 62 . .. . . . . . . . , . . .
The Court will not only decide on the principles and rules of
internationallaw applicable, but will also determine the delimitation
of the areas in dispute. . . . . . . . . . . . . . . . . . . . . . .
TheCourt will beled to decideby implication of some of the conflicting
The abstract nature of the legalinterest which motivatcd Maltais Appli-.
cation for permissionto intewene in the Tunisio j Libyacase . . . .
ltaly has a direct and precise legalinterest which will beaffected by the
operative part of the Court'sdecision . . . . . . . . . . . . . .

L'objetde l'interventionde l'Italie . . . . . . . . . . . . . . . ...
L'objet de l'intervention de 1'Itatie:prise en considérationpar la Cour
diqueespar lesparties principalese . . . . .re. . . . . . .z. . .r. .n- CONTENTS- TABLE DES MATIERES XXI

L'Italiea en vue un objet limitépar rapport au procèsprincipal . . . .
La demande d'intervention de !'Italieest différente de lademande abs-
traite présentéepar Malte dans l'affaire TunisielLibye, car l'Italie
demande rl êtreadmise, directement et concrétement,comme Partie
intemenante . . . . . . . . . . . .. . . . . . . . . . . ... . .

L'absencede différend préalableavecles parties a l'instancen'estpas un
motif d'irrecevabilitt . . . . . . ... . . . . . . . . . . . . . .
Préexistenced'un différendentre l'Italie et Malte: historique des dis-
cussionsentre cesdeuxpays sur ladélimitation du plateau continental
Le principe dit du différendpréalablen'est pas applicable dans le cas
prksent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Réne doit pas exclure l'Italied'une procédurequi risque d'aboutirabàeson
égardàune injustice . . . . . . . . . . . . . . . . . . . . . . .
L'exceptiond'estoppelinvoquéepar Malte n'estpas fondée . . . . . .

PLAIDOIR IE M. CONT(IITALIE) . .. . . . . . . . . . . . . . . . .
Réfutation desobjections de la Libye relatives Q la base de compétence:
signification de l'article81,paragraphe 2 c),du Règlementde la Cour
L'maniérecompléteet autonome Cour dé. .it.l. . .e. . . .p,t.n. . . . . .
Toute restriction de la portéede l'article 62 serait contraire à l'espritdu
Statut et à la missionde la Cour . . . . . . . . . . . . . . . . . .
Indépendancede l'article62 parrapport 8 l'article36 . . . . . . . . .
Différencesentre un procésautonome et une demande par voied'inter-
vention . . . . . . . . . . . . . . . . . . , , , . . . . . , , . .
Lajprincipale en vertu de l'article 36 correspond nécessairement unece
compétence dérivée en vertu des articles 62 ou 63 . . . . . . . . . .
Ledépôt du compromispar les parties principalesentraîne l'acceptation
de toutes les dispositions du Statut de la Cour, et en particulier de
l'article62 . . . . . . . . . . . . . . . . . . . -.. . . . . . . .
La requEtede lltalie ayant trait A l'objetdu litige principd, l'articl62
du Statut constitue une base de compétence suffisante . . . . . . .
PLAIDOIR DIE M. VIRALLY(ITALIE) . . . . . . . . . . . . . . . . . .
L'intervention est undroit qui s'exercesous le contrôle de la Cour et
conformément rlson Statut . . . . . . . . . . . . . . . . . . . .
Difficultésd'interprétation de la base de compdtence offerte par l'ar-
ticle 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lestrois objections de la Libye . .. . . . . . . . . . . . . . . . .
Les deux catégories d'objections possibles à la thèse italienne relativSi
Lesobjections de textece of.e. . . .. .rt.c. .2. . . . .. . ... . . . . .
Réfutation de l'objection tiréede la différencede rédactionentre les
articles 62et 63du Statut de la Cour . . . . . . . . . . ... . . .
Réfutation de l'objection tirée de i'article 81, paragraphe 2 d), du
Règlementde la Cour . . . . . . . . ... . . . . . . . . . . . .
Les objections relativesrll'espritdu Statut . . . . . . . . . . . . . .
La place de l'article62dans le Statut . . . . . . . . . . . . . . .. .XXII CONTINENTAL SHELF . PLATEAUCONTINENTAL
Page

Le pas une exception Bl'article36du Statutts..............62 n'apporte
Absence de contradiction entre le principe du consentement des Etats
et l'article62 ...........................
L'institution deI'intewention: son originalité endroit international et
sesdifférentes significations....................
L'article62 offre une base de compétence suffisante ..........
Réfutationdes critiques fondéessur lesprincipes de l'égalité des parties
devant la Cour et de la réciprocité des droits et des obligations des
Etats partiesau Statut de la Cour .................
Nécessité de prendre en considérationlesdroits éventuelsdes Etats tiers
L'Italie a un intérêtd'ordre juridique portant sur certaines...... de
plateau continental en litigeentre lesparties principales

Partie préliminaire. Attitude surprenante de l'Itali..........
1. L'absencede négociation ....................
2. Une requgte présentée tardivement ...............
Premièrepartie .Analysedu compromis ...............
1. Les différencesentre le compromis de 1976et le compromis de
1977entre la Libye et la Tunisie ................
2. Lecaractérebilatéral des délimitations .............
Seconde partie . Caractérerelatif des délimitations etgarantie pour les
Etats tiers ............................
1. Lecaractèrerelatif des délimitations ..............
2. Etude de l'articl59 du Statut et son utilisation par l'Ita....
Seris.del'articl59 .......................
Utilisation de l'arti59epar l'Italie...............
Conclusion :lesintéretsde lltalie ne sontpas menacés .....

Italy'sApplication is vagueand ambiguous ..............
The alleged legal interest of Italy is not sufficient to justify the
permissionto intervene ......................
ThiCourtlege..............................ffected&y thedecisionof the
The object of Italy'sApplication is not clear .............

Le problémede la compétence de laCour ............
l.Les principes ..........................
1. La définitiondes principes décode directement du chapitre II
du Statut ..........................

La parties: l'adhésionau Statut et l'acceptation d'une base de
compétence ........................
L'acceptation de la compétencede la Cour ne se présume paset
doit s'exprimerde façon claire ............... XXlIl

Puge
2. L'application du principe du consentement au cas de l'interven-
tion ............................ 595
La place de I'artic62 dans le Statut, l'existencede l'article81,
paragraphe 2 c),du Règlement etles rapports juridiques entre
le Statut et le Réglementde laCour confirment la nécessité
d'unebase de compétence .................
L'existenced'une base de compétenceest indispensable pour le
respectet I'kgaiittdes Parties et de la réciprdes droitset
obligations entre les Etats.................
L'argumentation italiennen'établipas l'existence d'une basede
compétencevis-&-visde la Libye ..............
II. L'examende l'argumentation italienne ..............
L'article62n'apas traià la compétence .............
Significationde l'arti8l1.paragraphe 2c).du Réglernent ....
Distinction entre la compétenceau fond crkke par I'article 36 du
Statut et la compétence incidente crpar l'article .....
Réfutationde la thèse italiennesuivant laquelle une base de compé-
tence n'est pas requise au motif que I'Etat intervenant ne dcvien-
drait pas partisil'instance principallBtat intervenant devient
nécessairementpartie .....................
Un compromis conclu entredeux Etats ne créepas une compktence
impliciteen vue de l'interventiond'un Etat tiers.......
La prétendue analogieentre l'article62 et I'artic63 du Statut

ARGUMENT OF MR .LAUTERPACB (T ALTA) .............
The philosophy of the Court in the matter of intervent.......
A potentially multilateral situation does no1preclude a bilateral settle-
ment ...............................
Italy's conduct demonstrates acquiescenceto the equidistance method
History of discussions betweeltalyand Malta ............
Italy'sbelated concern and virtually unidentfiable cla.......
The absence of pnor dispute .....................
So far asthe nature of Italy's allegedinterest is concerned. the Italian
Application isindistinguishablefrom the Maltcse Applicationof 1981
The Court'sdecisioncannot affect Italy'sright............
There is no effectivediference betweenItaly's Application and that of
Malta in 1981 ...........................
Theconclusionsof the Court in 191areequallyapplicableto Italy'sAppli-
cation ..............................

REPLIQU DE M VIRALL(Y ITALIE) ...................
Caractéresfondamentaux de la requktede Iltalie ...........
La requête à fin d'intervention constitue l'exerciced'un droit légitime
La protection offerte par i'article59du Statut est insuffisanteen I'espéce
Impossibilitépour la Cour de statuer sur la dtlimitation Libye-Malte
sans tenir compte des prétentionsde lltalie............XXlV CONTINENTAL SHELF . PLATEAU CONTINENTAL

Page
646
............... 647
REPLIQUEDE bf.VIRALL(Y ITALIE (uile)
1. L'objetde la requêtede l'Italie: protégerses droits et faciliter à la
Cour l'exercicedesa fonctionjudiciaire .............
Si sa requêteest admise. I'ltaliesera Partie intervenante...
II. L'intérêdt'ordre juridiquede I'italieestclairet simple.....
L'Italie aourni toutes les justifications nécessairAscestade de
la procédure .........................

Ill. La base de compktence .....................
Le principe du double consentement est inapplicableaucas de l'in-
tenienlion ..........................
L'intervention italienne remplit toutes les conditions poséespar le
Statut ............................ OF THELIBYANARABJAMAHIRIYA

CONTRE-MEMOIRE
DELAJAMAHIRIYAARABELIBYENNE VOLUME 1

INTRODUCTION

1. This Counter-Mernorialis filedin accordance withAnicle II ofthe
Special Agreement signed by the Socialist People's Libyan Arab
Jamahiriya (hereinafter referred to as "Libya"') and the Republic of

Malta (hereinafter referred to as "Malta") on 23 May 1976 and the
Order made bythe Presidentof the Court in the present case on 26 April
1983fixing26 October 1983 as the time limit for the filingof Counter-
Mernorialsbythe Parties.TheEnglishtext ofthe SpecialAgreementisset
out at pages2 and 3ofthe Libyan Memorialfiledon 26April 1983 in the
present proceedings(the "Libyan Memorial").

Generalcommenis

2. The purpose of this Introduction is to provide some general corn-
ments on the Memorial submitted by Malta (the "Maltese Memorial")
and a link between those comments and the subsequent parts of this
Counter-Mernorial.The generalcommentswouldnot be required in most
cases but are made necessaryby the nature of the Maltese Memorial.At

firstsight, there is a certain appearance of logicand plausibilityabout the
presentationmadeon behalf of Malta. It is,indeed, executed withconsid-
erableskill.Hawever, oncloîerexamination,it isfound tobelargely based
onirrelevancies,to contain assertionsthat are eitheronlypartialy correct
or are distortions andtoargue, withan appearance of logic,that the basic
thesisor objectiveof Malta (Le., theuse ofthe "median linen) isaccepta-

ble and establiçhed law. In these circumstances, it is necessary tomake
some general comrnentson the content of the Maltese Mernorial.
3. There are four general aspectsof the Maltese Memorialwhichcal1

for comment at this stage. They are:
( 1) Malta's economicplea;

(2) Malta's idea of"televance";

(3) Malta'sclaim to bein a "normaln and"simple"situation;and

'Theterm"Libya"rcfcrtsotheStateof Libya anditspotiticalinstit. hatcvtrtheir
ïorrnat therelevantlime.andasmayappearfromthecontexialsotheterritorywhichnow
belongsto theSocialPeople'tibyin Arab Jamahiriyl. shouldalsabenotathatthe
"Libyan ArabRcpublic"as rcfcrretoin theSpccialAgreementbccamcthe Socialist
Pcoplc'sLibyanArabJamahiriyaon 2March 1977.4 CONTINENTAL SHELF Pl

(4) Malta's idea of analogous State practice.

Malta'seconomicplea
4. Malta'seconomicpleaisfoundat the beginningof its Memorialand

ispresentedasthe foundationof its daim based onthe useofthe equidis-
tance method.Thisisthe essential mainspringof Malta'scaseas stated in
the Introductionto its Memorial. Maltais plea,made "at the very outset",
is for a generous allocationof continentalshelfbecauseof its lackofland-
basedresources.It isa pleafordistributivejustice, which,asthe Mernorial

itselfseernsto admit'.isnot relevantto continentalshelfdelimitation.The
politico/economicplea and the promiseof later support is found in these
words:

"Though someof the details will be repeated later within the
framework of the systernatic expositionof the geographical, eco-
nomic and geological circumstances of the Parties, it must be
stated without delay that the presentcase is really about accessto

resources ....The investigations sofar carried out suggestthat the
most promisingareas for the discoveryand productionofoil liein
or near the regions ofMalta'ssouthernequidistanceline. Although
there are also other cogent reasons, this isthe fundamental reality
which underlies Malta's opposition to Libya's assertionof rights

north of that equidistance line2."
5. Tbere islittle ongeographyor geologyin the Maltese Mernorial but

there is much about economics.Yet the economiccircumstances of the
Parties,towhichsucha prominent place isgivenby Malta inthe Introduc-
tionof its Memorial,are not, accordingto thejurisprudence of the Court,
considered tobe relevantto delimitation.Thetefore, it is mostremarkable
that Malta should restits assertionof rights upto the "Equidistance Line"

on extraneous economic reasons.This basic assertion implicitly rejectsa
delimitation of the continental shelf areas appertaining to the Parties on
the basis of "equitable principles"taking into account the circumstances
relevantto the delimitation. Moreover,the assertion doesnot lead to any
logicalresult forpurposesof delimitation. It isaslonishingthat nowhere

does Malta attempt to show how economic considerationslead to the
conclusion that the equidistance methodwould result in an equitable
delimitation of continental shelf areas in the present case.

'Thtst admissionsccmtobeimplicitinthequotationsfromtheAnglo-FrenchArbirration,
andtheNorrhSeacasesgivcninparas.116and 130of theMolreseMemorial.Inpara. 129,
the Maliqe Mcmorialalso has a rcfcrcncc tothe Judgrneinthe Tunisio/Libyacase,
p.76.para.104).Itmighihavcaddedthefinalsentenceof para.71of that Judgmentwhich
rcads:

"Whileitisclcarthanorigidrulesexistastothe exact wcighttobeatiachcdtaeach
clcmcntin thcasethisis vcry farfromking ancxcrciscofdiscretionorconciliation;
Maltese Memorial.para.4.o[Italicsaddcd.]ejusticc."Dl COUNTER-MEMORIAL OF LIBYA 5

6. Although the economicconsiderationsof the Parties are irrelevant
to the questionof delimitation,the assertions madeinthe Maltese Memo-
rial are in general either misleadingor wrong and cannot be left unan-

swered. It iç necessary to restore the balance, and to do this the
presentationof some detail is unavoidable'.Malta has made considerable
play with the importance of the case for Malta, but it is at least as
important to Libya.

Malta's iden of'ielevonce"

7. It is difficuto discernwhat testor criterion the Maltese Mernorial
appiiestodeterminewhat isrelevantand what isnot.The Memorialseems

to ernphasisefactorswhichare without relevanceto the questionof conti-
nental shelf delimitation and to minimise or ignorefactors which are
clearly relevant. It attaches more importance to the attempt to create
sympathy for Malta than to an examination of what is relevant to delimi-
talion. Thus, in addition to economicconsiderations,there isan appeal to

political factors, such as neutralityz.the concept of an island developing
country3and the factthat Malta is an islandState rather than a mainland
State4. There is also an appeal to marginal factors, such as Maltese
fisheriesand securityinlerests,whichsofar as Libyaisconcernedcarry no

weightin the presentcase, In this connection,the almost totaldismissalby
the Maltese Memorial of geomorphology and geology is extraordinary,
and perhaps rnostrernarkable is the scant treatment of geography which
stresses the distance and the opposite relationship between Malta and
Libyabut choosestosuppressthe vital factorof coastal lengths (and inso

doing the test of pr~portionality)~.

Malfa's clatm tube in a "normal" and 'Simple s"ituation
8. A basicdefectintheargument presentedinthe Maltese Memorialis

that it starts from two ill-founded presumptions. The first is a presump-
tion of law that the equidistance method isper se equitable as between
"oppositeStates" in a "normal" situation and thereforemust be equitable
in the case of LibyajMalia. There is no warrant fot sucha ptesumption

whichhas neverbeenaccepted in jurisprudenceQr inthe general opinion
ofStates7,and isnot supportedbythe practiceofStatesawhich occupiesso
much of the Maltese Mernorial.Basingitself on this presumptionof law,
Malta is forced to depart from the well-establishedprinciple that each
caseof continentalshelfdelimitation hasto be consideredand decidedon

'See Chapter3. ScctioA.bclow.
See Chapter3, Scction B.2.,below.
'Sec Chaptcr3. ScctiA.4.,below.
'Sec Chapter3, Section 8.3.. andChaptcSectio8.2.. below.
'See Chapters2 and6, bclow.
'See Chapter5, SectionA.1..below.
'See Chapter5, SectioA.2. andA.3.below.
aSec Chapter5.SectionC. below.6 CONTINENTALSHELF [41

the basis of its own facts and circumstances. The second ill-foundedpre-
sumptionisoneof füct;for Malta assumes,asa fact,that the Libya/Malta
relationshipisboth "normal" and "simple". To preservethis presumption,
the Maltese Memorial glossesover the most important factors of geogra-
phy, geomorphology and geology'. The truth is that no two cases are
identical and it is noteasy to find cases whichare even basically similar

geographically to that of the Libya/Malta situation. Moreover, the
Libya/Malta relationship is particularly exceptional. Itis distinguished
by features such as the fact that Malta is a group of small islands, is
locatedin aconfinedarea ofthe Mediterranean and hasa veryshort length
of coast facing Libya, whereas Libya hasa long coast facing northward

across the Central Mediterranean2.It isalsodistinguished by the features
of the sea-bed in the area around Malta! It may truly be said that to
characterise the situation as "normal" and "simple"is a distortion, not
merely of geography, but of nature itself.

Malro's idea ofanalogous Srare practice

9. The characterisation of the Libya/Malta situation as "normal" is
essential to the appeal to "analogous" State practice in the Maltese

Memorial. It enables the Memorial to gloss over the difference between
the Libya/Malta situation and the situations in the delimitation agree-
ments mentioned in this Memorial. Apart from this basic defect, the
examination of the delimitation agreements in the Maltese Memorial is
deficientinthree important respects. Itdoes notanalyse the agreements in
order to ascertain what circurnstancesmay havebeen taken into account

and it does not discuss the many individual cases involvingStates with
opposite coasts or islands whereequidistance did not form the basis of
delimitation. Nor does itcompare the situation of Malta with the situa-
tion in each of the cases to which the agreements relate. It also fails to
estabiish wharis regarded as "normal" in the examples cited. These are

matters which will be considered in detail later in the present Counter-
Mernorial'. The appeal to "analogous" State practice is also deficient in
another respect: it is far from exhaustive.Many delimitation agreements
are notcitedand it isimpossible todraw any generalconclusion fromthose
examplescited by Matta. Evenan exhaustiveexamination of delirnitation

agreementssofar conduded, such as Libya hasattempted,cannot produce
ready solutionsto the problems that have to be solvedin future delimita-
tions and dictate what in each particular case should be regarded as
equitable. Thislimited utility isinevitablein any examinationof existing
delimitation agreements. However, having regardto the partial treatrnent
ofso-calledState practice inthe MalteseMemorial, it has beenconsidered

'See, foexample,paras.114, 131,215and272of theMaltese Memorial.
'See Chaptcr2,SectionB. bclow.
'Sec Chaptcr2.SectionC,below.
'Sec Chaptcr5,SectionC,below. [SI COUNTER-MEMORIA LF LIBYA 7

necessary to setout ali the knownagreementsas exhaustivelyas possible.

Toavoidencumberingthis Counter-Mernorialunduly,this has beendone
in a separate Annexof delimitation agreements'. In brief, in the light of
the Maltese Memorial. it isnecessary:

(a) to make acloserexaminationofthe examplescited in that Memo-
rial. and

(b) to examinealso the remainderof existing delimiiation agree-
ments'.

Arrangementof this Counter-Mernorial

10. It would notbe feasibleor helpful toexamineeverystatement and
contentioninthe Maltese Memorial.A point-by-pointcomrnentarywould

becometediousand confusing.For this reason,noatlempt has been made
to dealexplicitlywithevery pointinthe Maltese Memorial on whichthere
rnight be some differencebetween the Parties. This does not irnply.
however, Libyanacceptance of points not dealt with. Where there is no
direct commentin this Counter-Mernorial, Libya reserves its position in

case it shouldbe necessaryto comment later. In this Counter-Mernorial,
Libya continues its effort to contribute to the finding of an equitable:
solutionin accordance with international law. Nevertheless,examination
of the Maltese Mernorial inevitablyinvohes some criticism which may
appear sharp. Thisimpliesnoanimosityon the part of Libya whichis,and
has been throughout, anxiousto maintain the most friendlyrelationswith

Malta.

11. In an atternpt to curtail the length of the Counter-Mernorial,
Chapters I and 2 dealing with the facts also include cornmentswhich
might have beenput into later chapters on the lawand its application. In
thisway, some repetitionisavoided.Also,bearinginrnindthe needto keep

the Counter-Memorial as short as possible,no chapter has been included
on the interpretationofthe Special Agreementsince,havingregard to the
treatment ofthisaspectofthe matter in the Maltese Mernorial,there isno
.need to add to what is said in the Libyan Memorial'. In general, Libya
respectfully invites the Court to regard its Memorial and this Counter-
Memorialas a unifiedpresentation of its case, sincethe fact that portions

of the Mernorial have not been repeaied means that they have been
maintained and notabandoned by Libya. One substantial addition, how-
ever, has beenmade. For reasonsexplainedabove,it hasbeennecessary to
add a fairly substantial chapter, Chapter 3, on "Economic and Other
Considerations Introducedby Malta".

'SccVol. Iof thiCountcr-Memotial.
'Sec Chaptcr5, ScftiC. bclow. SecalsotheAnnexof delimitatiagreements.
'Sec,in particul. ibyrrnMernorial,Chaptcr5, whichexpressesLibya'spoonthis
mattcr.8 CONTINENTAL SHELF [61

12. The Table of Contents to the Counter-Mernorial gives sufficient

indication of thesubjects covered by Part [-''The Factual Elements",
Part II-"The Law",and Part III-"Application of the Law to the Facts
and Relevant Circumstances of the Present Case". An Annex dealing
in somewhat technical terms with the "trapezium exercisen has been
includedat the end of this Volume. The Annex of delimitation agree-
ments, to which special importance is attached by Libya, is found in
VolumeII, Parts 1and 2. Volume IIIcontainsthe DocumenraryAnnexes

and a pocketsection for maps. Finally,it isdesired to stress Libya'saim
ofachievingan equitableresult and the viewsdevelopedin this connection
are in Chaptersand 8in Part III. Chapter 8alsocontainsa comparison
ofthecases presentedbythe Partiesandoftheapproachesofthe Parties to
delimitation andan equitable result. PART 1

THE FACTUAL ELEMENTS CHAPTER 1

THE BACKGROUND OF THE DISPUTE

Introduction

1.01 This Chapter is concerned with certain aspects of the history of
eventswhichledto the emergenceof the disputeand its submissionto the
Court. Itis rnainlydirected to eventswhichoccurred beforethe signature

of theSpecial Agreement in May 1976.Toa certain extent, the accounts
of those eventsby the two Parties in their Memorialsare on similar lines.
Libya has, however,been at pains to setout the relevant facts as objec-
tively as possible in Chapter 4 of its Memorial. It is not intended to
examine hereeverydetail of divergence betweenthe two Memorials,but
where the facts as stated in the Maltese Memorial differ from those as

stated in the Libyan Mernorial'.Libya maintainsitspositionas stated in
the Libyan Memorial.

1.O2 Neverthelcss,havingregard to certain contentions madeor insin-
uated in the Maltese Memorial, it is considered necessaryto offer some
clarification.Thisappliesparticularly to Malta"statusquo" contention,
the total invalidityofwhichsapparent, notonlyon the faceofthe Maltese

Mernorial ilself, but aiso in the light of the factual history.

1.O3 In order to put the matter into proper perspective,a brief resumé
ofcertain aspects of that historyis givenbelow inSectionsA, B,C andD
of this Chapte?. It must,however,be observedat once that the starus
quocontentioncannot betaken seriously.It isnot consistentwiththe facts
and is notexplainedorsupportedbyany reasonedlegalargument.There is

no relianceon estoppelor preclusion oragreement (expressor implied).
This is notsurprisingbecausethe required elementsare lacking. It should
be notedthat, whitethe hollownessof the srarus quo contentionisappar-
ent from the facts and so might be thought not to justify the detailed
treatrnent inthe followingSectionsofthis Chapter, theseSectionshavean

important bearing onother aspects of the case.

A. Legislation
.O4 The contentionof Malta, basedon an allegedsrarusquo,emerges

in Chapter IV of the Mallese Mernorial entitled "Malta's Equidistance
Linen. In this connection, Malta has chosen to ignore the effect of the

'Libya nernorialChapte4;set also Chapter9, SecC.on
'The sub-titlcsare as follows:
SectionA.Legislaiion (paras.1.04-1.07).
SectionB.Exchanges Bctwccnthc Partiesin 1972-73 (paras. 1.08-1.13).
SectionC.PctroleumActivitofthe Parties (paras.1.14-1.22).
SectionD. The "No-Drilling"Understanding(paras. 1.23-1.27).12 CONTINENTAL SHELF [101

Libyan legislationof 1955 which patently did not respect "the equidis-
tance linenfor the northern boundaryof Libyancontinentalshelfjurisdic-
tion in the directionof Malta'.

1.05 In Chapter IV,under the sub-title "1.Malta's Delimitgtion",it is
clairnedthat the Continental Shelf Act 1966*"established a rnedian line
delimitation". This was an entirely unilateral act%nd couldnot, in itself,

"establish"a "delimitation"ofthe continentalshelfasagainstother States
in the area. Such a step wou1dbe contrary to the fundamental principle
that delimitationis to be effectedby agreement. Thisprincipleis incorpo-
rated in both paragraphs 1and 2 of Article 6 of the 1958Conventionon
the Continental~helf,-towhichMalta (but not Libya) isa Party. It would,

therefore, be very surprisingif the 1966 continental ~heif Act were to
.urp-rt "unilaterally" to establish a rnedian line boundary. On the con-
trary, Section 2 of the Act itself put agreement first and the median line
second.The sectionprovided: "si howeverthat where inrelation to states

ofwhichthecoastisoppositethat of Malta it isnecessarytodetermine the
boundariesof the respectivecontinentalshelves,the boundaryofthe conti-
nental shelf shall be that determined by agreement between Malta and
such other state or states ...".This provisionat least contemplated an
attempt at agreement with States with opposite coasts. It is true that the

abovequotation continues "or, in the absence of agreement, the median
line...",but this cannot be read as overridingthe obligation to seekagree-
ment or to negativethe prospectof agreement heldout by the earlier part
ofthe provision. On the faceofit,the 1966Act did notpurport to establish
the delimitation linebetweenthe continental shelvesof Malta and Libya.

Thiscould notbe donebya mere referenceto the "median line" especially
where,as in this instance,the extent of the Maltese continental shelf was
expressly limited bythe "exploitability" test:nor can the provisionfor
"agreement" be brushed aside (as paragraph 106of the Maltese Memo-

rial tries to do) by saying that it "merely refiected the possibility of
alterations derived from the necessary adjustments of a negotiated
settlement".

1.06 From the international point of view,it cannot be seriouslycon-
tended that the 1966Continental Shelf Act "unambiguously" established
a median line boundary'. If so, the necessary implicationwouldbe that

'LibyanMemorial.paras.4.20-4.23. Thc1955PctroleumLawand Petroleum Regulation
No. 1 are foundat LibyanMemorial.Annexes32 and33.
' Fortcxtsec LibyanMernorial,Anncx 15.
Indted,thisisacknowledgebyMaltainpara.106ofits Memoriablythe expressefcrcncc
to"unilatcrarlneasureT.hisiswherethcriarusquocontentifirstcmcrgcs:ilisretatedto
34, 35. 36, 64 and65 of theMalteseMemorial.,naccuraterroncousfoundinparas.32.
'Para.202of theMalteseMemorial.whcrcthesialusquopointsccmstocmcrgeagain.dccs
notactuallygo thatfar.Itsays,"The provisosf tAct (insection2) statcdunambigu-
ouslythat.intheabserofagreement, thceontinentalshcfoundary'inelationtostatesof
whichthecoastis oppositcthatof Malt..shallbc ..the mcdianline'".Cl11 COUNTER-MEMORIA LF LIBYA 13

the unilateral act of Malta issuperior to the requirement of settlement by

agreement under internationai law.That this is the present intention of
Malta seems to be confirmed by the remarkable sentence at the end of
paragraph 106of the Maltese Memorialwhichreads:"The contingencyof
the negotiated settlement ofuch a controversycannot besaid to impugn
the legal validity ofthe median line as constitutingstatus quo".The
plain fact is,however,that the 1966Continental ShelAct, whichclearly
providedfor establishment of the "boundary" by agreement, did not cal1

for anyreactiononthepart of Libya.Ifthere wereanydoubt onthat point
it wouldberernovedby the subsequent conductof Malta asdemonstrated
by its anxiety toecure the agreement of Libya to"Malta's Equidistance
Line" as eventuallyshownon a map producedto Libyan expertson 12/13
April 1972.Moreover, according toparagraph 107ofthe Maltese Memo-
rial, it was not until April 1973that Malta took steps which,in its view,

"involvedthe implementationof the median line delimitation established
inMalta'slegislationof 1966".It mayalsobeobservedthat Malta did not
notifythe 1966ContinentalShelf Act to Libyaand gave Libyanonotifica-
tion of L.N.41 of 24 April 1973until a copy wascommunicated by the
Maltese Note Verbaledated 8August 1974'.

1.07 Thus it is clear that there never was any foundation for the
statement madein paragraph 203of the Maltese Memorial (and reflected

in paragraph 272(k) )hat "the firstdisturbance of staius quo consti-
tuted by Malta's legislation ofJuly 1966took placein September 1974,
and resultedfroma Libyan initiative".No suchcontentionwasreliedupon
by Malta throughout the discussions with Libya.It is believedto appear
for the firsttime in the Maltese Mernorial. Moreover,it isinconsistent not
only withthe Maltese legislation bualso with subsequent history, some
aspects of which are discussedbelow.

B. ExchangesBetween theParties in1972-73

1.O8 It seemsto be commonground that discussionsbetweenthe Par-
ties began in July1972'. However, the accounts diverge immediately.
The Libyan Memorialin paragraphs 4.30 to 4.32givesthe facts concern-
ing an important meeting in Malta on 11July,as wellas the meetingon
f2 and 13July, but the Maltese Memorial (paragraphs 63and 64) makes
nomentionof the meetingon 1 1July. As maybeseenfromthe minutesof
that meetingand the memorandum handed by the Maltese to the Libyan

delegationa,the discussionsof 11July were wide-rangingand the "median
line"wasonlyoneofseveralsubjectsraised onthat occasion.Itwas not on
the agenda. Itwasraised by Malta but not discussedin substance.
'LibyanMcrnorial.Anncx53. Salsopara.1.12 andSectionC, bclow. Morcovcr,no
concessiwoasgranttin thisara covcrcdL.N.41 byMaltauntil 1974.
'Ncgotiationswith Tunisiabcganseveralyearscarlier.
tibyan Mernorial.Annexes37(a) 37(b).14 CONTINENTAL SHELF Il21

1.09 In paragraph 36 of its above-mentionedmemorandum the Mal-

teseGovernmentsuggested"that discussionson the median linebe heldin
Matta1." The responseof the Libyan delegationappears from the min-
utes'. They explained that there was a Standing Cornmittee in Libya
dealing with the subject and suggestedthat an approach be made to that
Committee.The last paragraph of this part of the minutes puts the posi-

tion succinctly. It States:

"The Maltesedelegationwereprepared to signa bilateral agree-
ment with Libya onthe Median Line. The Libyan Delegation

stated that this was notpossibleand that they would be sending a
delegation to Malta to negotiate the necessary agreement. The
Malta Side agreed to make available the CO-ordinatesof the
Median Line."

The last sentencemakes it clear that the CO-ordinatesfor"Malta's Equi-
distance Line" had not previouslybeen communicated to Libya. They
werein factcornmunicatedto the Libyan visitorsonthe followingday, i.e.,
on 12 July 1972.

1.10 At this point, some clarificationisnecessary.The membersofthe
Libyan delegationon 12113July werenot the sameas the 1 1 Juiy delega-
tion. They were Mr. Suleiman Atteiga, Mr. Muftah Unis and Mr.
Ahmed Garta who had been to Monaco and Italy, and had corne on to

Malta. Their instructions were to gather information onthe question of
continental shelfdelimitation3. SO far as the Libyan delegationwascon-
cerned,the discussionson 12and 13July wereofan exploratorycharacter
and theyforesawthe possibilityofa further meeting beingheldinSeptem-
ber. No commitmentwhatever wasgivento accept "Malta's Equidistance

Line" and no suggestion wasmade on behalf of Malta that it wasestab-
lished as the then existing siarusquo. In these circumstances, it is not
surprisingthat discussion focussedon the technical questionof the use of
Filflaasa basepointwhichcertainlyrequired someexplanation,and it was
natural that the Libyan delegation shouldwishto reserveexamination of

the MalteseCO-ordinates for theappropriate experts4.Thiscouldinnoway
be interpreted as acceptance of the Maltese proposal, whichwould have
been beyond their authority as was made amply plain to the Maltese
delegation.

Libyar~rmz~l, Anncx37(b)p ,.10.
'Ibid.,Anne37(a).
Thiswasnotthcdclcgationcontemplatdintheminutofthat Meeting tobesenttoMalta
'to ncgotiatethentctssaryagreement".Theyhadnoauthority cithcrtoncgotiateorto sign
an agreement,houghthcy wcrcina positionto receive informconcerningMalta's
'ToLibya'sknowlcdgeMaltahasncvcrindicatd prcciscly what"basepoithasusd in
the constructionof its "mcdianlinc". 1.11 It is appropriate here to mention the mystery surrounding

"Malta's baselines'". No doubt, this mystery will be clarified in due
course, but Libya has beenunable to find out when orhowthe Maltese
baselines were published andis no1aware of the evidenceon the basis of
which Malta alleges,(in paragraph 32 of the Maltese Memorial) that:
"Theselineswere notifiedto Libyain July 1972".They were notcommu-

nicated to either of the Libyan delegations on 11 July or on 12-13July
1972.They are not evenshown on the map in Annex 4 tc the Maltese
Memorialsaid to haveaccompaniedthedraft agreementpresented tothe
Libyan delegationon 12 July 1972.

1.12 On the other hand, it is clear that, in 1972,Libya had not in any
way accepted the equidistance approach of Malta, and that Libya

unequivocallyrejected that approach on 23 April 1973when the Libyan
delegation handeda Libyan draft agreement to the Maltese delegation.
There is noneedto repeat the detailswhichare giveninparagraphs 4.33 to
4.36 ofthe Libyan Memorial. However, it maybe worth mentioningthat,
on 7 February 1973,during a meeting withthe Maltese Prime Minister,

the Libyan MinisterofTransport had suggesteda delimitationtaking into
accountthe iengthsofthe coasts.Sothe MalteseGovernment already had
warning of the rejection of "Malta's Equidistance Linen. This may
explain,though perhapsnot excuse,the action apparently taken by Malta
whilethe talks of23and 24April 1973wereactually inprogress.Not only
did Prime MinisterMintoli send a message to ColonelGhadaffidated 23

April 1973whichimmediatelyrejected the Libyan proposa12b ,ut alsoon
24April 1973 (according to paragraph 35 of the Maltese Mernorial) the
Governmentof Malta publishedthe Notice Inviting Applications forPro-
duction Licences(L.N. 41 of 1973) in a supplement to'rhe Government
Gazette3.Notwithstandingthe positionof Libyaas embodiedin the draft

agreement submitted to Malta on 23 April, the Notice L.N. 41 offered
Blocksreaching as far south as "Malta's proposedequidistanceline4".At
that tirne,there wascornpieteopposition betweenthe proposalsof the two
sidesand in reality the negotiatingprocesshad scarcelybegun. Onething
was abundantly clear, Libya had not accepted "Malta's Equidistance
Linen.

1.13 As indicated in both Memorials, discussions continued into 1974
but the deadlock remained.Paragraphs 70 and 71of the Maltese Memo-
rial, however,might be read as suggestingthat Libya did not respond to
Malta's request for discussionsIn fact, followingthe Mallese Memoran-
dum dated 1January 1974,Prime Minister Mintoffwas himselfreceived

'Furthrrdixussion of thesebaselinesis atpara.2.35, bclow.
LibyanMemoriul,para.4.37.
aAsnotd inpara.1.Oabovc,iwas onlybytheNoteVerbaledate8August1974thatthis
Noticewas notificdto Libya.
'Maltese Memoriul,para.65. 16 CONTINENTAL SHELF [l4]

in Tripoli on 15-16 February and there was a further visit of a Maltese
delegation to Tripoli on 12-13 March 1974 for the purpose of discussing
the questionofthe continental shelf. But,as indicated in paragraph 4.41 of
the Libyan Memorial and paragraph 72 of the Maltese Memorial, by 10

April 1974discussions had turned awayfrom the question of delimitation
to that of means for the settlement of the dispute. To avoid any risk of
misunderstanding, it should be noted in this connection that the remark,
attributed in paragraph 72to Mr. BenAmer. about a compromise (said to

have been made on 10 April 1974) related not to the substancebut tothe
means of resolvingthe matter.

C. Petroleum Activities of the Parties

1.14 The historyof the grant of concessionsby the Parties isdealt with
very briefiy in the Maltese Mernorial' and with greater detail in the

context of a chronologicalaccount in the Libyan Memoria12. Of particu-
lar significanceis the omission3 inthe Maltese Memorial of reference to
Malta's 1970 offer for bidding of two "blocks" to the north and east of
Malta mentioned inparagraph 4.29of the Libyan Mernorialand shownon
@ Map 7 facing page 56 therein. The area of those two blocks might have

been regarded as falling within the depth and exploitability test incorpo-
rated in the Continental Shelf Act 1966 for the purpose of defining
Malta's continental shelf. Their omission, for whatever reason, does
ernphasise thatit was not until the end of May 1974 that Malta in fact

purported 10 extend its reach southward in the direction of "Malia's
Equidistance Line" by the grant of the concessionto Texac o alta Inc.'.
Extension lo that line only came in October/Novernber 1974 with the
grant of Blocks 14 and 16 to JOC and Aquitaine respectivelys.

1.15 Meanwhile, Libya was also considering its position and going

through the processof preparing to grant concessionsoverofï-shoreareas.
As already stated in the Libyan Memoria16,Concession No. 137 was

'Paras4.07. 4.28. 4.29, and84.43-4.57.
The significanccof this omissionisunderlincdbythc mentioninparas38ofcvcnts
saidtohaveoccurrcdin 198I.longaftcrthesignature ofthe SpecialAgreementie.g.,6,
the grant of additional concessionsby Malta "closerinshore,just to the wcstand south of
Malta and Gozo". Morcovcr,the rcfcrcnceto thc "surrcndcr" of ConcessionsNC 35A and
NC 358 by Exxon rnaycrcatc a falsc impression.These two Concessionswert not cxtin-
guishtd.Havingbccn rclinquishedby Exxon(in 1980) thcy wcre formallyassigncdto the
NationalOilCorporationof Libyain 1981.ThcConcesNCo35A was latetvestcdinSirtc
Oil, a Companyset up by the National Oil Corporation.
' MalteseMernorial.par36. This was overa ycar after Libya's rcjcctionof equidistance
was madcknownta Malta by the Libyan countcr-proposal.
'Scc the Tableai fn.1to16bclow.Asa mattcr offact,contrary tothesuggestionmadein
para203 of thc MolteseMemorial,the Libyan grant of coriccssionin Scpt1974r
rcaching north of thc equidistance linc actually preccdcd the MaltinOcteants
bcr/Novcmber 1974 which werethc first to rcach as far south 8s that linc.
' Para. 4.28.1151 COUNTEK-MEMORIAL OF LIBYA 17

granted on 30April 1968.Libyawasalsodevelopingits policyofnational-
isation and direct equity participation in concessions.us, in December
1971, al1 British Petroleum's concessionsand interests in Libya were
nationalisedand, during late 1972and early 1973, Libyawasnegotiating
with foreignoilcompanies, including TexacoOilOverseas Co., concerning

direct Libyan equity participationin concessions.As stated infootnote6
on page 61 of the Libyan Memorial, Law No. 66of 1973leffected the
nationalisationand transfer tothe State of51%of al1propertiesin Libya
owned by Esso Standard of Libya Inc., TexacoOil Overseas Co. and

California Asiatic Oil Co. Texaco'soil activitiesin Libya came to a halt,
and Texaco failedto reach agreement with the Libyan authorities on a
formula for participation. Consequently, on Il February 1974, the
remaining 49% of Texaco'sconcessioninterests were nationalised.On 31
May 1974,Texacowasgranted by Malta concessionsover Medina Bank

Blocks 2, 3, 4 and 9. While these facts have no direct relevance to the
questionof delimitation in the present case, they may shed some light on
the themeofpressure bythe oilcompanies forthe conclusionbyMalta ofa
"medianline"agreementwith Libya whichappearsinthe Maltese Memo-
rial.For example,there is the skternent of23 April1973, mentionedin

paragraph 66 of that Memorial, in connection with the solicitation of
tenders for the offshorereas that "it isnowimpossiblefor usto evadethe
commitments we have made with international oil companies". This is
followedby the assertion in paragraph 73, made with reference to the

grant to Texacoon 31May 1974: "Eventually, Malta found itself in a
position in which it could no longer delaythe conclusion with Texaco
Malta Inc. of an agreement for offshoreoil exploration." It is not clear
whether the pressurewasonly exertedby Texacoor aho by JOC Oil Ltd.
and Aquitaine Malta S.A.,et al., whichwere mentionedin paragraph 36

of the Maltese Memorial ashavingbeengranted concessionsby Malta on
31 October 1974and 19 November 1974 respectively2. What is known,
however,is that during 1974JOC Oil Ltd. was in negotiation withthe
Libyan authorities about concessions inthe Medina Bank area, but that
they refused to contract with that Companyfor technical reasons.

1.16 Another point on which clarification seemsto be required is the

sequenceof eventsin the grant of concessions.Paragraphs 37,77 and 203
ofthe Maltese Memorialmight betaken as suggestingthat Libyan action
in this connection onlyfollowedafter similar action taken by Malta. Any
such suggestionwould not correspond withthe true sequenceof events,
whatever legal significancethat sequence mightbe thought to have.

'The texof theLawdated1 Septcmber 1973is attachcdDocumeniaryAnnex 1.
'AlthoughJOCOil Ltd.andAquitaineMalta,ciO/.as welas TexacoMalta Inc.art
mcnlioncdas grantcof concessionispara.36of thMallese Mernorialonly Tcxaco
MaltaInc.is mcntiondinpara73,andnooilcompanicsarc namcdinparas.70and 71.18 CONTINENTAL SHELF El61

1.17 Evenbefore 1974,Libya was already preparing and negoliating
forthegrant ofconcessionscovering(inter dia) the Medina Bankarea. It
may be recalled that, by 1974,the Libyan methodof granting "conces-
sions" was by way of Exploration and Production Sharing Agreements

(EPSAs) and this wasthe case as regards the concessionareas NC35A,
NC35B and NC53. There isno foundation for the suggestionthat Libya
was simply followingin the footsteps of Malta or that there was any
significant delayon the part of Libya in making its grants. This is seen

from the chronologyof eventsin 1974'which revealsthat Libya entered
intoagreementsbeforethe Texam concessionsgranted by Malta and that
the twoLibyanEPSAsgranted inthat year precededMalta'sOctober and
November concessions. Thus, the stepstaken by Libya shownodelayand

inthemselvesamount to a further firm rejectionof"Malta's Equidistance
Line".
1.18 As appears from Map No. 3 in the Map Annex submitted by

Malta withits Memorial,the grant of a concessiontoTexacooverMedina
Blocks 2, 3, 4 and 9fellfar short of reaching as far south as "Malta's
EquidistanceLine". Malta took nostep to inform Libyaof this grant, but
it had"come to the knowledgew'oL f ibyawhichimmediately recorded'its

reservation with the Government of Malta as regards this action" by a
Note Verbaledated 30 June 1974'. This Note again showedthe lack of
aquiescense by Libya in Malta's equidistance line. It was followedbya
further Note Verbale dated 14 July 1974from the Libyan Ministry of

Foreign Affairsto the Embassy of Malta in Tripoli'.
1.19 At the time of the Note Verbale of 14 July 1974, Libya was

havingto relyon informationfrompublic sources, havingnonedirect from
the Governmentof Malta. Asappears fromthe text, theNote Verbalewas
itselfasedon an item publishedin "The Timesof Malta" of1 July 1974
Ditein1971 Rrtkr ofCnat Am
- -
14April LibyajTotal Principlcsof NC 53
Agreement
16April Libya/Esso Principlcsof NC 35A and
Agreement NC 35B
31 May Maltaj'léxaco Conctssion Bloch 2. 34and 9

29 Scptcmbcr Libya/Esso EPSA NC 35A and
NC 35B
13Oftobcr Libya/Total EPSA - NC 53
31October MsltajJOC Concession Bloch 10, Il and
14
19 Novcrnbcr Malta/Aquitaine Concession Black16
Consortium
(Thedateof July 1977forthe ToEPSA givenonMapNo. 3 inthe MapAnncxto the
MalteseMemorialisnotcorrect.)
LibyanMemorialAnncx47.
'Ibid., Anncx48. Boththis Notc Vcrbalt anearlitrone dat30 Junc 1974arc
mentioncdin para.4.49 ofiibyan Mcrnoriul.1171 CoumER-MEMoRIAL OF LIBYA 19

containing a warning to ships and fishingboats to stay away froa ship

whichwould becarrying out a seismographic surveyduring the following
twornonthsat a distance 40milessouth of Malta between theparallels of
latitude 34" 26' N on the south and 35" 06' N on the north and the
meridiarisof longitude14" 50' E on the Westand 15"32' E on the east.
While requesting from the Maltese authorities appropriate details about
this information,ibya firmlystated itsownposition,- namelythat both

the Maltese agreement with Texaco of 31 May 1974 and the survey
mentioned above "fa11within a part of sea-bed area which is subject to
negotiations betweenthe twocountries with the viewto determine which
appertains to each countryn.Here once morewehave a clear challenge to
the equidistance line.

1.20 No reply havingbeen receivedto the Note Verbaledated 30June
1974,Libya againrequestedinformationby a Note Verbaledated 17Juiy
1974concerningthe granting by the Maltese Government of the right to
prospect foroilsouth ofWMalta to the Texaco Oil Company1. The Note

also asked foa chart showingthe area inwhichprospectingfor oilwas to
take place.Malta acknowledged receiptof the Notes of 30 June and 17
July by a Note dated 18July 1974e. It also acknowledged receiptof the
Libyan Note dated 14 July 1974 by a Note dated 25 July 19743.

1.21 At this stage,the existenceof a disputewas clearlyestablished.If
there wereany doubt onthis point followingthe statement of theirppos-
ing positionsthat emergedinApril 1973, it was putbeyonddoubt in April
1974 whenMalta put forwarda proposalforsettlement byarbitration and
discussionsbetweenthe Parties turned to considerationofeansofsettle-
ment of the dispute. However,if any further evidencewere required, it

would be provided by the Maltese Note dated 8 August 1974 which
confirmedthe details ofthe area within which the seismographic survey
was taking place, claimedthat the area fellwithinthe continental shoff
Malta and declined to accept the reservation made by Libya on30 June
1974with regard to the granting bythe Governmentof Malta of rights to
Texaco Malta Inc. for oil exploration. As indicated in paragraph 1.06

above, it was by the Note of 8 August that for the first time Malta
transmitted toLibya a copyof Legai Notice 41 of 1973said tohave been
issued as a supplement to theMaltese Government Gazette of 24 April
1973.

1.22 By this time, the opposition between Libya and Malta on the
question of continental shelf delimitationas al1too obvious.It is not
surprisingthereforethat both Libyaand Malta directedtheir objectionsto
the companieswhichwereinterestedincarryingonactivitiesinconcession
areas affectedby the dispute.There is noneedto repeat the accountgiven

LibyanMernorialAnncx50.
'Ibid .,nex51.
'Ibid.Anncx52.20 CONTINENTAL SAELF [la]

inparagraphs 4.51to 4.57ofthe Libyan Memorial but itmay be observed
that, when in 1974and 1975ESSO Standard Libya Inc.and Total were

engaged in carrying out seismic exploration which extendedinto areas
claimed by Malta, objections wereaddressed by Malta to the cornpanies
concerned. Maltais first complaint was by its letter dated 26 November
1974addressed to Messrs.Seismograph Service(Marine) Ltd'. For its
part, on 8 June L975 (as stated in paragraph 4.52 of the Libyan Memo-
rial), Libya addresseda letter in sirnilar terms to each of the Maltese

concession holderspointing out that the areas comprised in Maltese
Blocks Nos. 2, 3, 4, 9, 10, 11, 14and 16"constitute a continental shelf
upon whichthe Libyan Arab Republic maintains full sovereignty" and
demanded a firm assurance from each Companythat exploration and
drilling activities were not beincarried out within the said areas. On its
side, Malta wrote a \etter to the Libyan concessionaireTotal on 17 June
1975'sayingthat Malta was"informedthat yourCompanyiscarryingout

oil explorationactivitiesin the offshorearea in the Mediterranean northn
of the medianline.The letter requested "a categoricassurance from your
Companythat no suchexplorationordrilling activitiesare being orwillbe
carried outinany part ofthe aboveareaw. In its replydated31 July 1975',
no such assurance or undertaking was given by Total. On the contrary,
Total affrmed its concessionaryrights granted by Libya and merely said
that the problern raisedby Malta was oneconcerningthe exerciseofrights

by Malta and Libya overthe continental shelf. This answer gave no
satisfactionto Malta, whichrepeated its request forassurance ina further
letter of13 August 1975'. Neither Total'sletter of 31 July nor Malta's
iurther lelter of 13 August is annexed to or mentioned in the Maltese
Memorial. On the other hand, paragraph 79 of the Maltese Memorial
refers to a letter from Malta to Exxondated 23 June 1975'which wasin
terms identicalto thoseaddressedto Total. The reply, if any, from Exxon

isnot annexed tothe Maltese Memorialand accordinglythe suggestion in
paragraph 79 that the absenceof activities north of the equidistance line
"is confirmedtiythe replies receivedfrorn the Libyan concessionaires"is
not supportedby any evidence producedby Malta and iscontradicted by
implicationby the reply fromTotal of 31 July 1975.

'LibyanMemorial.Anncx 54.
'Ibid., Annex55.
'Ibid., Anne56.
'Ibid., Anncx57.
'Ibid.Annex 58.
*MalieseMernorialAnncx 10. D. The "No-Drilling" Understanding

1.23 There is no need to add to the account of the negotiation of the
Special Agreement'whichbegan effectivelywith the subrnissionby Malta
to Libya of a draft proposal for referenceof the dispute to arbitration in

April 1974,whichwas met bya draft by Libya proposingreference to the
International Court of Justice submitted on 3 January 1976 and the
signature of the Special Agreement on 23 May 1976. However, there is
one aspect of this matier which does cal\ for cornmeni. The Maltese
Memorial makes no mention of the no-drilling understanding which was

enrered into by Malta and Libya at the tirne of signing of the Special
Agreement. The existence of this understanding, which alone might be
regarded as negating any contention based on the srarusquo. is clearly
established by the Report of the Secretary-General of the United Nations

tothe SecurityCouncilon the missionof his specialrepresentative. A copy
of the Report dated 13 November 1980 is in Annex 72 of the Libyan
Mernorial. Paragraph 6 of the Report is explicit on this point. It says:

"Malta has confirmedthat it had accepted theimplicitundcrstand-
ing, when the Agreement was signed in 1976. that it would not
begindrilling operations until theCourt had reacheda decisionand

an agreement on delimitation had been concluded in accordance
with article II1 ofthe Agreement2."

1.24 The no-drilling understanding was afso clearly reflected in the
letter from Prime Minister Mintoff to ColonelGhaddafi of 3 December
19763-less than eight rnonthsafter the signature of the Special Agree-
ment and only two months after Maltais ratification of that Agreement

wasnotifiedto Libya-in whichthe Prime Ministerstated, "...Iam ready
to interpret your silence following receipt of this letter as implying
approval that Libya. as a friendly gesture towards Malta, will let Malta
drill in the area up to the median line that isexactly equidistant between

our countries". Libyadid not accept this.suggestion by Prime Minister
Mintoff but by a letter dated 15 December 1976 from Major Jalloud
suggested that no "hasty unilateral decision" be taken by either side4.
This letter hasbeen correotly interpreted as a refusal to agree to further
unilateral activity by Malta, but it wasa reply to a request by Malta to be

allowed to drill, not just to explore as suggested in paragraph 89 of the
Maltese Memorial.

1.25 The fact isthat until the timeof the Texaco-Saipem incidentof IO
August L980, Malta had engaged in no drilling activities in areas of
continental shelf lying betweenthe Maltese proposed lineof delimitation

'See Libyon Memorialpara.4.41 and paras4.58-4.67. '
The "Agreement"referrcdtoistheSpecialAgreementin the presentcase.
"ce LibyanMemorial, para4.70and Annexes61 and62.
'(bid..para4.71and Annex 63. 22 CONTINENTAL SHELF t201

of July 1972and the Libyan proposedline of 1973'. The four dry wells
drilled in the concessionareas originallygranted by Malta in 1971had al1
beento the north of the Libyan proposedline2. 197811979, there were
signsof change in the attitude of Malta. There were apparently shifts in
the holdingsofsharesinthe MedinaBankBlocks10,1 1 and 14granted by

Malta to JOC Oil and in the holdingsin the Medina BankBlocks2, 3,4
and 9,whichsuggesteda changeofinterest inthe area. Libyawasstrongly
opposed to any drilling in the disputarea but became fearful that, in
spite of the no-drillingunderstanding and the agreement made by Malta
with its concessionairesto suspend oil activities, Malta was about to

change its policy.There were grounds for believingthat at some time in
1980 Maita had giventhe "green light for Medina Bank drilling3and it
wasreported that a first test might be drilled in oneof the Texacoblocks
using the Saipem Due drill ship.

1.26 This information accords entirely with the story as told in
paragraphs 95 to 100of the Maltese Memorial4. It is there said that in
October 1979 Malta raisedthe possibilityof establishinga marginextend-

ing five miles wide oneach side ofthe equidistance line within which
neither country would conduct exploration activities until the boundary
was finally established. This was followedon21 November 1979 by a
Maltese proposal to extend the margin on each side of the equidistance
line fromfiveto fifteenmiles in width. Accordingto paragrap96 of the

Memorial,thiswasa proposal"regarding the identificationofthe disputed
arean. Both proposaiswere in any event wholly unacceptable to Libya.
However, Malta emphasised that it could not postpone any longer the
exploitationof "that part of the continental shelf appertaining to.
According toparagraph 97,on 26-29 November 1979Malta indicated
that itcouldnot postponedrillinganylongerand, whenthe representatives

of-Malta reported that Malta had decided to go ahead with drilling
operations, Libya repliedthat this wouldendanger relations betweenthe
twocountries5. Accordingto paragraph 100,whenthe Prime Ministerof
Malta visitedTripolion23 April 1980,he again notifiedLibyaof Malta's
intention to commence drillingup to fifteen milesfrom the equidistance

line and the Prime Minister of Libya replied that Libya wouldprotest
against and resist sucan action.

1.27 It was witha viewto forestallingany such rash action onthepart
of Malta that Libya sent its forma1protest of 10 May 1980" In this
@ @ Seerespxtivtlythelina show onMa8and9 hcing page58of theUbyanMemarial.
'Sec LibyanMcmorial,para.4.29andMap7 facingpage56.Asnotcdinpara, bove.
@ the concessionsgranbyMaltain 197weisnotmentiand inthe Maltese Memaria,.
'PetroconsultantSs.A., ForeignScoutingService.Malta. J1.yA copyofthis
pageis attachcdin DocumenrAnnex2.
'Sec alsLibyanMemorial,paras.4.75 to 4.79.
'Maliese Memorial,paras.97 and99.
'iibyanMemorial,Anncx66.[Zi] COUNTER-MEMORIAO LF LIBYA 23

connection,specialattention shouldbegivento the fourspecificpoints set
out in the Libyan Note, the second of which declared Libya's "non-

recognitionof anyactivities,contracts and assignments, previousor forth-
coming, which wouldaffect its [Libya's] sovereignty".Attention is also
respectfullycalled to the fourth point by which Libya "insistently invites
the Malta Governrnent to avoidany measuresand eliminateanyact which
woiildafïect the friendlrelations betweenthe two countries".In spiteof
this note, the drilling by the Saipem was begun within the area of the
Texawconcessionwiththeconsequencesthat are knowntothe Court.The

no-drillingunderstanding had been breachedby Malta. For thefirst time
drillingactivitywascommencedin areas lyingbetweenthe linesproposed
by the Parties in1972and 1973. In the light of al1the history and the
circumstances, it is meaninglessto try to brush aside this Note as being
Libya's firstdiplomatic protest against the Maltese concessions as is
attempted jnparagraph 101 ofthe Maltese Memorial. Equallyfutileisthe

attempt by Malta inparagraph 103of its Memorialtoclassifythe Maltese
letters t'othe oilcompanies o17 and 23 June 1975'as being ofthe sarne
kind as Libya'sprotest to Malta of 10May 1980.Of course, they have
their significance but their classificationis thee as that of Libya's
tetterstothe Malteseconcessionaire sated 8 June 197S1. Happily as far
as Libyaisaware,sincethe Texaco-Saipem incidentinAugust 1980 there
havebeen nofurther attempts to drill in the disputedarea, and no further

attempt wasmade by Malta artificially to limitthis area to a buffet zone
fifteen miles wideon each side of Malta's equidistance line.

'Secpara.1.22,abovc. CHAPTER2

THE PHYSICALFACfORSOFCEOGRAPHY,
GEOMORPHOLOCY ANDGEOLOGY

Introduction

2.01 In its Memorial, Libyaapproached the task of presentingits case
to the Court in the lightof the Court's clear indicationthat "each conti-
nental shelf casein dispute should beconsideredand judged on its own
merits, having regardto its peculiar circurnstances'". In its 1982 Judg-
ment, the Court indicated that this processinvolvedthe "evaluation and
balancingup of al1relevant circumstances2". Hence, it was Libya'sview

that the essential taskof the Parties in the present case wasto exposethe
relevant facts and circurnstancesto the Court and to suggesttheir weight
and applicationin order to yieldan equitable result. Libyastructured its
Memorial towardthat end.

2.02 The approach taken in the Maltese Memorialwas almostdiame-
trically opposedto this - and, in Libya'sview,opposedto the jurispru-
dence of the Court. The case put forwardby Malta in its Mernorialwas

built around an a priori assumption that in the present case only an
equidistanceor rnedian line can providethe right solution.In support of
this contention, Malta argued that a median line constitutes the estab-
lishedstarus quo- a conclusion without the slightest coiourf validityas
has just been shown in the previousChaptera. Malta has also sought ta
invokeState practice in support of its median line contention. Although

the subjectsofState practiceandequidistanceare dealt withinChapters 5
and 7 below, Malta's reliance upon equidistance and its perception of
State practice explain in large part its selection and treatment of the
relevant circumstances of the present case.

2.03 At the root of Malta's approach lies its failure to deal with the
particularity of each case of continental shelf delimitation, a point so
recently emphasised by this Court in the Judgment in the TunisialLibya
case in the followingterms:

"It isclear that what is reasonableand equitable in any givencase
rnust depend on its particular circumstances. There can be no

doubt that it isvirtually impossibleto achievean equitablesolution
in anydelimitationwithout taking into accountthe particular rele-
vant circumstances of the area'."

'~ondncntnÏ~helj (Tunisia/LibynnArab Jarnahiri,Judgmcnr,1.C.J. Report1982,
p. 92,para. 132.
'Secparas.1.02-1.07.abovc.
'ContinentaShev (Tunisia/iibyan Arob Jamahiriya). JudgmI.C.J.Reporrs 1982,
p. 60para.72. 2.04 Malta'sstaunch adherenceto equidistance has requiredthe Mal-
tese Memorial to avoid, almost completely,dealing with the relevant
circurnstance of the presentcase.For, as the Memorial ofLibya demon-
strated', the equidistancemethodbyitsverynature failsto take accountof
the physical faclorsZand other relevant circurnstances, andeven ignores
geographicfactors suchas coastal lengths.Thus, it followsthat Malta has

hadtoignorethesefactorsand relevant circumstancesand to obscurethe
obvious inequity of the result that a median line would lead to if the
geographicaland other physicalfactors relevant to the present case were
considered.

2.05 In the present case,the physical factorsof geography, geomor-
phologyand geologyare relevant circurnstancesof particular importance
and hence deserve to be dealt with first. This stems from the fact that
each Party must as a first step establish the basis of its claim for legal
entitlement to areas ofcontinental shelf beforeturning to the operation of

delimitation. The physical factors that constitute the respectivenatural
prolongationsof the Parties - and hencetheir legalentitlement - logi-
caHycornefirst in the discussionof relevant circumstances.These factors
are inextricablyrelated: the land territory a State projects seaward from
itscoastsbywayofthe sea-bedand subsoilthroughout the natural profon-
gation of the land territory of the State. The sea-bedand subsoilmust be

consideredtogether, aswell,sincethey are the physical elementsof which
the continental shelf is composeda;and the subsoil (which essentially
concerns geology) may in a given case be relevant in explaining the
meaningand importanceof sea-bedfeatures. Ina constrictedsetting such
as that of the Pelagian Sea, the natural prolongations of the various
claimant States fronting on such an area of continental shelf can be

expectedto overlapeach other unlessthere are basic discontinuitiesinthe
sea-bedand subsoilwhicharrest the natural prolongation-and hencethe
legal entitlement-of a particular State or States. Such is the casein the
present delimitation between Libyaand Malta.

A. TheGeographicaS l ettingof the Dispute
1. Malta's Neglect of GeographicaF l actors

2.06 It might at first have appeared on the basis of the Libyan and
Maltese Mernorials that at least as to the importance of geography the
Parties were of the same rnind: that each considered the geographical
factors to be of major importance in delimiting the continental shelf

between thern. The Maltese Memorial setaside an entire chapter and 24
paragraphs (Chapter V, paragraphs 110 to 134) ostensibly devotedto:
LibyanMernorial.para.7.11.Sec also Chapier7, below.
'The ttrm'physicalfactors"isusedthroughoutthis pletgrefertogeograph(suchas
coastaflengthcoastaldirection. tc.), gcornorphoyndgeology.
Sct thedefinitionsof thecontinentsahlclfinArticle1ofthe1958ConvandinArticle
76,para. 1af the 1982 Convcntion.26 CONTINEKTAL SHELF i241

"The Importance of the Geographical Factsl". Malta included in its
Memorial statements such as this: "...the equitable result must reflectthe
geographical facts in the particular caseP." In fact, however, Malta
devoted a mere two pages to the actual geographical factors, whereas

Libya examined these facts in considerable detail and found them to be
relevant circumstancesof capital importances.

2.07 It is reveaiing,therefore, to take the variousassertions regarding
geography to befoundscattered through the Maltese Memorialand to see
what factsare put forwardin their support. For whileLibya agrees with

the statements of Malta in pawgraph 110that: "The delimitation of the
continentalshelfmust start from the geographicalfacts in each particular
case'",and in paragraph 112that "the validityof any methodofdelimita-
tion is always related to the particular geographical situation",it is sur-
prising to findthat the "geographical facts"are discussedin a mere two

pagesof the Maltese Memorial (paragraphs 113to 120). And verylittle
even of these two pages deals with geographicalfacts at all.

2.08 Thus in paragraph 113 it issaid that:

-Malta is an island State;

-the entire group of islands hasa total length of about 28 miles;

.-the "principal islandin its southern aspects is in every sense
opposite the Coastof Libya";

-the "islandof Malta and the Libyan coastline have a certain

tilt, at an attitude northwest to southeast";

-the distance between Malta and any pint on the Libyancoasr-
line is not less than IR0 niiutical miles and in some sectors
greater;

--there are no intervening islands;and

-"the seabed is a continuum in geologicalterms".

Thisisvirtuallyal1inthe way of "geographical facts"that are put forward

by Malta to describe the "geographical frameworkof the delimitation to
be effected5".

'Libyadevoted50paragraphsinChapttr2of itsMerriorand 24 paragraphsinsectiBn
of Chaptcr9 to the samc subject.
aMaliescMernorial,p. 107.
'As wilbcsccn in SectiDnbclow.Maltaistreatmcntof tsca-bcaddsubsoi1wasevcn
morecursory.
'Citing theAnglo-FrenArbitraiion.Decisionof 30Junc1977 (Cm7438),p.54, para.
'MaliescMernorialpara.114. 1251 COUMER-MEMORIALOF LIBYA 27

2.09 From these bare-bone facts certain conclusionsare then said to
flow conclusionsthat reappear onand offthroughout the Maltese Memo-
rial presumably intendedto gain veracityand weightthrough the veryact
of repetition. Amongthese conclusionsare thesefound in paragraph 114:

-there are no incidental or unusual geographical features (for
example, no peninsulas complicate the picture);

-there are "simply certain large-scale geographicaldata: the
island State ofMalta standing at a considerabledistance from
the coastline of Libya"; and

-two coastal States thus face one another in a "very simpleset-

ting, in the absence of narrow seas or other special
circumstances".

2.10 The matter of size appears briefly in paragraph 29 where the
evident admissionis made thai Malta is srnall in size and very small in
population - an abstract staternent not related in any wato the much
larger size of Libya in both respects.This difîerence in si-e and in
particularinthe lengthsof relevant coastlin-s is regarded by Libya to
bea key relevant circumstance in the present case'.

2.11 Another geographical aspectof Malta's Memorial that perhaps

as much asanythingelseillustratesthe short shriftgivento the geographi-
cal facts (as wellasto the geomorphology ofthe sea-bed) relates to the
maps used by Malta in Volume III ofits Memorial. They are based on
BritishAdmiralty charts,asisMap1followingthis page,a reduction ofan
up-to-date BritishAdmiralty chart. But three ofthese Maltese maps are
based on charts longout ofdate. For example,Map No. 1of Volume IIIof

the Maltese Memorial reflectsdata only up to 1969.There have been26
updatingssincethat time whichare reflectedinMap 1. Map No. 1of the
Maltese Memorialis ofspecialinterest sincein the areas ofshelfnorth of
Malta - colouredin blueto representdepthsshallowerthan 100metres
- a channel-likegap appears. Thisgap simplydoes not appear on upto-
date bathymetric charts'. No such break in the 100-metre isobath is

shownon Map 1 oron the IBCM, the most current bathymetric chart of
the Mediterraneana.

'Se, forexample.LibyanMernorial,para.9.21.Secalso.Chaptcr2, SectionB.4,bclow.
protohistoritcimcs. SecLibMemoriacpl,ras3.3ff.,andparas.2.78to 2.80, below.
'The refcrcncctothc"IBCM"is toSheet8 of the InternationaBlatChartof the
@ McditcrraneanA. rcducedcopyof thisCwastplad inthe&et sectionof VoIIof
thc LibyanMernorialSec para.3.0andPartI af theTechnicalAnncxta the tibyan
Memorial for dctailsrcgardingthis Chart.The Iralianbathmapissucdby thc
InstitutoIdrografdella Marina-Gcnova.cccmbcr1972 (reprint ofFebru1980):
MareMeditcrrancoC. snalediSicilia,No. 1503alsoshows nosuchbreakinthe100-mctrc
isoùath.28 CONTINENTAL SHELF 1261

2.12 A few more general staternents which give the impressionthat
Malta is emphasising the importance of geography can be found in
the Maltese Memorial. For example, in paragraph 144, paragraph 73 of
the Tunisia/Libyacaseiscited forthe propositionthat ". ..the coastofthe

territory of the State is the decisivefactor for title to submarine areas
adjacent to it'". But the paucity of geographical factsto be found in the
Maltese Mernorialscarcelysupportsthese general statements. The con-
clusionsthat appear and reappear throughout Malta's pteading suggest,

ralher, that in the viewof Malta the geographical factsinthe presentcase ..
haveno particular relevanceto the rnethodofdelimitation to be adopted.
lnstead, it is saidby Malta that the geographicalsetting is "simple" (cg.,
paragraphs 114, 131 );that the delimitation is to occur in an "entirely
normal setting" (e.g.,paragraph 131); that it is merely a matter of two

coastal States facing each other "at a considerable distance" (e.g., para-
graph 248); and that the keyfactorsare location,distance,sirnplicityand
coastal relationships (e.g.,paragraph 264). To quote in part from para-
graph 263:

*There is in legal terrns a complete absenceof abnormal geo-
graphical features in the present case. .. . Nor is there anything
unusual about the Libyan coastline, which is obviouslyfree from

abnormalities. Moreover,the relatiomhip of the Maltese and Lib-
yan coastlinesis quite unremarkable".

These assertions will be taken up in turn below2
2. TheTwinThemes:"Simple"and"Normal"

2.1 3 The twinthemesthatthe geographicalsettingof the present case
is"simple"and "normal" runal1through the Memorialof Malta. Simplic-
ity is equated to the alleged absence of unusual features: "Two coastal

ContinentalShelJ (Tutiisia/LibyanArab Jamahiriyaj, Judgment.I.C.J. Reportsp.82,
61,para. 73. SecalsoMalteseMernorial.para. 127andthesubparagraphtitleimmtdiatc1.y
preccdingpara. 213.
'Malta'spleadingcontainsother statcmentswhich,asidcfrom thcirobscurity.have no legal
support and, not surprisingly,nonc is cited. For examplc. in paragraph 265 appears the
statemcnt that "in the contcxt ofimitation the political geography is a part of the
'geographical configurati'hichcount forlegalpurposes". Sec alsoMaltMernorial,
para.266:
"It must followthat the existenceof a homeland,cvenconsistingexclusavelyof
singleislandor a compact islandgroup, drawsinits train certain Itgalconsequenccs.
After all, 'thelanddominatesthe sea'inthe legal philosophyofthe continental shelf.
The coastsofthe islandStatc, likcofanyothcr State, support basepointswhich
lcgaltcrmsperfcctlynormalgtography and ofthe primarypoliticalandgeographical in
clcmentsthcrcprescriMalta. as an islandState set at a considerabledistancefrom
the North African coast, has its appurtenant shelf and Libya hastharcaslf
corrcspondingtoits owncoastlinc.The politicalgcographyisclear.No claim ismade
todcprivcLibyaofhcrappurtenant rights:and the factthat Maltaisan islandcannot
justify the undoing oftht frontier of cquidistancc."
Sce also MalrcseMernorial,para147,for an equally unfathomablcstatemcnt.1271 COUNTER-MEMORIAL OF LlBYA 29

States thus face one another in a very simplesetting, in the absence of
narrow seas or other special circumstances'." The "rnyth of norrnality"
reposeson the absenceof interveningislandsor prornontories*. But nor-
mality doesnot existingeographicalsettings:each casehas itsownunique

characteristics. Certainly, the settingof the present caseisfar from what
rnight be called "normal" as an examinationof any bathymetric chart of
the Central Mediterranean reveals, particularly when compared with
bathymetric charts of other areas of the worldcontained in the Annex of
delimitation agreements. The rnere absence of intervening islandsor

prornontoriesor peninsulas does not convert the geographical setting to
one of normality.
2.14 Each case is necessarily different,although some cases,in some

aspects, maybear a resemblance to other cases and certain conclusions
may appropriately be drawn from such facts. The word "normal" hasno
place in any geographical-geomorphologicalsettings. In each case of
delimitation it devolveson the Parties to inform the Court accurately of
the particular physicalfactors that characterise the case and not to gloss

overthem orto ignore them. Tocharacterise the settingofthe presentcase
as either "simple"or "normal", the sea-bed and subsoilwouldhave to be
overlooked;the coasts of the Parties- their lengths,directionsand rela-
tionships - ignored; the difficultiesof comparing a very small island
group with a very large continental landmass with an extensive Coast

circumvented;and the presenceof neighbouringthird States assumednot
to exist.Such a characterisation isachievedby Malta onlybyignoringthe
facts.

3. b'Location* a'nd"Distance"as Discussed
byMalta

2.15 The other related geographicalelernentsernphasisedin the Mal-
tese Memorial are "distance" and "location"'. Malta makesmuch ofthe
point'thatthe Maltese Islandslieat a distanceof notlessthan 180nautical
hiles fromthe nearest Libyanlandfall and oftenat greater distances.The
figures given in the Libyan Memorial, paragraph 2.25, were that the

MalteseIslands liesome44 nautical milessouth ofSicilyand 158nautical
milesnortheast ofTunisia;that the nearest landfallon the Greekmainland
is 340 nautical milesdistant; and it might be added - particularly given
the "tiltw of the Maltese Islands and the direction in which Malta's
asserted baseline between FilRaand Ras il-Wardijaonthe southwesttip of

Maltese Memorio/.para. 114.
See paras.7.15-7.16below whcaelegal discussionof the "mofnormality"is found.
'Inthisrespectit hasbccnnotedtha"...nature[est] souvent rebelle aux simplifications
desjuristes." CitcdDUPUY ,.J.,L'OcéaParragéP, aris,Pcdonc.1979.pp.109-110.A
copyof thcscpagesis attachai DocurnentaryAnncx 3.
'Thedistortingcffcc~of"distan-egivcnthefactofverydiff'ecoastallengths-whcn
theequidistanccmethodiused sdiscussedatparas.7.24-7.27.below.Asta"locaii,ec
subscction4 belowin whichthe prescnofthirdStatesisdiscussad.30 CONTINENTAL SHELF [281

Gozo faces - that the distances betweenMalta and the Italian Pelagian
Islands arethe following:64 nautical milesto Linosa,95 nautical milesto

Lampione, 82 nautical miles to Lampedusa, and 11 1 nautical miles to
Pantelleria.

2.16 The presentdelimitation concernsthat part of the Central Medi-
terranean that isboundedon the east bythe Sicily-MaltaEscarpment, the
Medina Escarpment and the Fault Zonethat runs south to approximately
Ras Zarrouq on the Libyancoast, an area commonlyknownas the Pela-
gian Sea1. It seemçevident that this Sea is in eflect one of the "semi-

enclosed"seasdescribedby Malta as makingup the Mediterranean Basin,
enclosedasit isbetweenSicily,Tunisiaand Libya. It formsthe connecting
link betweenthe Tyrrhenian Sea and the WesternMediterranean, on the
one hand, and the Ionian Sea and the Eastern Mediterranean, on the
other. In contrast, the Ionian Sea to the east isa largeanseof open sea
across which Italy, and then Greece further east, face the Libyan coast.

Malta's location in the Pelagian Sea is unique.The coasts of the Maltese
Islands are clearly associated withthe southwest-facing coastof Sicily,
with the Italian Islandofthe PelagianSea and withparts ofthe Tunisian
and Libyan coasts, but only as far east as Ras Zarrouq.

2.17 The presentdelimitationis to occur,therefore,in a confinedarea.
Between Cape Bon and the nearest point on Sicily across the Strait of

Sicily properisamere78nautical miles.From thecenter ofthe southwest-
facing coastof Sicilyto Ras KaboudiainTunisiais 170nautical milesand
to Ras Ajdir is 264 nautical miles.From the southeast tip of Sicilyto Ras
Zarrouq is 255 nautical miles. In this ara between Sicily, Tunisiaand
Libya, a number of islands are located:the Maltese Islands, four Italian
Pelagian Islands, the Kerkennah Islands and the Island of Djerba. The
narrowness of this area is brought out by the fact that the part of the

Pelagian Sea where Malta içlocated is often referred to as the Strait of
Sicilyor the SicilyChannele. In such a confinedarea, the claim of each
coastal State must necessarily take into account those of its
neighbours-which leads to the aext part of this Chapter.

4. TbeLocation of the Parties-the Presence
of ThirdStates

2.18 It is quite remarkable to read the concludingstatements in the
Maltese Mernorialbearing on geographicalfactors, and in particular on

the locationof Malta and Libya, without findingany mentionbeingmade
of third States and the potential delimitations between them and both

'SCCMup 3 facingp.44.
The subjectafdistanccisalsodealtbelowinChaptcr 4,paras.4.46-4.52in thecontcxt
of thso-calle'distance principlc"invokcdby Malta. COUNTER-MEMORIAO LF LIBYA 3 f

Libyaand Malta. For example,paragraph 234, purportingto be a resumé
of equitablecircumstancesand "relevantcircumstancesof particular rele-
vance", mentions the following:

*(b) The general configuration of the coasts of the Parties
involves a coastal relationshipof oppositecoastsset at a considera-
ble distance from each other, and the absence of any special or
unusual features. .

(c)..the presenceof opposite coasts andthe absenceof displaced

islands orother unusual features."

And in the concludingparagraph 272, appear the followingstatements:

"(c) The geography of the Malta-Libya relationship is simple
and there is no legal basis for'abatement'of the normal effect of
coastal features.

(d) Thedominant geographical circumstances consiso tf the posi-
tionof Malta at a considerabledistancefromthe LibyanCoast,and
the absenceof any intervening islands."

2.19 Do Italy and Greece simplynot exist? Whyare the Italian Pela-
gian Islandsignoredinthe Maltese Memorial (particularly inviewofihe

"tiltn of the Maltese Islandsand the directionof Malta'sbaselinebetween
Filflaand Gozo)'? What standsout in reading these paragraphs of the
Maltese Memorial is the conspicuousabsenceof any mention of the real
locationofMalta - surroundedbycontinentalStates and byother islands
with whichpoteritialdelimitationsmaylie ahead2. The Anrrexdevotedto
delimitation agreements will bring out forcefully how States in settings

whereother delimitationsare involved havetaken this factor into account.

2.20 Malta does make one reference to a neighbouring State - in
paragraph 119ofits Memorialwhere,in a flightof fantasy, it conjureup
a hypothetical situation of Malta vanishing fromthe Pelagian Sea in an
attempt to showthe equitable result to whichan equidistance line would
allegedlyleadg. However recent Malta's existence maybe in geological

terms, it isnotpart of Libya'scase tosuggestthat Malta, likethe Islandof
Julia', might suddenlydisappear. Malta is present in the Mediterranean
forpurposesofthiscasejust asmuch as Libya,Sicily,the Italian Pelagian
Islands, the Italian mainland, mainland Greece and Crete.

'SK para.2.33, bclow.
'The LibyanMemorial broughtthis aspect on considerabldetailSec.forcxample,
paras.6.74-6.76and9.44-9.60.
Malta'sothcrhypothcticalase- thislimewithMaltasittingoutinthe AtlantiOcan
cxamplcsis yct anothcr illustrof Malta'failurto recognisctheuniqucnasofcachal
panicularsituation in delimithecontinentashclf.
'Sec para.2.07oftheLibyan Memorial.32 CONTINENTAL SHELF PO1

2.21 There can scarcelybe any doubt that the jurisprudence has con-
sistently recognisedthe relevanceof the factor of third state delimita-
tions'. Giventhat in the presentcase the delimitation is to be made in a

confined sea, with other States bordering the area, it is really quite
rernarkablelhat Malta ignorestheir presence,and seerninglyseesitself-
hypothelicallyagain - standing across from Libya, intotal isolationas if
in some vast ocean. In the samevein, the Maltese Memorial does not
hesitate toadvance a "principle of non-encroachment", alleging that a
Libyan claim north of an equidistance line would constitute a "massive

breach"of this principle. YetMalta seeminglyfailsto see how"massive"
wouldbe the encroachment of Malta's ownclaim which,by ignoring the
presenceof third States, wouldseek to acquire continental shelf rights in
areas which fall for delimitation between other neighbouringStates.

2.22 There are two possible(and not incompatible) explanations for
Malta'sextraordinary silenceonthe matter. The firstisthat, at leastinthe
dispositif of the 1969Judgment, the relevance of actual or prospective
delimitations withthird States was stressedinthe contextof proportional-
ity. Hence,if Malta seeksto avoidany reference to proportionality,there

is a certain logicin omitting al1 reference to delimitations with third
States. However,even this explanation is incomplete,for in the Court's
1982Judgment and also the Decisionof the Court of Arbitration in 1977
the concernover this factor was by no means limited to the effect these
delimitationsmight haveonthe proportionsofshelfarea attaching toeach
Party. It is evident that the Courts have a far wider concer- namely,

that their judgments shouldtake accountof existingdelimitationsand not
prejudice futureones.
2.23 Thesecond,and morelikely,explanationforthiscuriousomission

is thatthe Maltese equidistance clairn is simply incompatible withboth
existingand prospectivedelimitationswith third States, or evenbetween
third States.

2.24 There are, of course, two existing delimitations to be taken into
account: Tunisia/Italy 197 1, and ItalyIGreece 1977; not to mention the
Court's 1982Judgment as between Tunisia and Libya2.As to these, the
Malteseequidistance claimwouldseemto involvea rejectionofpart ofthe
Tunisia/ltaly 1971 boundary. It might, ofcourse,besaid that this isof no
concern to Libya, orto the Court in the present case. The matter isnoso

simpleas that, for the wholeof Malta's case against Libyadepends upon
the thesisthat Malta isgenerally entitledto equidistance.Yet,vis-à-visthe
Italian IslandsofLinosa,Lampioneand Lampedusa, Malta appears to be
abandoning equidistance and seeking to enclave those islands instead.

Sccthe refercnccsat para.6.74 of the LibyanMemorSm..also, the AngleFrench
potcntialU.K./lrelandboundary.9(Cmnd. 7438). paras.24-28.whichrcfertothe
'Sec LibyanMernorial,paras.6.74-6.76 andparas.9.44-9.60. Pl] COUNTER-MEMORIAL OF LIBYA 33

Thus, the Tunisia/Italy 1971delimitation isrelevant in thiscase inthat it
raisesan inconsistencyin Malta's positionand thereforebrings into ques-
tion the wholevalidity of thealtese thesis as against Libya.

2.25 As to the delimitation betweenTunisiaand Libya, in application
of the 1982 Judgment of the Court, it does not appear appropriate to
commenton this situation exceptto note its relevanceto the present case.

2.26 More serious still, in Libya'sview,are the consequencesof the
Malteseclaim in relationto the Italy/Greece 1977delimitation.There are
two separate aspects to this.The firstis that, as Map 14 of the Libyan
Memorial demonstrates, the Maltese claim virtually preempts, and pre-
cludes, any future Libya/ltaly delimitation. There is, at the moment, a
relativelysmall "gap* betweenthe extreme eastern point of the Maltese

claim (Point 12) and the southerly pointof the Italy/Greece delimitation:
but this southerly pointisovisional,sothereis nocertainty that eventhis
small gap will remain. But even assuming it does, the area Ieft for any
future Italian/Libyan delimitation is incredibly small:latitudinally it is
onlysome 17nautical miles.Yetto the eastof Malta there isItalian coast
between the meridians of approximately 15" E and 18'45' E, with a
latitudinal length of some 190 nautical miles directly across from the
Libyancoast. The Malteseclairn tothis vast area to the east, based upon

an east-facingcoastal front of only 5.4 kilometres,virtually excludesany
relationship between these two long Italian and Libyan coasts.
2.27 Nor does the anomaly end there, for the implication of the
Italy/Greece 1977 delimitation line is that to the east of that line the
Greek shelfwill abut on a Libyan shelf. If the line is projected south it

meets the Libyancoastbetweenapproximately the18"45'Eand the 19" E
meridians. This will leave al1 the Libyan coastto the east as a coast
@ oppositeand relevantto Greece.Yet,as FigureAof the MalteseMemorial
shows',Malta assumesthat this entire coast as far east as approximately
23' East longitudeisoppositeto Malta. The Malteseclaimmay besaid to
prejudice not onlythe future ltaly/Libya delimitation, but also a future
Greece/Libya delimitation.

2.28 This result is plainly inequitable, andwhollyunacceptable. It is
the essenceof encroachment. It issmallwonderthat the Maltese Memo-
rial has not ventured to discussthe factor of delimitations with third
States, for thisfactor aloneexposesthe excessiveand inequitablenature of
the Maltese claim.

'SecMalteseMernorial,p. 118,34 CONTINENTALSHELF l32l

B. The Coasts of the Parties-the Factors of Length

andRelationship
1. The Impartance of Coastsas Reflected in the
Jurisprudence

2.29 TheCourt has made clear the major importanceof the respective
coasts ofthe States in any delimitation of the continental shelf. For the
coasts of the Parties lay the basis for entitlement to areas of shelf. As
expressedby the Court in paragraph 73 of its 1982Judgment-

"...the coastofthe territory of the State isthe decisivefactor for
title to submarineareas adjacent to it".

In the nextparagraph ofthe sameJudgment, theCourtfurther elaborated
on the point, as follows:

"The coast of each of the Parties, therefore, constitutes the
starting linefrom whichone hasto setout inorder toascertain how
far the submarine areas appertaining to each of them extend in a
seaward direction, as well as in relation to neighbouring States
situated either in an adjacent orpposite position1."

In the samevein,theCourt has emphasisedthe need toconsiderthe length
of the coastsof the Parties.s the Court said in paragraph 91of its 1969
Judgment-

"...equitydoes not require that a State without access tothe sea
should beallotted anarea ofcontinental shelf,any morethan there
could be a question of rendering the situation of a State with an
extensive coastline similar to that of a State with a restricted
coastline2",

In paragraph 131of its 1982Judgment, the Court took clear note of thr
respectivelengths of the coasts of the two parties to that case, and the
parties themselvestookpainsto bring tothe Court'sattention the detailed
facts regarding their respective coastswhich they felt relevant.

2. Malta's Neglect of Coastal Detaib

2.30 However, the Maltese Memorial pays only Iip service tothe
importanceof thecoastsof the Parties. Forexample,inparagraph 127it is
said that the "relevanceofcoasts must beweighedwith necessarycare and
finesse";but then the followingsentences appear:

"Thus the geographical configuration relevantto the determination
of an equitable method of delimitation consists not merely of
'coasts',of whatever length, but to a considerable extent of the

ConrituntuShey (Tunisia/fibyaArabJarnohiriyu).JudgrnentI,.C.J. Reports1982.
p. 61,para.74.
Np.52.para.96andeAnglwFrenchArbitraiion.Decisio30flune 1977(Cmnd.7438).o
p. 60, paIDO.[331 COUNTER-MEMORIA LF L~BYA 35

relutionshipsof coasts.The locarionandrelationojcoasilines are
the overriding factors. It is the position of Malra ar adisturice
from the Libyan coast. and the absence of inrerveningislands,
which are as important as any other aspect ofthe geography."

Apparently, then, the "care and finesse"amounts to the discarding of a
detailed look atthe length and direction of coasts and concentrating on
"relationships"of coasts,with Malta'sposition and daimed distance from
the ~ibyan'coastthe keyfactors in these "relationships".Such assertions,
of course, haveno foundationineither jurisprudence or doctrine. But it is

necessary to probe further to see exactlywhat Malta's position is as to
coasts and cmstal relationships.

2.31 To take anotherexample,at paragraph 144,Malla citesthe Court
in the TunisialLibyacase'for the propositionthat "the coastof the terri-
tory of theState isthedecisivefactor for title to submarineareas adjacent
to it". But then Malta appears to suggest (in paragraph 147) that an
island State somehow has rather special rights, almost as if to divert
attention from the relevantcoasts of the Parties and their relationships.

This paragraph js worth quoting in its entirety ta illustrate howthe Mal-
tese Mernorial hasatternpted to camouflage the geographical facts:
"The positionofthe islandState isone ofparticular sensitivityin

view ofthe fact that it has a homelandor'mainland'whichconsists
of an islandor group ofislands, togetherwith the appurtenance of
the continentalshelfinaccordancewith the principlethat 'theland
dominates the sea.' The legal interaction of land tetritory and
sovereignrights oversubmarineareas ismuch morecritical than it

isformostothercoastafStates. Moreover,the relationshipwiththe
appurtenant shelf areaç has an enhanced significancein cases ljke
that of Malta, that is to Saywhen land-based resourcesare mini-
mal and the shelf is the only possible locationof the resources2."

2.32 But the Maltese Memorial has hardly anythingta say about the
actual coastsof the Parties other than a fewstatements such as that "the
entire group of islands has a total length ofabout 28 miles" (paragraph
1 13).1s thisdistance measured alongthe baselinesor alongthe coast and,
ifthe latter, inwhatmanner" Which coastsofMaita andwhichcoastsof

Libyaare beiieved by Malta to have a relationship with each otherfor
'CovtimirtnsG~ /Tuni~io/LibyanArab Jamohiriya). Judgmrnt, I.C.J. Rcporis 1982,
p. 61. para.73.
'Howcanthisstatcmcntbercconcilcdwiththeperfcctlycorrectstatcrncntsomeparagraphs
laterinthcMalieseMemorial (para.161) that"[ais amatttroflcgal principlcthe modern
law of the sca assirnilata islands andisland-coaststo mainlaninrespectof
continental shelfcntitlcrnentandrights andforal1purpses of delimitation"?
'FromcalculationsmadebyLibya.this figureappearstinstatutsmilcsandto bcthe
distancebctwccnthcnorthwwt tiGozoandthesoutheasttipof MalIidoesnotappcar
coastlines.tal length atal]. a rathertelling fact in tcrmsof ofintercstin1351 COUNTER-MEMORIA OF LIBYA 37

2.35 The matter of Malta'scoastsalsoappears ina differentcontextin
its Memorial: in relation tothe baselines said to have been adopted by
Malta and notified 10 Libya. These baselines appear on Map No. 2,
VolumeIII, of the Maltese Memorial'. It rnust be presumed that these
baselines weredrawn to showthe general direction of various portionsof

the coastsof the Maltese Islands;and Libya is entitled to regard them as
Malta'sofficiaipositionas to the generaldirectionof itscoasts.Map 2 has
been preparedto reproduce the Maltese baselinesand to showtheir rela-
tion to the coasts of theariousStates fronting on the Pelagian Sea. It is
interesting to note that only portionsof the baselines betweenDelimara

Point and Filfla, an overall distance of only 14 kilometres, would be
regarded as facingsouthward toward the coastof Libya.AsMap 2shows,
the muchgreater length ofthe baseline betweenFilflanorthwestto Ras il-
Wardija on Gozo, a distance of 34 kilometres,does not face the Libyan
coast at al].This, of course, results fromthe "tilt" of the Maltese Islands

and from the use of the rock Fiiflaas a basepoint.
3. Malta'sRationalefor Avoiding Coastal

Details-its Basepoints Assertions
2.36 It isusefulat this pointtoexamine howMalta hassoughtto avoid

an examination andcomparisonofcoasts. First, Malta has asserted falla-
ciously that a delimitation reflecting the difference in coastal lengths
between Libyaand Malta "would beinconsistent with legal principle"
because it would involve "a simple apportionment of the continental
shelP". Thesameparagraph thengoeson toSay,referringto paragraph 19

of the Judgment in the North Seo casesa,that-
"..such an apportionment of the area of shelf between the two

States would be in conflict with the basic notion that the shelf
constitutes the natural prolongation of the coastal State's land
territory and thusappertainstothat Stateipso facroand ab initio".

This can only be describedas sheer manipulation of legal rules, in thiç
instance citing the often-quoted languageof the Judgment inthe North
Seo cases with regard to natural prolongationto defeat the consideration
of coastal lengths, a factorwhichthe Court in the same North Sea cases

and in the Tunisia/Libya case singled out as particularly relevant. How
can paragraph 19 of the 1969 Judgment be used in ihis fashion when in
paragraph 91 of the same Judgment the Court .made it clear that there
couldbe noquestionof"cornpletelyrefashioningnature" or of "rendering

The discussionof Malia'sbasclinesin this Counter-Mernoriailn no way constitutesan
admissionby Libyaas tothcircorrcctncssundcrinternationallaworas tothe acccptability
of usingthe rockFilfas abasepoint.The incorrcctnfMsatta'sassertioregarding
notificatiof thesbasclinesto LibandMalta'sfailurc cvcr topublisha mapshowing
'MalieseMemorial,para.130.twith in ChaptcrI aboScc also para. 1,above.
'North SeciConrinenralSheg Judgmenr.f.C.3. Reports 1p.22, para. 19.38 , CONTINENTAL SHELF 1361

the situationofa State withanextensivecoastlinesimilartothat ofa State
with a restricted coastline"?The distortion of legal rules becomesal1the
moreapparent whenthe fact is consideredthat it is the natural prolonga-

tion from the respective coastlinesof the Parties on whichthe entitlement
of the Parties to areas of shelfisbased.
2.37 A second way in which Malta has attempted to obscure any
details règardingthe coasts ofthe Parties is by resort to "basepoints"and

toMalta's related short-abutting-coast argument. The bold and spurious
assertions of Malta in this respect may be surnmarised as follows:
- that "Malta's coastscount as much as the coastsof other oppo-
site States interms ofthe generationof continentalshelfentitle-

ment" (paragraph 242);
- that basepoints "generate"title to continental shelfby "the nat-
ural reach of controlling basepoints"(paragraphs 120, 118) ;

- that "a restricted coastgl sector mayproduce a number of very
influential controlling pointsby reason of its Iocationand char-
acter: and such is the case of Malta" (paragraph 128(a));

- that "apart from anyunusualgeographical elements, anycoastal
feature counts equally and must be giventhe appropriate con-
trolling effect" (paragraph 122);

- that "any Coastwhichabuts upon the shelfarea to be delimited
has considerable significance,even though the actual frontage
involvedis moreor lessmodestin extent" (paragraph 121); and

- that "a centrally placed, regularlyshaped, island or peninsula
willsupport a smallernumber ofbasepoints whichwill, nonethe-
less,generate an appropriately amplearea ofappurtenant conti-
nental shelf" (paragraph 120).

2.38 These assertions appear first in paragraphs 117 and 118 of the
Maltese Memorial, where the"considerablebenefits"bestowedbynature
onLibyaare discussedand it issuggestedthat "geography hasalsosmiled
upon Malta" owingto the "natural reach ofcontrolling basepoints even on
a modest coastal frontage".As a resultofsuchbasepoints,"Malta receives
a certain area ofshelf,the size and distributionof which reflect Malta's

existenceand location".Perhapsthe heart of Malta'scontentionsas to the
importanceof basepoints iscontained in paragraph 120,whichis quoted
belowin full:

"In the context of delimitation geographical facts have signifi-
cance primarily in relation to base-pointsand construction lines.
Each type of feature and circumstance has its own benefitsand
drawbacks. An extensive coastline generates a longitudinally
extensivearea of shelf rights and yet, at thesame time, given the (371 COUNTER-MEMORIAO LF LlBYA 39

way in which alignments are constructed, many potential base-
points on a long, more or less regular, coastline are in a sense
wastedor redundant. Inthe sameway,a centrally placed, regularly
shaped,islandor peninsulawillsupport a smaller number of base-
points which will,nonetheless, generate an appropriately ample
area of appurtenant continental shelf.There isnoabsalutecorrela-

tion between the extent of a shelf area and the number of base-
points which generate it."

This proposition is then the subject of paragraphs 121 through 126 in
, whichcertain examplesof State practice and the Angko-FrenchArbitra-
tion are cited in alleged support'.

2.39 Constant repetition of unsupported statements such as these
whichrun directlycounterto the Court's jurisprudencedoesnot lend them
forceorvalidity."Basepoints"do not "generate" rightsor title tocontinen-
tal shelf; theyare data for the applicationof a method of delimitation -

usuallythe equidistancemethod basedon mere proximity toa particular
point. Legalentitlement arisesnot from "basepoints"but from the natu-
ral prolongationofthe landterritory ofthe State and itscoastalextent into
and underthe sea.Asfor the role playedbyshortabutting coasts, theyare
just that: short lengthsofcoastlineentitledto nomorethan anyother short
lengths ofcoastf.

2.40 The statements found in paragraphs 265 and 266 of the Maltese

Memorial are meaningless - for example, the statement found in para-
graph 265 of the Maltese Memorial that "in the context of delimitations
the 'political geography' is a part of the 'geographical configurations'
whichcount for legal purposes". What is this concept that the Court is
invited to recognise in lieu of the geographical facts of coasts, coastal
lengths, coastal directionsand coastal relationships? There is no support

for such a statement. "Political geographyn has nothing tu do with the
physical characteristics of a Coast. It cannot be invoked to "refashion
nature". There is no concept in the jurisprudence of what stems to have
been advanced by Malta as a kind of theory of political natural
prolongation.

2.41 Malta's geographical case isin eiïect summed up by the state-
ment in paragraph 122 of its Memorial that "any coastal feature counts
equallyand must be giventhe appropriate controllingeffect* - provided

there are no "unusual geographical elements" present.This is an admis-
sionthat geographicalfactorsdo not count whenit cornesto applyingthe
ThcscassertionsacealtwirhinChapter5,SectionA.2.andC.bclow,and inthcAnmx
of delimitationagreement, hcreit is shown thatStatcpracticedosno1at al1support
Malta'scontentions.
'It irevcalingof Malta'sattitutowardgmgraphy thatMslta failcdto indicatcwhich
basepointsandwhichshortabuttingcoastitconsidercdto k of sptcialrclcvana.40 CONTINENTA LHELF i381

equidistancemethodin a settingsuch as this. Ofcourse,"specialcircum-
stancesnmust be found not to exist - in this case rephrasedas "unusual
geographical elements'". Once these have been disposed of, then only
basepoints are of any concern, .according to Malta. But this accords

neither withthe jurisprudencenor withthe facts. In the present physical
setting it isnot possibleto overlookthe particular factsof geography - to
ignorethe coastsof the Parties, their lengthsand relationship - in order
to arrive at the conclusionthat the geography is "normal" and "simple"
and Iacking in any "special or unusual features".

2.42 Exactly how the above assertionsare to besquared with what is
said in paragraph 220 of the Maltese Memorial, that "it isthe relation-
ships of coasts which really count" is truly bewildering since it would
appear to be the Maltese contention that basepoints, not coasts, coum.

Equally perplexingin the context of a setting claimed tobe "simple"and
"normal" is the followingstatement found in paragraph 129:

"The difierencesin the geographical identity of the two States

are so marked that the requirement of equity that 'like should be
cornparedwithlike' - 'theonly absoluterequirementofequity' -
- is not applicable."

Bythis statement Malta atternpts to cast off the findingsof the Court in
the Tunisia/Libyacase2.Butthe statement alsosuggeststhat the problems
involved incornparinga very small island State with a large continental
State with an extensivecoastline are not exactly "simple" or"normaln,
quite asidefromthe primaryobjectiveof the statement - to discredit the

application of the test of proportionality in the present caseg.

4. TheMajor Importanceof theCoastsof the
Parties in thePresent Case

2.43 In contrast to the incompletetreatrnent of coasts in the Maltese
Memorial, considerablepains were taken in the Libyan Memorial to
describe for the Court the coasts of the Parties'. It is unnecessary to

repeat herethe detaileddescriptionofthe coastsofthe Maltese Islandsset
'As noicdinpara.4.06 of the LibyunMemorial.Maltahadlittlcdifficultyingeitingridof
the'spccialcircumstancw*exceptiontoquidistancc containcdinthe 1958 Conven-ion
the basisfor Malta's1966Law. It rncrclylcft this exuption itLaw.
'ConrineniaSheif (Tunisia/Libyan Arab Jamahiriy.Judgmcnt, I.C.J. Reporis 1982,
p.76,para.104.Thisuse ofihc Court's statcment out ocfontcxtis discussedat para.6.16
bclow.
'The complcxiiof cornparinga smallislandgroupwitha large continentalStatc withan
extensiveoastlinwas givcnconsiderable cmphasisin the Libyan Memorial (see paras.
2.49, 9.11-9.1and 10.08-10.11).
'Libyan Memorial. paras.2.26-2.51,9.13-9.21.and 10.081.0.1Forththere - a summary willdo. The length of coasts measuredaround
the Islandsof Malta and Gozo,taking into account their indentations, is
roughly 190 kilometres. On the Island of Malta only the coast between

Delimara Pointand Ras il-Qaws - approximately 21 kilometres - can
beconsideredto facesauthward towardthe Libyancoast.On the Islandof
Gozo, only the segment of coast between Ras in-Newhela and Ras il-
Wardija - nomorethan 7.3kilometreslong - can be regarded as facing
southward toward the Libyancoast. Ifthe Maltese baselinesare referred
to, however,as shownon Map 2, only portions of the baselines between
Filfla and Delimara Point, an overali distance of under 14 kilometres,

facessouthwardtoward the Libyan coast.Themuch longercoastal front
dong the baselinefrom Filflato Ras il-Wardija on Gozodoesnot faceany
Libyan coastbut, rather, facesthe Italian islandsand the coastfTunisia.

2.44 The Libyan coast was also described in detail in the Libyan
Memorial'. The differenceinscalebetweenthe coasts of the Parties is at

onceapparent, making it necessary totake longer segments ofthe Libyan
coast in describingit. Theentire coast of Libya betweenRas Ajdir at the
border with Tunisiaand the Egyptian borderstretches more than 1,700
kilometres.The section of Libyan coastbetweenRas Ajdir and Ras Zar-
rouqmeasures some 403 kilometrestaking into account its minorindenta-
tions, and about 350 kilometres taken as one coastal front, and faces
generally northward. Asnoted above,its direction is not the same as the

direction of the portion of Malta's baseline between Filfla and Ras il-
Wardijaand thesecoastal frontscould not be regarded as abutting on the
area relevant to thisdelimitation. However,some portion of this part of
the Libyan coastmight be regarded asrelevantto a portionof the baseline
between Filflaand Delimara Point. The rest of the Libyan coasteast of
Ras ZarrouqPneedsnorepeatinghere sinceit isclearlybeyondthe area of
interest inthe present delimitationand relates to future delimitationswith
Italy and Greece.

LibyanMernorial,paras.2.4t-2.48.ThepockctseofiVol.IIofthiCountcr-Mcrno-
rialcontaiasmap oftheCcntralMcditerrantthatmay bc rcfcrredin rcadingthcsc
paragraphs.
*SecLibyan Memorialpara. 2.44.42 CONTINENTA SHELF 1401

2.45 The following Table summarises the various possible coastal
length comparisons:

-ibya -alfa -atio

( ) Total coastai lengths.............,727km 190km' 9:1

(2) South-facing coasts of Malta
and Gozo - Libyan coastal
front between Ras Ajdir and
Ras Zarrouq ......................50km 28.3 km 12:1
(3) South-facing baselines of
Malta and Gozo - Libyan
coastal front as in (2) above... 350km 14 km 25:1

(4) A line constructed between the
westernmost pointof Gozoand
the easternmostpoint of Malta
- Libyan coastal front as in
(2) above .......................35.0km 45km 8:1

What this Table shows is that, granting Malta the rnost favourabie
interpretationofwhat part ofitscoast facessouthwardtowardthe coastof
Libya betweenRas Ajdir and Ras Zarrouq- that isbyconstructing aline

between the westernmost poino tf Gozoand the easternmost point of
Malta - the comparison is still of only 45 kilometres of Maltese coast
with 350kilornetresofLibyancoast (also measuredina straight line) ora
ratio of about8:1.

2.46 It isalso pertinent to considerthe questionofcoasts in relation to
total land area. In this respect,the territory of Malta comprisesan island
group havinga total area of about 315square kilometres.The Tableson

pages 140and 141of the Libyan Memorial comparing Malta with other
Mediterraneanislandsinrespecttosurface areas andcoastal lengthsshow
that in area Malta is less than half the sizeof Minorca and considerably
smaller than Corfu, Ibiza or Djerba. It is nearly twice the size of the
Kerkennah Islands. In coastal length, nature has been more generous
because of the shape and arrangement of the Maltese Islands. Consider-
ingthe coastal lengthsof al1the Maltese Islandsas 190kilometres,Malta
ranksjust behindRhodes andahead of Corfu,Minorca, Ibiza,the Kerken-
nah Islands,Djerba and Elba. Nevertheless,its coastal length is far less

than that of Majorca. Apparently, however,Malta choosesto shun this
geographicaladvantageand to ignore itscoasts.Incontrast, Libyaencom-
passes some 1,775,500 square kilometres. Its coastal length of 1,727
kilometresextendsalong the Central Mediterranean from app- -imately
'This mtasurcmcnt,it will bc recallcd,is the lengtof thecoastaroundthe
MaltesIslands.1411 CowNTER-MEMoRIALOF LlBYA 43

the 11" 33' E longitude to approximately the 25" E longitude behind
which liesits land territory stretching far 10the south'. Libya'snorth-
facingCoastfacesMalta, Itaiy, mainland Greeceand the island of Crete.

2.47 Malta has attempted with some ingenuityto turn the fact of its
verysmallsize in its favour- to seeksomeformofcompensationbecause

ofitssrnallsize.For whileadmitting in paragraph 29that in the contextof
island developingcountries Malta has beenidentifiedas small in territory
and verysmall in termsofpopulation2,the MalteseMernorial hasasserted
that its status aç an island developingcountry is a relevant circurnstance
entitling it, in effect,to preferential considerationin delimitingthe conti-

nental shelfin the present casea. However,it seems evidentthat sizeis a
geographical factorthat is of relevanceinthe presentcase. Surely, a small
groupof smaller islandscannot beconsideredto generate a totallydispro-
nortionate amount of continental shelf in a delimitationbetween it and a
continentalState comprisinga very long coast and an extensivecontinen-

tal landmass in a constricted setting.
2.48 Furthermore, the entent of the land territory behind the coast

must be regarded as linked tothe facto~ofthe natural prolongationof the
land territoryof a State from its coast seaward by wayof its continental
shelf. The land territory behind Libya's extensive coast is immense,
whereas boththe coastand land territory of Malta are verysmall.Surely,
the intensityof the natural prolongationmust be greater - the prolonga-

tion, more natural - from the Libyan coast in arriving at a line of
delimitation'?
2.49 Turning to the matter of coastal relationships, it is evident that

this factorhas a direct bearing or1verifyingthe equityofthe result through
' Landarea/coast ratios kmz perkmofcoast) arc: Libya-1,028.08km2;Malta-1.km2.
'Astopopulation,the followingare therelevantstatisticscontainLibyahenernorial:
Libya (1977)-2,939,200. Malta( 1981)-320.000.The 1983population of Libyais csti-
mated at 3,400,000,an increasc in six ycars that exceedsthe total prcscni populationof
Malta. Projectionsas to populationarc thcsc:
-981 -000 -ac-#
Libya 3.100.000 5,700,000 2,600,000
Malta 320,000 400.000 80,000
'This subject in covcredin SectA.4.of Chaptcr 3 bclow.
'Malta'sncglcctofthe factorof sizcisseenin its trapezium consiruct.whcrcthe total arca
covcredbythe trapeziummeasures,accordinIOLibya'scalculation,288,074squarckilomc-
trcs. Malta wouldallocaic 47,848square kilom[Oitsclfand 240,230squarc kilometres
to Libya. Intcrmsolcoastal Icngths.this wouldmcanthat cach kilometrcof Maltcsccoast
(basedon aMaltcsecoastallcngtof190kilometrcs-the total coastallengthsaroundcach
of the islands) would rcccive 251.8square kilorncrrcsof continental shclf. In contrast, a
kilomeireofLibyancoast wouldreceiveonly 170.2squarc kilometresof continental shelf
(bascd ona Libyancoastallengthof 1.411kilomctresbctwccnRas Ajdir and Ras at-Tin to
accord withthe trapeziumconstruct)lntermsoflandmass,thisallocationwouldresult in
cach squarc kilometrcof Mattcse landniass(ofa total arca of 315 square kilometres)
ofLibyanlandmass(out ofa totalf 1.775.500squarekilomctrcs) havingallocatcdtoit ,135e
square kitometre.44 CONTINENTAL SHELF i421

the test of proportionality based on the length of relevant coasts. Malta

seems to have rejectedout of hand this principle, well-establishedin the
jurisprudence of the Court. But this is not the sole relevanceof coastal
relationships- for they alsobear onthe areas ofshelfto whichthe Parties
may claim entitlement and hence whichare relevant tothe present case.
Forthe continentalshelfisthe natural prolongationofthe land territory of
each Party, and this natural prolongation starts from the coasts of the

Parties and not from baselinesor basepoints. Hence, the relationshipsof
the coasts of the Parties necessarilydefine the areas of continental shelf
which are pertinent to a delimitation between them.
2.50 Thus, a major factor in relating the coastsof Libya and Malta to

each other is size. Malta is a group of small islands with very short
coastlines;Libya is a large continental landmasswith an extensivecoast-
line-whichfronts on virtually the entire length of the Central Mediterra-
nean (comprising the Pelagian and Ionian Seas) and evenon portions of
the Eastern Mediterranean. Howthen are the many little lengthsofcoast
ofthe Maltese Islands,facing inal1sortsofdirections -but onjyto a very

lirnited degree to the south toward Libya - to be related to the long
Libyan coastline? For though the entire stretch of Libyan coast rnay be
seento facegeneralty north, in varioussections - such as on the western
and eastern sidesof the Gulf of Sirt- itfacesinquite different directions
for distances that Farexceed the various segments of Maltese coast. The
"tilt" of the Maltese Islands accentuated by the baselines adopted by

Malta, together withthe tiny lengthof coast of the Island of Malta facing
east, make clear that theonly Libyan coastto have any possiblerelation-
ship with Malta eatends no further to the east than Ras Zarrouq.

2.51 So itmust be concluded that the coasts of the Parties and their
relationships to each other were virtually ignoredby Malta. Instead,
Malta attempted to turn its small size in its favour. The various devices
used to camouflagethe geographical factors relevant tothe present case
havebeenquite fully discussedabove.Other devicesof a differentcharac-
ter will be taken up in Chapter 3 dealing with the irrelevant factors

advanced by Malta. It is appropriate to turn nowto see how the sea-bed
and subsail of the continental shelf lying between Libyaand Malta fared
in the Maltese Memorial - the subject of the next section.

C. The Sea-Bed and Subsoil of theContinentalShelf Areas
Introduction

2.52 The relevance to a delimitation of the continental shelf of such
factors as the physical characteristics of the sea-bed and subsoilof the
continental shelf lying betweenthe Parties, as discussedby this Court and
by the Court of Arbitration in 1977, was taken up in paragraphs 6.45
through 6.54 of the Libyan Memorial. The facts relating to the sea-bed

and subsoil, which Libya considers to be particularly relevant to the1433 CouNTER-MEMoRIALOF LlBYA 45

present delimitation, were fully dealt with in Chapters 3 and 8 of the
Libyan Memorial.Yetevenif Malta'swhollyinadequatetreatment of the

physicalcharacter of the sea-bedand subsoilof the continental shelfdoes
not cal\for the introductionof newelements in Libya'sCounter-Memo-
rial, it isinitself worthyofattention inajuridical analysisofthe Memorial
of Malta. In addition, a nurnber of Malta's assertions require response.

2.53 The setting is described in the Maltese Memorial as lacking in
"special or unusual features'", though modern bathyrnetric charts show
otherwise. It may be for this reason that Malta's maps do not reveal the
features of the sea-bed.Malta evenclaims that the natural prolongations
of Malta and Libya overlapas far east as Ras at-Tin on the eastern coast

of Libya, but Malta producesno support for this assertion. Quite to the
contrary, such a claim is based on an artificial construct that takes no
account of either the geographical setting or the sea-bed morphology.

2.54 Beforeturning tothe variousassertionsof Malta aimedgene~ally
at attempting to depictthe area of shelf between the Partiesas continuous
and featureless,an examinationof thejurisprudence is appropriate. In its
Judgment in the Tunisia/L iabsyawhile notfinding geomorphological
or gwlogical factors usefuleither in determining the lirnitsof the entitle-
ment toareas of shelfor as relevant circumstances in the delimitation of

the shelfbetween theparties in that case,the Court gave fullconsideration
to the contentionsof the parties regarding the featuresalleged to exist on
thesea-bed aswellas to thegeologicaldata said torelate to thedetermina-
tion of the natural prolongation from the coasts of the parties. In para-
graph 61 of its1982 Judgment, the Court stated thatitwas ofthe view-

"..that what mustbetakenintoaccountinthe delimitationofshelf
areas are the physicalcircumstancesas they are today;that just as
it is the geographical configurationof the present-day coasts,so
also it is the present-day sea-bed, which must beconsidered.Itis
the outcorne,notthe evolutionin the long-distance past, whichisof

importance2".
Thus, the Court made clear that the present-day sea-bed just as the

configurationof the present-day coastsisoneofthe factorsto beexamined
in any case of continental shelf delimitation.
1. Malta'sTreatmentof Geomorphology

and Geology
2.55 The sketchy treatment of geography in the Maltese Memorial
was matched by an even more sketchy discussionof geomorphoiogyand

geology, limitedto a few paragraphs and some phrases that are repeated
*See MalieseMemorialpara.234(b).
'ConrinentalShelf (Tunisia/LibArabJomahiriya).Judgment,I.C.JReports 1982.
p. 54, para.61.46 CONTINENTAL SHELF 1441

onand offthroughout the pleading.The keyparagraphs in this respectare
paragraphs 56 and 57'. The followingpropositionsare stated in para-

graph 56:
-the seafioorbetween the Parties exhibitsa "generally east-west

or northwest-southeast trendingrelief';
-"Broadly to the south of Malta are a series of deep troughs

reachingover 1000m. indepth knowngeologicallyasthe Pantel-
leria and Linosagraben (also knownas 'Fossede Malte', 'Fosse
de Linosa'and 'Chenalde Medina')";

-"Mid-way between Malta and Libya is a broad shallowregion,
mostly lessthan 400 m. deep called the Plateaux of Metita and
Medina. Geologically thisis an elevated region bounded to the
north and south by fault systems"; and

-a referenceto the Tripolitanian Furrow,quoting fromthe Judg-
ment in the TunisialLi cayeathat this feature does not "dis-
play any really marked relief until it has run considerably

further to the eastthan the area relevant to the delimitation".
Paragraph 57 is set forth below inits entirety:

"The entire region south of Malta as far as the Libyan Coast
relevant to this case forms a continuous continental shelf. In the
geological terminology of continental margins, no continental

slopesdescending toabyssal depths are found inthis area."
2.56 The lastoftheseassertionswillbeconsidered first. It issimilarto

the statement appearinginparagraphs 132and 248ofthe MalteseMemo-
rial that "the seabedisa continuum in geologicaiterms". These phrases
surn up one of the themes of the Mernorial of Malta-it reappears
throughout Malta's pleading taking other forms such as: "continuous
continental shelf' or "same continental shelf" or "simple continental

shelf'(e.g.,paragraphs 57, 211, 234(a) and 272(b)).
2.57 These statements need to be examined in the Iight of the facts.
The bathymetric charts cleariy show the lack of similarity between the

sea-bedsofthe PelagianSea and the ZonianSea,dividedas theyare bythe
very evident discontinuity created by the line of escarpments and fault
zone. This can be plainly seen on the bathymetric chart appearing as
Map 3e. Surely these two sea-bed areas cannot be considered to be

'Secpara.55,whichdcscribestheMaltese1slan'cmcrgentpartsoftheMalteseplateau
(sometimcscalledthelblcc-MaltaPlateau)",anddealswithMalta'sgeographical, geamor-
phologicalandgeofogicaltics to Sicily. This pointwill bc discussedin para.2.80. below.
diffcrencesbetwccnthesesea-bedareas.PhotogofthisMcdelcanbefoundat theverysthe
backofVol.of theLibyanMemorialandfacingp.5aswcllasinthepofkctsectionofVol.
III of this Countcr-Mcmoria(fn3 atp.47, bclow).continuous orto forma "continuum". As to the seafioorof the Pelagian
Sea, how can itbe described as a "continuous continental shelf" or the
"same" or a "simple" continental shelf?

2.58 A sea-bed slicedup bytroughsand channels'isin nosensecontin-
uous. A continentalshelf-which consistsnot onlyof the sea-bedbut also

of the subsoil-with major rifting acrossit, soapparent fromthe illustra-
tionsin Parts II and IIIof the Technical Annexto the Libyan Mernorial,
canhardlybe described,ineither geomorphologicalor geologicatlerms,as
a "continuumn. In fact,the word"continuum" hasnostatus as a geologi-
cal expression;it cannot be foundin geologicaldictianaries. However, the

term "continuity" is a term whichmay, inthe appropriate case, be usedin
describingeither the sea-bed or the subsoilof a particular area of conti-
nental shelf. But there can beno continuity of shelf when cutting across
the sea-bedisa major geornorphologicaldiscontinuityin the formofdeep

troughs and connectingchannels forrninga Rift Zoneapproximately 300
nautical milesin length and varying in width between 15and 50 nautical
miles,runningal1the wayfrom the EgadiValley2betweenSicilyand Cape
Bon tothe Heron Valleyfar totlïesoutheastof Malta at thejunction ofthe

Sicily-Malta Escarpment and the Medina Escarprnent3.
2.59 Nor can there becontinuityofshelf geologicallywhenthe subsoil

iscut through by a Rift Zonewhosebathymetric expressionisseenin the
troughsand channels referred toabove.Thedepth of the rifting inthe area
of the Medina Channel (ingeological terrns,the Medina graben) that
runç roughly east/west to the north of the Medina Bank,cutting it off

fromMalta and from theRagusa-Malta Plateau, isplainlyseenon Figure
No. 1 in Part III of the Technical Annexof the Libyan Mernorial.These
rifts, whosebathymelric expressionis the Medina Channel, slice through
the Tertiary, Cretaceous, Jurassic, Triassic and Permian layers of the

subsoil (strata as oldas 250 millionyears) downto a depth of morethan
five kilometres. Seismicreflection profilesconfirrnthis fact'.

2,60 What standsout frornthesefactsand froman examinationof the
bathymetric mapsisthat the area of the sea-bedisquite unlike theNorth
Sea or the English Channel or the Adriatic Sea or the Arabian-Persian
Gulf, to take but fourexamples.If byreferringto a "simple"or "the same"

shelf,al1that the Maltese Memorial rneansto Sayisthat thiswholearea is
part ofthe sameAfrican Platewhichisgenerally acknowledgedto include
Ii shoulbcnotcdtbattheterms"irough"and'channd" referio fcaïurcsontsa-bcd;
"rift-and'fault"refertofeaturthesubsoilwhmegeornorphologicrlprcssioisctnin
the'troughs" and 'channelso"f the Rift Zone.
'Thc Egadi Valley isa fcaturcnamon ihcIBCM.
'Fora graphicillustrntofthe Rift Sonsecthe Libyan Memorial.Fig4facingp.132
and Map 17 facingp. 160.
+Itistheviewofscientiststhatthcriftingarcaissodcepseatcdastocutintotheuppcr
mantlcof thecarth.Faultssucha dcpth couldrcachupto20 kilometrcsbencaththesca-
bed.Sceiibyan MernorialTechnic Annex,Part111-8.48 CONTINENTALSHELF 1461

the southern part of Sicily,then the point shouldhavebeen made in these
specificterms.Libya doesnotquestionsucha conciusionastothe extentof
the African Plate'. But the African Plate is not synonymous withthe
continentalshelf. In fact, there are severaldistinctcontinental shelvesto

be foundon the African Plate. As waspointedout in the Libyan Memo-
rial, the Rifi Zone is of such significancethat it is regarded by many
geologistsascreating a divisionin this Platebetweentwoseparate shetves.
This divisionis activelyoccurring today and continues to affect the sea-
bed, creating deep troughs and connecting channelsthat constitute a

fundamental discontinuityin the seafloorz. Toquote from Part 111of the
Technical Annex to the Libyan Memorial:
"It is evident that the rifting process in the Sicily Channel has

already evolvedto a stageas nowpractically todividethe Pelagian
Sea into two separate blocks. One to the north is formed by the
Adventure and Ragusa-Malta Plateaus; the other on the south is
formedby the Lampedusa and MedinaPlateaus.This secondblock

remains substantially connected tothe North African megaplate
becauseevenif it isaffectedby severalextensionalfaults, theseare
not large, associatedand coherent like those of the SicilyChannel
rift system and do not constitute a continuous rift systern of
regional importance. The fact that the Maltese Islands emerged

during the time of,and in connectionwith, the rifting processthat
separated the Ragusa-Malta Plateau fromthe Medina Bank shows
how intrinsically connected these events are3."

2.61 However,Libya hassoughtinpresentingitscaseto ernphasisethe
present-daysea-bed. It is quite enough to observethe major geomorpho-
logical manifestation of the Rift Zone across the line of troughs and
channels-creating a fundamental discontinuityin the sea-bed-in order

to refute the idea of continuity4. The geologicalsignificanceof this Rift
Zoneonlyservesto emphasisethe fact that it constitutes a majordisconti-
nuity that extends al1the way across the Pelagian Block.

2.62 Taking the various other Maltese assertions set forth above in
turn, the direction of "trending relief*'of the sea-bed between Libyaand
Malta (paragraph 56) accords entirelywiththe factual descriptionof the
geomorphologicalfeatures of the Pelagian Blockas described in the Lib-
yan Memorial,wherethe word"grain" was employed.This isparticularly

revealedin the northwest/southeast trend of the Coastof Sicilyfacingthe
Pelagian Sea, the similar direction or "tilt" assumed by the Maltese
'See LibyonMemorial,para.3.11.
'Ibid., paras.3.12-3.20and 8.03-8.13,and PIIand III of its TechnicalAnnex. It is
interestingto notethat the AfricanPlatelies on bothsidesof the East AfrZone,ift
another rift zoneof first-orderimpor(scepara. 2.76 and fn. I to p. 52 below).
%A(p. 111-4.
'The factsregarding the importaefthesefeaturesareacknowlcdgtdin para.54ofthe
MalleseMemorial.Islands (which Malta'ssouthwest-facingbaselinebetween Filflaand Ras
il-Wardija further emphasises) and by the direction of the Rift Zone of
troughs and channels extendingsouthwest,south and southeast of Malta
described in detail in the Libyan Memorial and discussed later in this

Chapter. Sucha descriptionof"trending relief" does not at al\ accord with
the area east of the Pelagian Blockboundedbythe escarpmentsand fault
zone - that is,the area of-thelonian Sea wherethe lonian Abyssal Plain
and the Sirt Riseare located. Thisarea to the east isgeomorphologically

and geologically quite different.

2.63 The next assertion found inparagraph 56, regarding the troughs
'broadly tothe southof Maltaw,isincompleteand inexact,but it would be

tediousand unnecessaryto engage in a detailed analysis of the defects in
this brief description.The main pointisthat the presenceofthese troughs
is a completerefutation ofany idea of continuity or a "continuum" across
this area ofshelfbetween the Parties.The seriesof troughs werenoted by

theCourt initsJudgment inthe TunisialLibya case1. The LibyanMemo-
rial givesa completedescriptionof the features whichconstitute the Rift
Zonez. Theyare very clearly shownon the bathymetric chart appearing
as Map 4facingthe followingpageandon the Sea-BedMode1providedto
the Court with the Libyan Memorial8.

2.64 The main defectwith thisallusionto thesesea-bedfeatures inthe
MaiteseMemorialisitscasual treatment andthe failure to pointout tothe

Court the geomorphologicaland geological exteiit and significanceof
these features'. It can only beassumed that Malta has neglected to
discussthe importanceof these major features because their presencein
the sea-bed between Libya and Malta is an embarrassment to the case
Malta wishesto put forward.Otherwise,after a brief lookat a reliefchart

or mode1 of this area of continental shelf between Libyaand Malta, how
couldsuch a setting be describedas lackingin "special or unusual
features"?

2.65 The next two assertionsrelate to the "broad shallowregion" said
to lie mid-waybetween Malta and Libya, calted the "Plateaux of Melita
and Medina",and describedasan elevatedregiongeologicallyboundedto

'ConlincnralSher (Tunisia/tibyan Arab JarnahiriyJudgment, I.C.J. Rcporis 1982.
p. 41.para32.
iibyan Mernorialparas.3.12-3.20and8.03-83.
'Sec thephatographgsivina ptnpectivviewofthisModcl facingpagc30ofthe tibyan
andocast/wcsvicwsoftheModclhaveibtcnincluddinlthiCountcr-Mcmorial facirng50outh
and in thpocketsectionofVol.III.
'Thcexistenceandimportancoefthescfcaturcsisnot amattcrofcontrovcr.hcyappcar
onal1bathymttrichartsoftheareaandarc dcalwithcxtcnsivcinthescientiflittrature
(setchecitationsinthepap in thcTechnicalAnnex totheLibyanMernorial).50 CONnNENTAL SHELF [dg]

the north and south by "fault systems"(paragraph 56) and, morespecifi-
cally, to the 'Tripolitanian Furrow".Again, it is regrettable that Malta
has not given the Court a detailed descriptionand has omitted certain

facts of importance.
2.66 The featuresconstitutingthiselevatedregion - usingthe nomen-
clature which appears on Map 4 - are the Lampedusa Plateau on the
Westand the two Melita Bankstothe south and southeast of Malta lying

approximately alongthe line of34" N latitude; to the north and east of
theseBanksisa large,almostsquare elevatedarea at the northwestsideof
which is an elongated, cone-shaped figure defined by the 200-metre
isobathknownasthe Medina Bank.This Bankdoesnot followthe "grain"
of the Rift Zone, the Maltese Islands or the southwest-facing coast of
Sicilybut instead trendsnorth-northeast/south- sarulehtoetst,
Medina Escarpment to its east. -1tsdirection is thus quite different from

the 'tilt" of thealtese Islands. It is to the north of the Medina Bank
area that the Rift Zone crosses.
2.67 In the interests of accuracy it isbest to refer directly to Part 1of

theTechnicalAnnex to the Libyan Mernorialto describe these features'.
There the sea-be udderlying the Pelagian Sea was described as being
"divided into a Southern Unit and a Northern Unit, the dividing line
behveenUnits beingthe Rift Zone ...(page 1-5).The Melita and Medina
Banks weredescribed as follows(page 1-10):

"The Melita Banksconsistsof twoshoalsof a depth of 86 rnetres
and 154metres, respectively,justeast of the centre of the Southern
Unit beingdescribed here. Morphologically there are,ust as inthe
caseofthe Medina Bank, noabrupt featuresat a11to befoundhere
- only very smooth elevationsof the sea bottom. Especially on
their southern slopesthe gradients are verygentle. In Wntrast, the

inclinations in a northerly direction are rnuch stee....
It is, as a matter of fact, very difficultto draw a dividing Iine
betweenthe northern flankof the area of depression called by the
Court in its 1982 Judgment the 'Tripolitanian Furrow' and the

Melita or Medina Banks."
2.68 The fault systemssaid byMalta to lie to the north and south of
this "elevatedegion"are, respectively,the Rift Zoneonthe northand the
ancient fault systemon the south whichtoday has no bathymetric expres-

sionother than the wide,flat depressionnorth of the Libyan coast which
owesits present configurationto erosionalfactors.esetwo"fault zones"
'Vcryfull descripofal1thesefcaturcsarcto be foundinparas.3.25-3.37ofthcLibyan
MernoriaandinPart1 of itsTechnicalAnnex; theccomorphologicaalndgcological
distinctionbctwccnthedeprscdirnentayasinnorth otfheLibyanast. oftcnrcfcrrcd
toastheTripolitanFurrow, antheRiftZonearealsosptllcdoutin paras.8.10-8.13of
theLibyanMernorial.Fig.3of LibyaMernorialhcing p.38-a contourrnap-dcpicts
thosfcaturaclcarly.[49J COUNTER-MEMORIAL OF LIBYA 51

havealrnostnothingincommon.The Rift Zoneisa majorgeomorphologi-
cal and geologicalfeature that separates the areas to itssouth frornMalta
and the Ragusa-Malta Plateau, whereasthe "Tripolitanian Furrow*and
the banks ta its north are features that are barely noticeableon the sea-
bed,have no presentrday'geomorph silniicacaeand, comparedto
the Rift Zone,are geologicallyquiescent.This depressionin the south has
beenreceivingdepositsof sedimentsinceancient times, depositsthat now

are of a depth of up to four kilometrItdeepensgradually toward the
east (just as it deepens going northward fromthe northwesternst of
Libya). Thisdeepeningofthe seafloorbecomesmoremarkedafter passing
the eastern edgeofthe Pelagian Blockintothe Sirt Risearea ofthe Ionian
sea.

2.69 A finalpointin this sectionof the Maltese Memornds tobe
dealt with beforemovingon to a descriptionof the features of the sea-bed
and subsoilof particular concern in the present case. Thise implica-
tion in paragraph57 that the relevant area iç a continuous continental
shelfduetu the absence ofcontinentalslopesdescendingto abyssal plains.
The conceptofcontinentalmargins,equatedsolelywiththe morphological
sequenceof shelf-slope-ris elanb,an nalbe appliedto the area of

the Pelagian Sea.But this quite technical defect in parag57pof the
Maltese Memorial is minor compared to its failure to recognisethe real
point. The area of continental shelf relevant to the present case lacks
continuity for a quite differentreason. Thisis the presenceof troughsand
channels in the sea-bed betweenalta and Libya, the deepest of which
exceeds1,700metreswithslopeswheresteepnessisat tirnes1:5asopposed
tothe average foa continentalslowof 1:14aswellas thepresenceinthe
subsoilof grabens that cut deeply into the strata.

2.The Importanceof thePbysicalFactors
of Geornorpbolog ayndGeology in the,Present Case

2.70 Libya does not intend at this stage in the pleadingsto introduce
any newscientificmaterial in further supportof the fact that a fundamen-
ta1 discontinuity cuts across the area of continental shelf betwecn the
Parties in the formof the Rift Zone that tbisareaofshelf is bounded
on the east by major geornorphoIogicaland structural features:the lineof
Escarprnents and Fault Zone. These facts are fully documcnted in the
Libyan Memorialand its TechnicalAnnex. However,dependingon what

comments Malta may have regarding the elementsof Libya'sscientific
case as setforth in the Libyan Mernorial, Libyareserves the right to
supplementthe scientificmaterial already providedto theCourt withsuch
additional materiaas may be necessary to putthe facts straight and to
crystallise the issues the Court.

2.71 Much of the discussionof the physicalfactors of geornorphology
and geologyregarded by Libyaas directly relevant tothe presentcasehas52 CONTINENTALSBELF [501

emerged in the foregoingcritique of Malta's treatment of these factors,
which cornes downto ignoring them almost completely and, instead,
resortingto such mischaracterisationsof the sea-bedand subsoilas "con-
tinuous"and aslackingin "incidentalorunusual features". Neverthelessa

short resuméis necessary.
2.72 The sea-bedand subsoilunderlyingthe PelagianSea-the area of
continentalshelfrelevanttothe present delimitation-are dividedintotwo

units or blocks. The southern block-that is, the section of continental
shelf south of the Rift Zone-is called in the Libyan Memorial the Pela-
gian Block. Geologicallyit also includesthe land areas ofthe Jeffara Plain
in Libya and the Sahel in Tunisia. The northern block - that is, the

section north of the Rift Zone-includes the two banks protruding from
Sicily, the Adventure Bank and the Ragusa-Malta Plateau (on which
Malta islocated), aswellas the Gela Basin.Thisunit extendsgeologically
to the edge of the African Plate, which cuts across Sicily'.The eastern
boundaries of this area of continental shelf followthe Iineof the Escarp-

ments-Fault Zone. They will be discussed in paragraphs 2.81 to 2.83
below2.

2.73 The best way to describe succinctly the geological evolution of
this area of continentalshdf isto refer to the summary paper attached as
Part II of the Technical Annex tothe Libyan Memorial, quoting directly
from paragraph 2.05of that paper:

"Starting about 10 million years ago, the northern part of the
continental margin, includingthe Ragusa-Malta Plateau, dislo-
cated from the African continental margin. This dislocation con-
tinues to this day afonga complexfault zonedefiningthe limit of

volcanicactivity observedon Sicily (referred to in the text of the
Memorial as the 'Rift Zone'). The expressionof this fault zone,
whichfrom severallinesof evidenceappears alsoto involvewrench
or strikeslip faulting, is most apparent in the seafloortopography

immediately southwest of Malta. Around the Late Neogene
(approximately five million years ago), as part of this tectonic
activityalongthe fault zone,the Ragusa-Mafta Plateauand Malta
were uplifted."

2.74 The geological pbenomena describedabove created the major
sea-bed features that comprisethe Rift Zone. They consistof three deep

'Theseunits separatbythe Rift Zoneareillustratedin simplefashionon the Sea-Bcd
Mode1photograph facing 5.0The AfricanPlatcboundai onthe northisshownby the
theamesourceswhichappearedasLFig.intheLibyanMernorialintheTunisia/Libyiase.
'Thiseasternboundarywasnotedbythe Courtin para.32 of its Judgrnentin the Tuni-
sia/Libyricaseemployingtheterrninoyfgthe Partiesto that case: "Ionian Flexutc" and
'Malta-MisratahEscarpment"I.n the LibyanMemorialin the prcsentcase the features
comprisingthis eastcrnboundaryweregone into in some detailandthe boundary was
rcfcrrcdto as the "Escarpments-Fltone". [SI] COUNTER-MEMORIA LF LIBYA 53

troughs-.the Pantelleria,Malta and LinoraTroughs - and their geo-
morphologicaland geologiMlextensioneastward along the Malta and
MedinaChannelstothe HeronValleywhere theylinkupwiththeMedina
(Malta) Ridge1; 'The Malta Trough is the most pronounceciof these
features,being.longtr(87 nauticalmilesat the 1,000metre isobath)and
deeper (maximumdepth 1,715metres) than the other troughs.At the

1,000metreisobathit hasa widthof 11 nauticalmiles.The Malta Trough
crossestothe southoftheMalteseIslands where itcontinuesasthe Malta
Channelsouthof the Ragusa-MaltaPlateau to the southernpart of the
Sicily-MaltaEscarpmentandtheHeronValleyjust asthe LinosaTrough
continuestotheeastouttothe HeronValleyasthe MedinaChannel. The

closenessof the Malta Troughto the MalteseIslandsis reflectedin the
fact that the Islands werecreated as part of the same processesthat
producedthe Trough andthe other features of the Rift Zone. These
featuresare intrinsically associated witthhe geography, geomorphology
and the geologyof the MalteseIslands.

2.75 It istheRift Zoneasa wholethat istheaspectofprimerelevance
@ to the present case.The interpretativediagram appearingas Figure 4
facing page 132 of the Libyan Memorialwellillustratesthe impresrive

extentand width ofthis Rift Zonez .he sea-bedexpressi oofnhe Rift
Zonereflectsdecpstated grabens cuttingthroughthesubsoiltodepthsin
excessof fivekilometres.Youngvolcanicsthroughoutthe Rift Zoneindi-
cate whatisalsoshownbyseismicreflecrionand magneticanomalydata
that the Rift Zoneis activeoday,stretchingandshearingthesubsoil.As

istypicalofRift Zones,thebathymetricexpressionvaries alongitslength:
insomeparts therifting-wrenchingprocessbascauseddeeptroughsonthe
sea-bed;inotherpartsthe bathymetricexpressionisless,asinthe caseof
the Medinaand Malta Channels. Howevert,he geologicalimportanceof
the Rift Zone is no less inone area than in anothe?. For example,
betweenthe Malta and Medina Channelsto the south of the Ragusa-

Malta Plateau can be founda volcanicmount, further bnfirrning the
continuityoftheRift Zoneand itsconnectionbetweenthevolcanicislands
of Pantelleriaand Linosaand the Heron Valleyand Medina (Malta)
Ridge.

2.76 Inmany respectst,heRift Zoneisoneofthefirst-orderrift zones
Detailcddescriptsf thefcaturcscompritheRiftZoneappearinparas3.12-3.20
and 8.03-8.1of theLibyanMcmoria!Thcy appearclcarlyon thebathymeiriccharts
includwiththeLibyanMemarialandwiththisCaunter-Mernoral.eycanalsobcsécn
ontheSea-Bu!Model. Ailmodernbathymetricchartsof the PelaSeanshowthesc
fcaturtobcof majorimportancgcomorphologically.
'Sec al= para2.58abwe. andMap 4 facingp48.
'Thifactiexplaincdipara.3.20othLibyanMemorialandillustretbyFig2facing
p.32thercof.54 CONTINENTALSHELF F21

of theworld (of whichthere are a limitednumber)'. Onesuchexampleis
the Red SeaRift Zoneasto whichthere hasbeena great dealofstudy and
a high degree of agreement as to its importance. This rift zone now

constitutes a boundary between two plates. Insomeportionsthe morpho-
logicalexpression isverymarked;in others,suchas the Dead Sea whichis
part of the same rift zone,the topographieexpressionisconsiderablyless.
It isthe samekind of morphologicaicontrast onefindsbetweenthe Pantel-
leria, Linosa and Malta Troughs, on the one hand, and the shallower

Medina and Malta Channels,on the other: the rnorphologyvariesbut the
wholearea ispart ofthe sameRift Zone. It clearlyranks among the major
and relatively rare rift zones of the world2. In this connection, it is
interesting to note that in the Saudi Arabia-Sudan delimitation agree-

ments,the presenceof the Red Sea Rift Zone appears to havebeen taken
intoaccountinthe resultingsolution. However,the relativerarity ofsuch
firstorder featuresmeansthat theymaynot often be foundtoplaya role in
continentalshelfdelirnitations.This bringsoutthe particular relevanceof
sucha feature ifpresent in a givencaseand the striking nature of the Rift

Zone in the present case.

2.77 The important oceanographic function performed by these
troughs and channelswasdescribedin paragraph 2.10ofthe Mernorialof
Libya. They serveas the main passage forsaline Eastern Mediterranean

water to pass out through the Western Mediterranean into the Atlantic
Ocean. As there slatd (citing numerous technical papers in support):

'This ocean-type current flows ina strong near-bottom layer

from east to west via the Malta and Medina Channels and the
Pantelleria, Malta and Linosa Troughs. As it impinges upon the
seafioor, it generates large sediment waves in the floors of the
Channels, Exiting from the Mediterranean through the Strait of
Gibraltar, the current produces an important warm intermediate

layer stretching over a broad section ofthe Atlantic."
'Othcr faulorrift zonesinclude:the East African Rift. the RioGrande Rift, the Baihl
Rift, the Rhinc ValleyGraben. the Hon Graben.the GodowariRift ZRed.ScaRift
Zone.the GulfofCalifornieand the Afar Rift. It must,ofmurse.k rcoogniscdthat eachof
the abovefcaturtdifierin many respectfrom the othcn; for cxarnplc, the last thrcc
cxamplcsinvohc the formationoccanBoorrather than occurringin a cantinental sttting.
Set SEIDLER ..and JACOBY W. R. .Parameterizcd Rift Devclopmcntand Uppr Mantle
Anomalies".in Tectomphysic7,3 (1981pp.53-68.A "firstiirder" rift zoneisone whichis
extcndingobas cxtendedthe continentallithosphcrcrut).In thcaseof the Rcd Sca
Rift Zone this extensionhasksufficicntto kgin to form an ocfloor.
'In somewhatmoretechnicatenns.the RifZoneisan incipicnt boundarywhcrecontincn-
d crust has thinncd owingthepull-apart efïcctof the dagscated grabensnotcdabove.
However,the extensionof the earth'scrut hasnotcvolvuito the pointal whichoccancrust
hasben crcatcd. It maybedescribecias the bcginningofa continentalAtthe stage
at whichthe Rift Zonenow is, it is characteriscd by diffusefcatures.
delimitation.xof delimitationagreements,No. 37. Map5 facingthis page illust~tcs this 1531 CoumR-MEMoRIAL OF LlBYA 55

This "underwater rivernin and of itself is a relevant circumstance in the
prcsent case followingas it doesthe Rift Zone in carrying out its critical

oceanographicroleof helpingmaintain the equilibriumof the Mediterra-
nean Sea1.

2.78 Two other physical factors relating to the geomorphologyand
geologyof-the ara of continental shelf in question remain to be sum-

marised.The firstfactor is the tight morphologicaland geotogicalconnec-
tion of Malta with the Ragusa-Malta Plateau and with Sicily.This point
has been recognisedby Malta in paragraph 55of the Maltese Memorial,
where it was said that the Maltese Islands are "emergent parts of the

Maltese plateau (sometimescalled Ibleo-Malta Platea~)~whichextends
over a much greater submarine area than that suggested by their posi-
tion". This geographical-geomorphological-geologicatlie of Malta to the
Ragusa-Malta Plateau was givenconsiderable emphasisin paragraphs

2.22, 2.23 and 3.38 of the Libyan Mernuriala.
2.79 The meaningof the last part of the sentence quotedabovefrom

paragraph 55 of the Maltese Memorial seems obscure butit appears to
make the samepointaswasmadeinparagraph 3.38of the Libyan Memo-
rial that though Malta rnay be perched on the southwest edge of this
Plateau its geographical and geomorphological connection withthe Pla-

teauand with Sicilyisevidentfram any bathymetric chart (such as Map 4
@ and the IBCM). Moreovert,he Plateau coversa sea-bedof approximately
14,000square kilometres(based on the 200-metreisobath) comparedto
the 315square kilometres comprisingthe Maltese Islands,a not inconsid-

erabie area ofadjacent continentalshelfattached directlyto theseislands,
being sorne40 times the size of the islands themselves.

2.80 It has been notedabovethat the maps usedby Malia,based on
out-of-date British Admiralty charts4,seem intendedto negate what was
said in paragraph 55,since they show a break in the 100-metreisobath
givingthe illusionofa channeldividingthe area between Malta and Sicily.

'1thasbccncstimatcdthaibciwtcn the 305M1dmetredepthlwelafiowofthe mda of
0.6 to 0.8 million cubic metrcs pcr secondduring passeto the wcst along the
channcl crcatcd by the RiZonc (MOREL A... "Caractères Hydrologiquesds Eaux
EchangKs cntrc le BassinOriental et le BassinOccidental de la Méd, ahiers"C
Ocianographiqrrc, ol.XXIII, 4,pp. 329-343al 341.1971.)A mpy of this pais
attachcdasDocumrntaryAnne*4.Thiscouldbccornparcdtamajorriverlikcthe Amazon
whichdrains northeastern South Amcrica at a rate of about 0.18 millioncubic mctrespcr
second.Comparative watcrflowfigures forthe Rhinc River and Mississippi River, which
formboundariesbetwun politicalentiti.O0and .O18millioncubicmctrcspcrsecond,
'Thisfcaturc wascalled in the LibyanMemorialthe 'Ragusa-Malta Plateau" and isgiven
the namt 'Malia Plateaonihc IBCM.
@ ' Map ifacingp. 26.a rcducafanuplo-date BritishAdmiraltychart. vtry clearlyshow
thisfactbroughtout byMallSoalsodcs theltalian bathymctricchart rcfcrrcd10infn.3
to p. 25.abovc.
'Stc para. 2.11,abovt. 56 CO~NENTAL SHELF [541

Althoughit istrue that this wholearea of sea betweenMalta and Sicilyis
often referred to as the "Malta Channel," since it (rather than the area

southofMalta betweenMalta and Libya) isthe major east/west shipping
@ channel in the Mediterranean, Mop 4as wellas the IBCM show no break
in the 100-metreisobathand hencenobreak in the morphologicalconnec-
tion of Maita to Sicily. Scientific evidence tothe effectthat in prehistoric

and protohistorictimes Sicily and Malta wereconnected by dry land, as
well as the close parallels between Malta and Sicily geologically, are
discussed in a number of scientific paperst. The connection between
Malta and the Ragusa region of Sicily - bothgeomorphologicallyand

geologicallyin terms of present-day surface rocks - is particularly well
illustrated on the Carte Géologiqueet Structurale des Bassins(Tertiares
du DomaineMéditerranéen)preparedby 1.F.P.-C.N.E.X.O.P a portionof
which haç been reproduced as Map d'facing this page.

2.81 The final physicalfactors to be discussedrelate to the features
constitutingthe eastern boundaryof the shelfarea inquestion - iinderly-
ing the Pelagian Sea - to the east of which is that part of the Central
Mediterranean consisting of the lonian Sea and the Gulf of Sirt which

contains a number of distinctive geomorphologicalfeatures: the Ionian
Abyssal Plain,the Medina (Malta) Ridge, and the Sirt Rise, together
with several sea mounts. Figure I facing page 56 is a geologicalcross-
sectionof thisarea ofthe Central Mediterranean fromthe land territory of

Libya in the area of the Gulf of Sirt northward to the lonian Abyssal
Plain. (The locationof the cross-sectionis shownon the small indexmap
appearinginthe lowerright-hand cornerofthe Figure .tisapparent that
between the Libyan Coastand the lonian Abyssal Plain the sea-bed is

unaffected by faulting as is the subsoil down to strata formed over 25
million years ago at depths ranging between twoand three kilornetres

'Fauna:ENAY,R.. etal., "Faunes du Jurassique SupLrieurdans les SériesPélagiquesde
I'Escarpmentde Malt(Mer Ionienne) ImplicationsPaléographiq. evuedel'lnrîiîut
Franqaisdu Pétrole.1982.Vol.37,pp.733-757.KURTE. .,1968: PfeisîoecneManinials
of Europe.Wcidenfeld& Nicolson,London. 1968.
Proc.prehisSoc..1953:pp. 41-94.storicCultureScqucnccofthe Malte Archipelago".
GeofogyGRANDJACQUC E,. MASCLEG , .,-The Structurcof the IonianSa, Sicily and
Calabria.Lucanian,NAIRN A..E.M.. et al. (cds.): TheOceanBasim and Margins4B:
The WexternMediterranean.New York,Plenum, 1978, pp. 257-329;SccalsPEDLEY,
H.M.. "The PetrologyandPalacocnvironmentofthe SortinoGroup (MioctSE)Sicily:
Evidcnce for Pcriodic Emergcncc," Journal of rhe GeologiculSociety, London, 1983,
Vol.140,pp. 335-350.
'EdirionsTechnip,1974. publishcd by l'Institut Français du(I.F.PlIcC;entre
National pour l'Exploitation des OcCans(C.N.E.X.O and; l'Institut National
d'Astronomieet deGCophysigue.The colourschemeshownonMap6 to depict the surface
MioccnelimcstoneonthMaltest Islands matchesthat sppearingonthisMapinthe Ragusa
Section of Sicily. thus dcmonstrating the correlation bctwccn surfacc rocks in thcsc two
arcas. Such a correlationdoesnot appcar beiwc.cnMalta and othcrarcas borderingon the
PelagianSca.The scalcof this map is 1:2,500,000.It khnoted,howcvcr,that the
portion of the rnapappcaring as Map 6 has kcn slightly roductd. [Ssl COUNITR-MEMORIA LF LIBYA 57

belowthe sea-bed. Thus, this area reffectsreal continuity from the land
territory of Libya northward across the sea-bedand subsoilof the Ionian
Sea and is very different from the areas underlying the Pelagian Sea,
wherethe subsoilisslicedthrough by the Rift Zone andwherethe "trend-
ing relief"asnoted in paragraph 56 of the Maltese Memorial, is north-

west/southeast. It isinstructiveto quote froma recent papcr of Professor
Burollet in this connection:
"By its morphologicalaspect and its geographical position,this

rise [the Sirt Rise] represenasnatural prolongationof Libyaand
should then in al1likelihoodcorne under the jurisdiction of this
countryi."

2.82 However,the physical features directly relevant to the present
discussionare those that constitute the boundary betweenthe lonian Sea
and the SirtRise to the east and the Pelagian Sea to the westP. The last
illustration in the Libyanrnoriai, a photograph of the Sea-Bed Mode1

taken from the easta,graphically revealsthesefeatures consistingof,$rst,
the Sicily-Malta Escarpment runningsouth along the east-facingcoast of
Sicilyand theRagusa-Malta Plateau tothe Heron Valley, where it turns
out eastward along the northern edge of the Medina (Malta) Ridge;
second ,he Medina Escarpment,whichformsthe eastern boundary ofthe
Medina Bank and the Pelagian Block, a feature of geomorphological

prominenceto approximatelythe 33' 30'N latitude; anrhird,fromhere
south to the vicinity of Misratah on the Libyan coast, the Medina-Mis-
ratah Fault Zone, completing theeastern boundaryof the Pelagian Block.

2.83 The Sicily-Malta Escarpment plungesin places to a depth of
3,000to 3,600metres in the narrow space of 15 to 18kilometres.It turns
eastwardat the Heron Valleyand the boundaryisat thispoint assumedby
the Medina Escarpment whichtrends almost northeast/southwest and is
also a major geomorphologicalfeature if not as pronouncedas the Sicily-

Malta Escarpmenttothe north. The Medina Escarpment hasa maximum
vertical drop of 1,200metres and is approximately 87 nautical miles in
length. It is of particular interest that these two Escarpments are inter-
sected in the areof the Heron Valleyby the Rift Zone. As noted above,
Malta's Memorial, and in particular its trapeziumfigure,takeno noteof

theseboundary features'.
2.84 By way of summary, it should be said that features such as the
Rift Zone and the line of Escarpmentsand Fault Zone have rclevanceto

'BUROLLE P....YStructucndPetrolcumPotcntialof thelonianinDccp Oflshorc
TechnologConference19/22Uc~obre1981,Palma de Mallorca,Proceeding, ol. 1,
pp. 111at p. 6. A copyof thispage is attDocumenfaryAnncx 5.
' Thtsewcrcdcscribcddetailin paras.3.21-3.24and8.14-8theLibyanMemorial,
'A similarphotographisantaincd in the pocktt sectionof Voof thiCounter-
Mernorial.
a' 'Set Map 18 facinp.166,below.58 CONT~NENTAL SHELF 1561

the presentcasejust as do the coastsoftheParties and the relationshipsof
thesecoasts.The setting of this delimitation includesthe geomorphologi-
cal features of tsea-be add of the subsoil.No settincanbe described

as "continuous" or lacking in unusual features when characterised by
theseparticular physical factors.The Court is presentedinthiscasewitha
unique set of facts telating not onlyto geographybalsoto the geomor-
phblogyofthe sea-bedand the geologyof the subsoil.Thesephysicalfacts
are relevant to this case and relate both to the legal entitlement of the
Parties toareas of the continental shelf lyingbetween the Parties and to
the delimitation ofsuch areas between them. They bear directly on the

question of which areas of shelfdo, in fact, lie betweenthe Parties and,
hence, are relevant to the delimitation in the present case. ECONOMICAND OTHERCONSIDERATIONS
INTRODUCED BY MALTA

A. Fxonomicconsiderations

3.01 As wasobserved in the Introduction to this Counter-Mernorial,
the quite extraordinary emphasis placedoneconomicconsiderationsinthe
Maltese Memorial - though without relevanceto the question of conti-
nental shelf delimitation- requires Libya to deal with some of these

assertions of Malta in both their legal and their factual aspects.In ço
doing, Libya will draw the Court's attentionto what Libya regards as
misleading impressionsand errors of fact contained in this material put
forward by Malta.

1. Apportionmentof Natural Resources

3.02 11s )pite of the recent fîndingsof the Court in its 1982Judgment
that "economicconsiderationscannot betaken intoaccount forthe delimi-
tation of the continental shelf areas appertaining to each Party'", at the

very beginningofthe Maltese Memorial (paragraph 4) it is asserted that
this case iseallyabout "accessto natural resourcesnand that within the
limitedterritory of Malta "there are no natural resources whatever".This
theme of lack of natural resources recurs in various parts of the Maltese
Memorial, oftenlinked with statements regarding the relative economic

position of each State, a matter to which subsection 2 below will be
devoted. For example, in listing the "equitable principles and relevant
circumstancesof particular relevance" tothe presentcase, Malta states in
paragraph 234(f): "Economic considerationsareto be taken intoaccount
with particular reference to the absence of land-based energy sourcesin
Malta". The subject is givenspecialemphasisin paragraphs 224and 225

of Malta's Memorial, presumably to getaround the wordsof the Court in
paragraph 107of the 1982Judgment that economic considerations must
be ruled out of consideration because they are "variablesn subject to
"unpredictable national fortune or caiamity" and because a country
"might be poor today and become rich tomorrow as a resuliof an event

such as the discovery of a valuable economic resource~". For Malta
assertsinparagraphs 224and 225 that its lackofnatural resourcesis nota
variableand hencethat the Court's above-quoteddictum doesnotappiy to
the presentcase. As stated inparagraph224, the " ..absenceof oil, coal
and hydro-electric sourcesis not speculative but is a fact, a permanent
state of deprivationg".

'ContinrniaShcy (Tuniria/LibyoArab JarnohiriyIudgmcnr.I.C.I.Reports{982.
p. 77,para107.
'*Deprivationis relatitcrm. InMalta'ssensasTabk 7 facinp.68 belowrcvcals,
HongKong andSingaporemightbercgardd as "deprivcd".60 CONTINENTAL SHELF I581

3.03 There are a number of points to correct in this argument. First,
the analogyto the Fisheries Jurisdiction case in paragraph 225 is wrong

sincethat caseinvolvedneither a delimitation situationnorthe continental
shelf. Second, in the areas of continental shelfconstituting the Ragusa-
Malta Plateau to the north and eastof Malta there has beena renewal of

interestinthe lightofpromisingoilfindsmaderecentlybyltaly inthearea
abutting Sicily2. It isbyno meanscertain that Malta willbeperrnanently
deprivedof petroleum resources. Third, the Maltese statement that this

factor involvesan invariable is rather mppic and one-sided.The contin-
ued availability of petroleum resources toLibya is certainly a variable
factor. At the verytime that Libyawillbeexperiencinga rapid increasein

population, ils main economicresource--0i1--will be a rapidly diminish-
ing asset. Oil is a finite resource. It has been exploitedin Libya since

1961. Veryfewmajor newadditions to reserves have been discoveredin
the last decade. Most oilfields have passed their peak production3.
Libya's relianceon offshore productionin the continental shelf might

therefore be saidto be morecritical than that of Malta. whichhas a much
more variedeconomy. Fourrh, though Malta may lack on-land minera1
resources,itisnot withoutothernatural resources.Itsclimateand location

have led to a large, profitable touiist trade. Its location has led to
rewarding ship repair work.

2. General Economic Factors

3.04 Like the absence of natural resources. the poor-Malta, rich-
Libya theme permeates Malta's pleading. Since the court has socIearly
and so recently ruled out such a factor as a relevant circumstance in

'delimiting the continental shelf, Malta has turned to the AngleFrench
Arbitrarion for support. In paragraph 222of the Memorial of Malta it is
said, quoting from paragraphs 184, 185and 239 of the Decisionin that

case, that the "Court of Arbitration recognised the significanceof the
economic,as wellas the political,status of the Channel Islands".There is
validity to the point tha; the Court of Arbitration considered econornic

and political factors. The Court could notavoida full discussionof these
factorssincethe parties presented extensive evidence to it onthesesubjects
and they were discüssedal great length in the oral pleadingsbefore that

'FisheriesJurisdicrion(UnitKingdom v. Icelan.Merits. Judgment.1.C.J. Reports
1974.p. 3. No determinatioofcxctusiurighrswasin quation. Morcovcr. thecoasial
fishininvolvc(not a continentalshclfresourccinanyeven~)wasa resourccon whichthe
wastal Statc was highlydependcntandwhoscexploitatiwasof long standing.
PciroconsulianisS.AAnnuolRevicw 1979,Malia.January1980. p.5. A copyof this
pageis aitachedinDocumentoryAnnex 2.
'OC total world provenoil rtscrvcs, Libya posscssesa mere 3OPEC. Statis~ical
Bulletin.1981Vienna1982,p.9. A copyofthipage isaltachcdaDocumeniaryAnnex 6.1593 COLINTER-MEMORIA O F LIBYA 61

Court. These arguments had to be disposed of in the Court's Decision.
However, economic considerations ultimately werenot a factor that
played a role in that case'.

3.05 Butleavingthe lawto oneside,Malta alsohas the facts wrong.It
is necessary here, therefore, togive the Court a more completepicture

without going into too rnuch detail, even if these facts of comparative
economicsare not relevantcircumstances of the case.

3.06 There are deep differencesbetween the economies ofLibya and
Malta. It is only at the most superficial level that Libya appears to be
better placed than Malta, narnely in respect of Gross Domestic Product
("GDP") pethead of population2. Neither State can beclassifiedasPr.

Table 1 followingthis page comparing the Gross National Product per
head of Malta with other rniddle-incomeoil importing and exporting
countries makes the same point. By any standards Malta is among the
more prosperousdevelopingnations of the world.

3.07 It is not an exaggeration to indicate that in terms of econornic

structure Malta isconsiderablymoremature than Libya. Its composition
of production of goodsand servicesis quite diversifieds.This situation is
reflectedin the strong positionof the productivesectors in the economy,
accountingfor 45%of total GDP in 1979and 42% in1980.Libya,on the
contrary. has aneconomicstructure that isdorninatedbya singlesector -

oil. Eventhe mostoptimisticestimate showsthe oil sector accounting for
45.5%of GDP in1980, when the productivesectors wereresponsiblefor
only 5.7% of GDP, equivalent to5632 per head of population.

3.08 Despite the small surface area of Malta and the inhibitionson
agricultural output arising from limited supply of land and water, the
agricultural production per head of population there was valued at $117

against that of Libya at$218 in1980. In the caseof the rnostdynamicof
the elements makingupthe total industrialproductionofthe two States -
'In addition.asnotcdinpa4.35bclow,the Court'sanalysiswasrclatcdto thequestion of
thcsc islands'rights to continental shcownfvis-à-vFrance.
This crude masure apparently showsLibya withan inwmc per hcad of somc 58,450in
1981against $3,380for Malta. thoughassessrnentof nationalaCfoudtSin both countriesis
not cntirelyprecisc.GovtrnmcofMalia, EconomicSumcy 1981, EcanomicDivision.
Officofthe PrimeMinistcr,May 1982."BasicStatistics".Acopyoîthis pageisatiachcd in
Documcniory Annex 7.
'As theMalteseDpvr!optnentPhn 1981-1985.Malta, Guidclincsfor Prograrns.pointsout
alp. 1:
"Sincc the carlyfi..nationaltconomicpolichaveken consistcntlygcard
towardsthe long-tcrmdcuclopmcntgoofa ncwcconomicstructureThisprocc~a
has.onthe wholc.rcgistercd a considcrablcdegrec of succcsswhich has cvcnsur-
passcinitial expectat...he productivebaseofthe cconomy hasexpandcdwith
succcssfulswitch to commercial shiprcpairing."arge-scaletourisi industry anda
A copyof this page is attachcd as DocumeniaryAnnex8.62 CONTINENTAL SHELF [ml

manufacturingl- the output in Malta in 1980 was valued at $1 ,O13per
head against $229 in Libya. In respect of the large servicesectors repre-

sented in Malta and Libya there is a qualitative difierence to be noted.
Virtually al1the services in Libya are attributable indirectly to the oil
sector. Fcw servicesare of a commercialnature and al1are funded by the

State. In Malta, in complete contrast, commerciaI servicesare a major
area of activity. Approxirnately 41% of GDP in 1980 was generatd by
market servicesin Malta, mainly in the private secto?.

3.09 The comparativelymature structure of the Maltese economyas
comparedto the Libyaneconomyisfurther demonstrated by the distribu-
tionofthe labour forcein Malta. No lessthan 35%ofthe activeworkforce

in Malta was employed in agriculture, manufacturing, ship repair and
other privateindustriesin 1980.Total employment foragriculture, manu-
facturing industry and fisheriesin Libya in the same year accounted for

only 26%of al1actively employedpersons, of which approximately one-
third were non-Libyans.In general, Malta generates wealth and employ-
ment from industry, commercial services, tourism,agriculture and its

expatriate community. Libya has only oil and income frominvested oil
revenues.

3.10 Malta'sMernorialalsoignoresthe questionof population. Libya
is nowfacing high population growth. In the period from 1970-1979the
rate of growth of population averaged4.1% each year. The indigenous

population grew at 3.99, one of the highest rates of natural population
increaseintheworld.Thisrate isexpectedtocontinuewellinto the 19809,
In contrast, Malta bas a srnall population the rate of growth of which

appears to be in decline4. This rate has rarely gont above half of one
percent per yearin the last 25years.Somereturned immigrants have had
to be absorbed, though this has been ona very small scale and has been

balanced by out-migration over the period as a whole.
' WorldBank. World DnielopnzrnReport 1981. p. 139:'Manufacturingiprt of the
industriaslecior.bitsharc..typicalisthcmostdynamic partoftheindustrilactor."
A copyof this pageisattachcdaDavmentary Annrx 9.
'Governmenotf Malta.ErommicSurvey. EaonomicDivision.OffioftheRimc Ministcr.
Aug.1981.p. 7. A copyof this page isattachDocumentaryAnncx 7.Tourismplaysa
particularlimportantrolindevelopingthecommerciaclharactcrof tservicscctorin
Malta.withtheaddtdbonusthairnmttouristcarningsarctakcninforcign cxchanSec
Table2facing this page.
Secrctariatof Plannin.ripoliSummary oftheSocieEconomic Tramformaiion Plan
1981-1985,p54.A copyofthis pageisattachedaDocumenraryAnmx 10. Thecstimatcd
total populatnfLibya for198is3.4million.Thc1977Libyanpopulationwa2,939,200.
'METWALLM Y.,M.Sirucrureand PerformaoefrhcMulttseEconomyM, alta,Aquili&a
Co.1977,p.39.A copyof thispage isattaascDocumcnrarAnnrx II.1611 COUNTER-MEMORIAL OF LlBYA 63

3.11 The best canclusionto this subsectionwouldseemto be to repeat

what Libya saidon thissubjectin paragraph 6.88of the Libyan Memorial
in the present case,citing paragraphs 62 and 73 of the Judgrnent in the
TzrnisialLibyacase':

"lt may be ssuggeste dhat the irrelevance of such arguments
derivesnot only frorn the relative and variable nature of national
wealth butalsofromthe fact that suchconsiderations have nothing
whatever to do with the physical facts of prolongationof the land
territory into and under the sea and the geographic correlation

between landmass and sea-bedwhich is the basis af title".
3. Fishing

3.12 IIisevidentthat the Maltese Mernorialaccords fishingactivity a
major role in the present case and regards it as one of the "relevant .
circumstancesof particular relevance".In paragraph 234(h) it issaidthat
"the patterns and range of established fishing activityare to be given
weight as a relevant equitable consideration". The same sentiment is
expressed in the concludingparagraph 272 dealingwith the "principal

considerations justifying Malta's delimitation" (in subparagraph (rn)
thereof) in the followingterms: "The relevant equitable considerations
include...the range of established fishingactivit..."The mostcomplete
statement of Malta's position is perhapscontained in paragraph 231,
which is quoted belowin full:

"In viewespeciailyof the closelink existingin modern interna-
tional law between continental shelves and exclusive econornic
zones, factors which are relevant to the exploitatioof biological
resourcesmustbegivenweightasan equitableconsideration.Some

reference has already been made to the established patterns of
Maltese fisheriesstretching southwards to the equidistance line
and even beyond it."

3.13 Such statements whichare baseduponthe "patterns and rangeof
establishedfishingactivity"of Malta require an examinationof the facts.
Somefacts can be foundinparagraphs 4 1to 46 of the Maltese Memorial
including a description of the kannizzafi method of fishingand a brief
discussionof longline,bot:omlongliningand trawlinginregionsextending
beyond the Medina Bank.It is said that individual series of kannizzati

"rnay stretch overan extendeddistance and manyof them havefar some
yearsstretched as far as the equidistance line betweenMalta and Libya,
and even beyond". It isfurther said that this method stems from fishery
regulations dating back to 1909and hence is "of considerableantiquity"
and that this methodaccounts for as much as 40%of Malta's total catch.
Maps 4 and 5 in Volume IIIof the Maltese Mernorial are claimed to

'ContinentaShelf(Tunisia/iibyan Arab IamahiriyJudgmcni,I.C.J. Repor1982,
p.54.para.62and p. 61. par73.64 CONTINENTAL SHELF 1621

illustrate this method of fishinAs to longline fishing forswordfishand
tuna and bottom longlining and trawling for bottom fish, it is said in
paragraph 46 that the location of the fishingbanks is a closelyguarded
secretof individual fishermenbut that it has beengoingon inthe Medina

Bank and that trawling grounds "on the 100 and 200 fathorn linein the
southattract a sizeabfenumber ofcraft in the winter months".No indica-
tion ismade of the nationality of such craft. Map5 issaid to indicate the
areas where trawlingby Maltese fishermen takes place.

3.14 It must bestressedat the outset that this fishingbears norelation
to thecontinentalshell, thatthe fishinquestionare mobilespeciesand not
a continental shelf resource, and that the Maltese fishing activities
described mightonly have relevanceto any Exclusive EconomicZone of
Malta'. (To date, Malta has claimed no Exclusive EconomicZone but

has legislatedfor a 25-mile fishingone around the Maltese Islands mea-
sured from its base lines.) Thus the inescapable conclusionmust be that
Malta'sassertions quotedaboveas to its fishingactivitiesbeinga relevant
circurnstanceof the present caseare legallyinvalid.But itmay be instruc-

tivenot to leavethematter at this and to examinesorneof the actual facts
regarding Maltese fishing.

3.15 From a reading of the Maltese Memorial the impression rnay
have been formed that fishingis important to the Maltese economy,that

traditionally it has covereda considerableextent of the maritime regions
around Malta, and in particular the Medina Bank,and that those regions
(depicted on Malta's maps) have been fished exclusively by Maltese
fishermen and have traditionally been within their domain. If so, the
impressionis false.In fact, fishingismarginal tothe Malteseeconomyand

has alwaysbeenso. It isan activitythat today, despiterecent governrnent
and internationaleffortsto revitaliseit, is onthe decline.Furthermore, it is
still dominated by traditional inshore practices that make more distant
regions unattractive to most fishermen. More significantly,the modern
sectoroffishing isstillunderforeign controland the areas used byMaltese

fishermen are by no means confined to them, particularly in deep sea
fishing;the fishermenof other Mediterranean States haveal1traditionally
used the same grounds as Malta.

3.16 The role of fishingwithin Malta's economyis bestdemonstrated

by its contributionto Malta'sGDP as shownby Table3 facing this page,
whereagricultureand fisheries havebeen combined.Fishingprovideslas
'Sec.inthisconntction.para.1ûûof thc 1982Judgmcntof theCourtinthe Tunisio/tibya
cass(Cm1inentriShru (Tunisia/Uby~nArabJumuAiriyu).Jïdgmen~.I.C.J.Reports
1982,pp.73-74.para.100).The delimitanfthe continentaslhclfinthepresentcasedocs
notprejudgedelimitatoftheExclusiveEconom icone(orfishcryzone).SecalsoLibyan
Memorial, para.4.6whcrciwas notaithatMaltaopposcdinclusionf elimitatofthe
EEZ in theSpecialAgreement.1631 COUNTER-MEMORIAO LF LIBYA 65

than ten percent of the contribution made by agriculture and fisheries
together and no morethan one third of one percentto GDP1. It isclearly
marginal within the Maltese economy.

3.17 Evenmorestriking is the fact that fisherieshave beenmaintained
at a rnore'or less constant level for decades, despite the efforts made to
irnprovethe fishing fleet.particularlysince 1970.The landingsof fish,by

weight, from 1938 onwards, are shown on Table 4 facing the preceding
page. Until 1975,the shortfallinfreshfishwasmadeup byimports.These
have nowstopped,although the demands of the tourist trade still require
frozen fish imports which are as great as, if not greater than, local fresh
fish landings'. These facts must be seen against the backgroundof the

proposaisof the Maltese 1973-1980 DevelopmentPlan, which proposeci
major expansionsinfishing byencouragingmorecoastalfishingandcreat-
inga trawler-basedfishingfieet for deep-sea fishing.It alsoprovidedfor a
joint commercial companyto be founded withLibya, inthe hopethat this

wouldstimulatelocaldemandand productiona. Inaddition,ajoint fishing
company was established with Libya and special aid was offered to
fishermen'.

3.18 The same holdstrue whenthe sizeof the fishinglabour forceand

of Malta'sfishingfleetisconsidered.The relevantstatisticsare set forth in
Tables5 and 6.Although the figuresin the 1970s and 1980sappear to
suggest a growth in fishingpopulation numbers, the critical figures are
those for full time fishermenwhich haveconsiçtently fallen since the

Second WorldWar.The part timers in 1980-67% of the total-were also
occupied full time in employment ingovernment sectors or in private
industry.Veryfewwereinvolvedinagriculture inadditionto fishing - the
traditional combination in the past - and the split betweengovernment

and private sectors was almost equal, It is clear that part time fishingis
merely an income supplement. In fact, given the very low per capita
consumption of fresh fish landed in Malta - 4 kilograms per person
annually - it would be dificult for part time fishingto be anything else.

'In fact.of the total contributions from agurdFishcricst.he totalsala valueof
fishcrisi1981contributejusEM onemillion.The1980figureswerccornparac. 1979
fishingcontribuEtMcd54,57a0ndin1976thefigurewasSM915.28 2utofan agriculture
andfishcricstotalEM9.6 million. DepartmotInformation. alraHandbmk.Govern-
mentPress(1981), p. 84;MaltHandbook, GovcrnmenP t re(1977). p125. A cnpy of
thac pagesisattachcdas DocumentarAnnex 12.
'EconorniDc ivision,OfficoefthePrimeMinisttr.Malta.Guidelinefsor Progress(Develop
mentPlan1981-1985),Govcrnment Pres(sValletta),1981.p. 149.A ropy of thisisge
akeloprneni Planfor Matra 1973-1980,Supplemen, fficeothePrimeMinistcr,p.71.
A mpy of thispageisattachcdas DocumentarAnnexII.
'Malta Handbook.1981.op. cir., 8'4A copyof the agreementestablishinga fishing
companyktwcen Libya andMaltais attachcdasDorumentoryAntux 15. A copy of the
agreementrtferringtoa joinIishinventurebttweenthe iwocountria is attachas
DDCumcnlaryAnmx 16.66 CONT~NENTALSHELF [641

3.19 A similar conclusionarises from a considerationof the numbers
of boats involvedin the Maltese fishingAeetalso illustrated by Table 6.
This showsthat, despite al1the efforts of the Maltese Government, the
fieetcontinuesto be dominated by small openinshorefishingboats under

12 metres in length. Trawling or motorised fishing boatsare a srnall
rninority.The situation is little differentfromthat describeby'Burdonin
1954,when he remarked that the Medina Bank could only be used for
trawling butthere wereonlyfour boats capableof trawling there and that
the 800 fishermenthen engaged in Maltese fishingactivity were limited,

bytheir equipment and training,to inshorefishing,not evenbeingable to
reach Lampedusa'. As late as 1970,an FA0 report on fishingin Malta
reported that Maltese deep sea fishing was-dominated by foreign
fishermen andthe produce was sold, by preference, to SicilyP.

3.20 The minor importance of fishing withinthe economicand social
lifof Malta isreflectedinthe extentof Maltesefishingand the locationof
the fishinggrounds. Until very recently the Medina Bank was out of

range toal1boats exceptthoseover 18metres in length,and in 1982there
were only 19 such vessels: sixtrawlers and thirteen motorised fishing
vessels.In any case, onlyone-fifthof the total catch was obtained during
the wintera,sothat the winter fishingreferred to inthe Mernorialof Malta

is of minor importance. In fact,'60% of al1boats can only beused for
inshore fishing and the rnost intensivelyfished areas lie within the 50
fathom line. Eventhe long-range kannizzati sitestend to be limitedto 40
milesoffthe Maltese Coast,whilelongliningisusually limitedto 40 miles
offshore and lampara fishing to five miles offshore. Thus the clairned

maximum extent of fishing of 150 miles has little relevance to either
traditional fishingpractices or the practices of the contemporary indus-
tries.ln any case, the long distance fishing rnentionedin the Maltese
Memorialisoften undertaken by foreign crews workingout of Malta who

may not even seIl their catch there, but in Sicily4.
3.21 The locationof fishinggroundsshowsa similar pattern of close-
ness to Malta and division between Maltese and foreign fishermen.

Maltesefisherrnentend toconcentrate onfishinggroundsto the north and
east of Malta and to the coastalareas closetothe Zurrieq, Marsalokkand
Marsalforn sectors- whichthey share with Italian fishermen.The more
distant grounds - around Pantelleria, Lampedusa, the MedinaBankand

to thesouth of Malta - are the almost exclusivepreserveof non-Maltese
fishermen. Forthe Maltese,the most usual non-coastalfishingareas lieto
the northeastof the Maltese Islands,at the Hurd Bankand Sikka 1-Badja,

1954,p.9.ALcopyof this pageisattachcdahummtarylta,Annrxn17.tPrintingOffice,
RrporitotheGovernmcnfof Maltaon FishrrirDevrlopmcnfF.A.O.. Rame,1970.TA
2899.A copy ofthe relevantpage is attaasDocumcntary Annrx 18.
'Molto Hondbwk, 981,op. ritp. 84.
'F.A.O.,op. cil1970.[65] COUNTER-MEMORIAL OF LIBYA 67

just to the north ofGozo. The only recenrdevelopmentthat has altered
this.pattern is that trawling now occasionally takes place around the
Medina Bankand Lampedusa, a fishingactivity eiigagedin by fishermen
of a number of Mediterranean countries.

3.22 The relativeimportanceofinshorefishingto Malta isernphasised

bythe verystrict controlexercised by the Maltesecoastal authoritiesover
the area claimed as an exclusive zone.Since 1966, thiç zone has extended
from 3nautical milesoffshoreta 12milesin 1971,20milesin 1975and 25
milesin 1978. Although Maltesepatrol craft do occasionallyrangeas far
afieldas the MedinaBank, this isonlyaspart of navigationaltraining,and

anyarrests carried outbeyondthe exclusivelimitare performedunderthe
provisionsof international law and are related to pollutionoffences,no1
fishing.

3.23 Giventhe marginal character of Maltese fishing,it is instructive
toconsider fishing practices in Libya - whcre, until recently, ftshing
representeda resourcethat had been largelyignored.Unlike the Maltese

example,fishingin Libyahas showna steady progression eversince 1951'.
In addition, therehas been a conscious effort to increase the size of the
Libyan fishingpopulation2.

3.24 The increase in landings also relates to the increase in modern
fishing techniques, introduced through a series of gove;nment-based
investment initiatives and jointventureswitha number ofStates including

Tunisia andGreeces. In fact, considerableinvestment is to be made in
fishing over the next decade to ensure that Libya has a compact and
efficientfishingindustry, capableof exploiting the waters of the Central
Mediterranean by the end of the century.

4. Malta's Status as an "Island DevelopingCountry"

3.25 From the lengthytreatrnent given"the requirementsof Malta as
an islanddevelopingcountryminthe Maltese ~emarial, itisapparent that
this factor alsoconstitutes a significant element in Malta's case. The

paragraphçprincipallydealingwiththissubjectare paragraphs 226to 230
which take up almost four pages of the Mernorial, a far more extensive
coveragethan was accorded the facts relatingto geographyand the sea-
bed andsubsoilofthe continentalshelf, forexample.In paragraph 234(g)

'Fromcatchesofbctween2,Oûûand3.000tonnesinthe 1950ihasriscnto3,50tonnesin
the 19605and4,000 to 5.000tonnesinthc 19Itis proposcdto rcacha levelof ktween
8,000and 12.000ionncs by 1995. ANDERSON,E. W. and BLAKEG, .H.. "TheLibyan
FishingIndustry",in (cd,) ALLAN,J.A.. LsinceIndependence. room Helm, 1982,
pp.73,74, 76. A copyof thesepagesis attachedas DocumentoryAnnex 19. See also the
discussion ofLibyanfishingin the LibynnCounier-Mernoriailn the Tunisio/Libyacase.
TFrom 500in 1973,io800i1915andancsiimaicd1.2W in 1981Ofihem.morethan rwo-
thirds arcLibyan nationals.
'ANDERSON AND BLAKE ,p. ci!,,p. 76.68 CONTINENTAL SHELF 1661

of the Maltese Mernorial it is said that Malta's status as a developing
islandcountry is a "further relevantconsideration, relatedto the absence
of land-based energy resources in Malta, especiallyin view ofthe abun-
dance of such resources available to Libya ..."And in summarising the
principalconsiderationsjustifying Malta's delimitation in paragraph 272
there is included in subparagraph (m) the staternent that the "relevant

equitableconsiderationsinclude ...the requirementsof Malta as an island
developingcountry ...".
3.26 After a reviewofthe variousstudies,deciarationsand resolutions
overthe past decaderecognisingthe specialcategoryof"island developing
country" - a rather selectivereview it rnust be said as will be dernon-
strated below- the Maltese Mernorial in paragraph 230concludes with

this rather inspirational message to the Court:
"ln the context of continental shelf delimitation, the absence of
land-based resources,coupledwiththe presenceof petroleuminthe
area in issue,providessubstantialjustification forthe viewthat the
developrnentrequirementsofMalta constitutean equitableconsid-

eration or factor to be given weightin the delimitation of the shelf
areas dividing Malta and Libya. The Government of Malta is
confident that the Court, as the principal judicial organ of the
United Nations,willreadily recognizethe relevanceofthe practice
of the organsof the United Nations and of the Mernber States in
relation to island developing countries."
3.27 Before proceeding to take a detailed look at the documents

referred toby Malta - and those no1mentioned - as wellas the facts
bearingon Malta'sstatus, it isimportant toaddressthe abovestaternentof
Malta head on.The preamble to the United Nations Convention onthe
Lawofthe Sea doesindeedtake noteof"the specialinterests andneedsof
developingcountries, whether coastalor land-locked"but not of "island
developing countries".Although certain categories of States are sing1ed
out in the provisionsof the Convention - such as land-locked States,
States borderingenclosedorsemi-enclosedseasand archipelagicStates -
nowhere is any mention made of "island deveioping countries".Nor is
there, to Libya's knowledgea ,ny indication in the rravauxpréparatoires

ofthe Conventionthat any specialstatus or rights weresought for "island
developing countries".(If there were, the case against anysuch status in
connection withrights relating to the law of the seawouldbe even more
conclusive,if that ispossibleinview ofthe absenceofany mentionof this
categoryin the text of the Convention.) It is,hus, hardly appropriate for
Malta to cal1 on the Court to recognise a factor that, in spite of its
recognitionin various resolutionsof the United Nations and its organs in
particular contexts,was not givenany recognitionin the United Nations
Convention on the Law of the Sea adopted in 1982. In the very legal
context in whichthis case is beforethe Court - the lawof the sea - the COUNTER-MEMORIAL OF LIBYA 69

member nationsof the United Nations adoptedby a very large majority a
Convention anddid not include any special recognitionof island develop-

ing countries. It is suggestedthat this is the important relevant factto be
brought to theattention of the Court asthe principal judicialorgan of the
United Nations.
3.28 In addition, although the Convention clearly hadin mind the

situation of disadvantagedStates in providingfor the "Area" which, with
itsresources,isdeclaredto bethe "commonheritage of rnankind", it made
nospecialprovisionforvariouscategoriesofStates either in the "Area" or
in the other régimesprovidedfor - such as the continental shelfand the
exclusiveeconomiczone - excepiasspecificallyrecognisedin iheArticles
ofthe Convention.It is,therefore,quitesurprisingto findMalta askingthe
Court to do what an overwhelmingmajority of the member nationsof the

United Nations did not do in adopting provisionsdirectly related to the
subject rnatter before the Court in the present case.
3.29 It is now appropriate to examine the other documents cited by
Malta in its Memorial andin Annex 68 thereto. What Malta has done in

its discussionof United Nations resolutionsand referencesto the wark of
the United Nations Conferenceon Trade and Development(UNCTAD)
isto be selective:forexample,the UNCTAD Resolution65 (111)of 1972,
one of the first international instruments to recognisea specialstatus for
island developingcountries,ismentioned',but itsprovisionsare notstated.
Indeed,this Resolutionin its prcamble indicatesthe main concernswhich
led to the recognition of sucha category of States:

"Recognisingthal the developing islandcountries face special
problems linked to their geographical nature such as, among
others, major difficultiesin respect of transport and cornmunica-
tions with nejghbouring countries and the distance from market

centres,and are seriously hampered in their economic develop-
ment, and that studies are needed in respect of these developing
island countries whichsliouldtake hlly into account overall pros-
pects for, as well as existing levelsof, developme...".

The Resolution called for the appointment of a panel of experts to-
"...identify and studythe particular problemsof thesecountries
and to make recornrnendationsthereon, giving specialattention to

the developing islandcountries which are facing major dificulties
in respect of transport and communications with neighbouring
countries as well as structural difficulties,and which are remote
from major market centres, and also taking into account overall
prospectsfor, as wollas existing levelsof, development".

It is evident that Malta is not faced with these kinds of problems.
MalteseMemorial.para228(i) Thctcxt isnot to beroundin the Maltcsc Annexes.70 CONTINENTALSHELF [68]

3.30 Resolution 65 (111) set the tone for what was to follow. The

expert study called for in Resolution65 (III) is onlycited in the Maltese
Mernorial for the propositionthat Malta is "smali in territory and very
small in terms of populationL". Yet,this study wasverydetailed and was
accompanied by fivegeneral tables and a statistical annex of 17 tables.
What thesetablesshowisthat Malta'ssituationdoesnot correspondat al1
to that for whichthe special categoryof developing islandciuntry was

created'

3.31 Another exampleof the incornpletepicture given by Malta is to
be found in Chapter II1 of DocumentTD/191 of UNCTADa,referred to
inAnnex 68(ii) ofthe Maltese Mernorial.ThisChapter deals with special
measures for island developingcountrieswhichare geographicallydisad-
vantaged. This very characterisation hardly fi&- Malta's geographical
locationcannot be regarded as a disadvantage. Listed in Chapter 111 are

situations where special measuresneed to be considered for such islands.
They include, for example, islands far away from international traffic
routesand whereexteriorcommunicationsare difficult;wherethe develop-
ment of air servicehas beenneglectedand where it might be usedto spur
tourism;and where exposureto natural catastrophies is a particular prob-

lem. It is hard to see how Malta fits into these categories. The speciai
measures envisaged in favour of geographically disadvantaged island
developingcountriesessentially concernedthe small, poor,isolated island
States in the PacificOcean.

3.32 All pertinent tables to that document are not cited, although
Table 23,whichlists Malta as smallinterms of territory andvery smallin
terms of population, is annexed to the Maltese Memorial4and cited in
footnote 2 to paragraph 227. However,the attention of the Court is not

drawn to the fact thatMalta isclassifiedthere amongthe islands withthe
highest G.N.P. per capita. Nevertheless, it is apparent that Maita has
derivedsubstantial benefit from its classificationas an island developing
country. The Report of the Secretary-General to UNCTAD of 28 June
1977containsan annex showingthe extensiveassistancegivento Malta in

connectionwith developrnentof port and ship repair faciiitiesand fishing,
the latter arnounting to$738,40V.

3.33 Butthe major factualpointto bemadehere isthat, though Malta
hasclaimedand receivesspecialtreatment and assistancefromthe United
'MaIrescMemorial.para.228(i).
DrvclopingIslandCountriU.N.Doc f.D/B/443fRw.1, 1974. Acopyofthcsctablesis
attachcdas DocumcntaAnnrx 20. Of specialintcrcstarc.forinstance, TableV showing
Maltawith 14.7doclorpcr 10.000inhabitantsandTableVllI showing thatof Malta's
exports,clothicomprise23.8%.textiles14.4%andrubbcrarticlcs9.3%.
'Report by the UNCTAD Sccrctariat.U.Doc. TD/19I, 6 January1976.
'MalreseMemorial.Anncx68.
'U.N.Dac. A/32/126,28 June 1977, annex t. 9. A copyofthis pageis attachedas
DocumentaryAnnex 21.~91 CouNTER-MEMoRIAL OF LIBYA 71

Nations and UNCTAD as an island developingcountry, Malta is not a
poor islandin the traditional meaningof the term. Its economycannot be
compared with islands such as Haiti, Sri Lanka or Madagascar. The

pertinent analogies are with much better off islandssuch as Hong Kong
and Singapore. This is shownby Table 7 facing the preceding page.

3.34 Malta is also clearly differentiated from the islandeconornies
where specialprovisionisjustifiably made for special economictreatment.
Whereas such islands often have single commodity ecanomied sependent
on crops such as sugar, tea or tropical rawmaterials, Malta, as shown
earlier, bas a diversified economy basedon its manufacturing industry,
ship repair, tourism and commercial services. Unlike almost al1other
islandStates mentionedabove,Malta has noworsening populationprob-
lem.The internationalisationof the Maltese economyappliesto al1sectors

ofactivityand not to singleprirnarycommoditiesasin mostother develop
ing island countries. Malta does face genuine problemsin stimulating
consistent levelsof economicdevelopment, but these are diferent by a
large rneasurefrornthoseof the poorerStates and wouldseemto preclude
Malta on any rational grounds from claiming the protection of any
notional concessionsdue from the international community tothe really
poordevelopingcountriesof the world, someof whichare islands.In any

event, none of this can affect delimitation of the continental shelf.
B. Other Considerations

3.35 As in the caseof econornicconsiderations,the Maltese Memorial
has introduced other factors which are not relevant to the present case.
However, here too, the lawand the facts relating to these points must be

addressed by Libya inthisCounter-Mernoria ald, where necessary,put
straight. It is also noted that there exists close tie in the Maltese
Memorial between the elements of national security and neutrality even
though they are dealt with separately below.

1. TheElement of NationalSecurity

3.36 In its list of alleged relevantcircumstances Malta includes the
following(paragraph 234(i)): "The elementof national securityinvolved
in control of the adjacent subrnarine areas also constitutes a relevant
consideration". ln paragraph 272(m) it is referred toas the "elernent of
national security inmaintaining control of adjacent submarine areas,a
consideration the importance of which is enhanced by Malta's status of
neutrality".Although it is difficult tolocate withcertainty every mention

of security considerations in theMaltese Mernorial, the matter is also
dealt with in paragraphs 143 to 149and in paragraph 232. In the first
group of paragraphs it is tied to the claimed "legal relevance of the
political status of islands" and the "position of the1andState". (The
matter of the lack of relevanceof the political status of an island in the72 CONTINENTAL SHELF C701

case of delimitation of the continental shelf is taken up in subsection 3
below.) However,Malta then proceeds tomake the followingmiscellane-

ous but unrelated points: '

- paragraph 73 of the Judgment in the Tunisia/Libyacase
isquotedin fullto establish:"The connection between the
sovereigntyof the coastal State overits land territory and
its rights in respect of the shelf';.

- relyingin part on the AegeanSea ContinentalSheycase

and the Rann of Kufch Arbitration, it is suggested that
the "positionofthe isiandState isoneof particular sensi-
tivity"and that the "legalinteractionof landterritory and
sovereignrightsoversubmarineareas ismuch morecriti-
cal than it is for most other coastal States"';

- then the allegedparallet betweencoastal fisheriesin adja-

cent waters (not a continental shelf resource) and
Maltais interest inthe "prospectofpetroleum resourcesof
the appurtenant shelf areas".is drawn;

- finally (paragraph 149), there appears the following
assertion:

"In this litigation Malta is seeking the legal affirmation and
protection of important aspects of her national patrimony and in

particular the sovereignrights to govern, manage, exploitand con-
serve the resources of appurtenant shelf areas. The method of
equidistanceprovides adelimitationwhich givesappropriate recog-
nition of the need for an adequate politicalcontrol, both as to the
quality and extent of such control, by the islandState of Malta in

respectof adjacent submarine areas. The CoastofanyState gener-
atesappurtenant zonesofmaritimejurisdiction.The distancecrite-
rion, which is prominent in recent sourcesof the law of maritime
delimitation,isa reflectionof the rule that al1coastal States havea
lateral reach of jurisdiction. Such an apron of jurisdiction is a
necessaryattribute of national security.The equidistance method

thusgiveseffectto the logicthat Malta'sneed for çecurityisnoless
than that of Libya."

3.37 The "apron ofjurisdiction" must havebeenconsidereda winning
phrase: it reappears in paragraph 232 where the following assertions
appear, quoted in full - a sort of hodgepodgeof points:

'At this point (par147).the absenceof naturalrcsourccsrcappears:"Moreover.the
relationshipwiththeappurtenshelfarcashasan enhancedsignificanciencaseslikcthat
passible locatofthe rcsources."bascd resources e inimaland the shcistheonly "The apron of jurisdiction which a coastal State has over adja-
cent submarine areas constitutes a necessaryattribute of national
security, The importance of the exerciseof political authority by
the coastal State has been emphasized already in this Memorial

and it only remains forMalta to point out that security interests
forma relevantwnsideration forpurposesof an quitable delimita-
tion of appurtenant shelf areas. For purposes of control and the
maintenance of security, Malta has a need for a lateral reach of
control fromits coastline whichcannot be lessthan that of Libya.
Moreover, theimportance of this consideration is increased sub-
stantially as a consequenceof Malta'sstatus of neutrality. It is, of

course, obviousthat the need for security, reflected in the lateral
reach ofjurisdiction,bears norelation tothe (engthofthe coastsof
the particular State'."

3.38 We find in al1 of this some colourful phrases - but no facts.
Moreover,it is evident that alleged considerationsof 'national security"
are yet another device to deflect attention from the physical factors of
geographyandgeomorphoiogy.It evenseernsfromthe abovequotationsto
be the view of Matta that an island State may be in a preferred position.

3.39 In its Memorial, Libya dealt with the possibility that security
interestsmight to a limitedextent berelevantinaiase ofcontinentalshelf
delimitation (see paragraphs 6.77 and 6.78) cjling the Decisionin the
Anglo-French Arbitration. Butinthat caseit wasmade clear inparagraph
188 that security interests "may support and strengthen, but theycannot

negative,anyconclusionsthat are slready indicated by the geographical,
politicaland legalcircumstances ofthe region ..."Thus, it was concluded
inthat casethat securityinterestsplayeda secondary,supportingroleand
not one tooverruleoroutweighthe relevantcircumstancesof the case.The
dificulty with the assertions of Malta in this respect is that they are set
forth devoidof any factual support. In1978, Malta establishedby legisla-
tion the extensionof its territorial waters to 12nautical miles.the exten-

sionof its contiguouszone to 24 milesand the extensionof its contiguous
fishing zone to 25 nautical miles, al1measured from its baselines (see
paragraph 4.10 of the Libyan Memorial). But in its Memorial Malta
nowhereestablishesfactually a need for the assertionof security interests
in the continental shev Bearing in mind that it is not the column of
water-which is the primary concernof the Exclusive EconornicZone -
that is before the Court in this caseP,what facts justify the statement
quotedabovethat "Malta basa needfor a lateral reach ofcontrolfrom its

coastline which cannot be less than that of Libya"? The above-quoted
statement of Malta is unsupported factually. There is no evidence put
'[Footnotcsdclctcd.]
'It willbcrecalledtit wasMalta'swishthat thedisputewnfincdtothecontinental
shclf.Sec fn.at p62, above.74 CONTINENTAL SHELF (721

forward by Malta regarding the control implicitly exercised by Malta in

areas overwhichthis "apron ofjurisdiction" isailegedto extend. It has no
relevance to the continental shelf. It presupposes equidistance in every
case. It ignores the relevant coastsof the Parties and the areas of shelf

appertaining to such coastsl.
3.40 Asforthe suggestionthat Malta'soeutralitystatus reinforcesthe
extent of its security interests, it would appear that this status should

Iessenits security and defence interests. However,this aspect of Maita's
case leads tothe next subsection.

2. Malta'sNeutrality

3.41 A wholechapter has been devoted in the Maltese Mernorial to
Malta's neutrality, although the chapter consistsof but three paragraphs
appearingonone pageP. Giventhis emphasis, it is teasonable toconclude
that neutrality is a factor whichMaltaconsiders to be of major signifi-
canceinthe present case. Moreoverit islistedinparagraph 272(m) asone
ofthe "principal considerationsjustifying Malta'sdelimitation". Asa non-

alignedState, Libya admires and supports Malta's neutral policy. How-
ever, it cannot agree that it has any legal significancein connection with
this delimitation. In addition, sorne of the factual statements made by
Malta in its Memorial in this respect require correction, a task which
Libyaapproacheswithreluctance,and solelybecauseit regards it tobe its

duty to inform the Court of the correct facts.

3.42 The central thesis of Malta's assertions regarding neutrality is
that asa result of adopting this status it has placed itself in a disadvanta-

geous economicpositionwhich, presumably, shouid be recognisedbythe
Court in the present case and compensated for in its Judgment. In this
sense,it isa point closelytied to thoseconsideralions coveredin SectionA
of this Chapter relating to lack of natural resources and comparative

economics.But beyondthat, theçe assertionsare not factually valid. Nor
has neutrality ever been givenrecognition in law as a factor relevant to
delimitation of the continental shelf. It is not necessary,either, to ernbel-

lishthe obviouspoint that this act of Malta3created no specialrights for *
Malta in respect to the continental shelf. No such act gives rise to any
international right or obligationto be compensated.

'Maltafailsto mentioncertain lacisthai couldbcar onsccurityconsidcrations. Forexample,
itsmajorciticsand portsare locatcdonthe northcrncoastofMalta facingSicily.It isalsoto
overlwks the importanceto Libya ofsecurity considcrations,an irnportanccundcrlincd by
Libya'extensivecaasialcngth frontingan the Mediterraocan afongwhich ils majar ciiics
and petroleum iacilitiesarc tmted.
'MulieseMernorial,p.22;sec also para. 232.
'To datc. Italy, the Soviet Union and France have givcn formal recognitionor support to
Malta's ncutral status.[T3] COUNTER-MEMORIAL OF LIBYA 75

3.43 Of particular relevanceto Malta'sneutral status, inthe economic
context in whichit has been placed by Malta, is the neutrality agreement

entered intowith Italy in 1981whichguaranteed Malta $60millionovera
five-year periodat $12 million a year; concessionaryfinancial credits of
115millionunder the terms of Italian Law 38 of 1979;and credits of $4
million annually for joint Italo-Maltese projects under the provisionsof
the samelaw - a totaof$95 million oveTthe five-ycarp~iod. Thus it is
apparent that Maltais approach to neutrality has had its practical aspect.
Malta quiteevidentlydidnot,at the timeofthe Italian agreement, view its

neutrality as creating an economic disadvantage.
3.44 Neutrality has brought various positivebenefits to Malta. Not
only hasthe dockyardoperated at aprofitsincethe mid-1970sand under-
gone considerable development - although it bas lost al1 military
work-it is now capable of bidding successfullyagainst iniernaiionally

renowned shipyards. To take one example, in May 1983 the yard
obtainedan order to refit theCunard Countessdespitemassiveopposition
from British shipbuilders.The contractwas worth U.K. E2.2millionand
had to becompleted within44days - Britishyards couldonlyofiera 60-
day completion period.

3. Malta'sPoliticalSta*
3.45 It is evident that in its Memorial Malta attaches considerable
importance to the fact that it isnot just an island butan islandState.The
heading of Chapter VI is: "Malta's Entitlement as an Island State".
Although the ensuingdiscussionof that Chapter may seem tointermingle

the entitlementof islandsand islandsStates- and todealat considerable
length with the propositionthatMalta's status as an island State should
notdepriveitofrightsavailableto othercoastalStates - neverthelessitis
clear from the Memorial as a whole that Malta accords special signifi-
canceto its politicalstatus and regards it to aerelevantcircumstanceof
the presentcase. Ifthere beanydoubtsas to Malta'sassertionsof a special
daim asan islandState inthe light ofthe rather confusedtreatment of the
çubjectin Chapter VI, then paragraphs 220,234(d), 266and 272(i) and

(p),interalia, willdispelthem. Libya, onthe other hand, doesnot regard
Malta'spolitical status as relevant eitherta modify, alter, increase; or
decrease any rightç to areas of continental sheitmay haveas a coastal
State.
3.46 International lawis indifferent tothe politicalstatus of an island

orgroupof islandsinsofar ascontinental shelfentitlement isconcerned or
asa relevantcircumstancein the delimitationof areas ofcontinentalshelf.
An islandState doesnot constitute a particular legalcategory in interna-
tionallaw givingrise toa specificlegal régimeT. his can be illustratein
the jurisprudence and in the developmentof conventional law,matters
which willbe taken up in the next Chapter. CONTINENTAL SHELFENTITLEMEW AND DELIMITATION

Introduction

4.01 To accept Malta'sclaiminthe present casewould beto acceptthe
conclusionthat an island - and in particuiar an island State - has, in
principle, continental shelf rights up to the median line vis-à-vis anp
oppositemainlandState, regardlessof the physicalfactorssuchasthe size.
locationor lengthofthe coastlineofeither theisland orthe mainlandState
facing the area of shelf to be delimited. The legal arguments which

Malta'sMemorialadvancesinsupportofitsclaimare at variancewith the
basic legal elementsofcontinental shelfdelimitation as recognisedby the
Court'. The main misconceptionsthat appear invariousplacesinthe iine
of argument in the Maltese Memorial may be summarised as follows:

(i) The Maltese Memorial continually confusesentitlement to
continental shelf rights and delimitation:

(ii) Malta's Memorial erroneously assumes, that a limited
number of controlling pointson its coast- or evenonlyone
such point - generate continental shelf rights in the area
whichfalls to be delimited between Malta and Libya. while,

in reality.t is the coast from whichthe land territory of the
States continuesintoand under the seawhichis "the decisive
factor fortitle to submarine areas adjacent to itP":

(iii) Malta misapplies to the specific geographical situation
between Malta and Libya the dictum of the Court that
between opposite coaststhe median line willeffectan equal
(and henceequitable) divisionof the continental shelf area
between thetwo coasts, inasmuchas the Court in its dictum
evidently contemplated two coastlines of comparablelerigth

'facing each other;
(iv) Malta ignoresthe fact that the overridingaim of continental

shelf delimitations is to reach an equitable result in accord-
ance with equitable principles that takes account of al1the
relevant factors and circumstances; and in so doing Malta
disregardsthephysicalfactorsofgeography. geomorphology
and geologyrelevant to the presentcase whichlimit Malta's

'Asthe next Chaptcdrcmonstratc, altaclaimisalsonotsupportcdby'Statcpractice*
as thereidiscusse(sceChaptcr5.ScctionC.bclow).
'ConrineniaShelf (Tunisia/LibyanArab JarnahiriyJudgme~i. I.C.J.Reports 1982.
p.61,para.73. CONTINENTAL SHELF i781

continentalsheifentitlement,aswellasthe relationship - in
particular thecomparativelengths - of the respectivecoasts

of Malta and Libya which facethe relevant area, factors
which must be taken into account in order to achieve an
equitable result; and

(v) Malta's Memorial asserts a privileged position for island
States - and in particular developing islandStates - in
continental shelf delimitation, although there is neither pre-
cedent nor legal basisfor such a claim.

To some extent these assertions havebeen dealt with in Part 1of this
Counter-Memorial. To the extent that these assertionspurport to have a
basisin law,they willbedealt with below.However, itisappropriate first
to deal with the manner in which Malta has injected the "principle of
equalityof States" intoits argument inan effortto support its medianline
claim.

4.02 A subsectionofChapter VIof the Maltese Memorialisdevotedto
the principleof equality of States1.It is there asserted that this p~inciple
supports the "legal validityof the median linenin delimiting appurtenant

shelfareas in the present case.This propositionis not, however,expressly
repeated in paragraphs 234 and 272 of the Maltese Memorial which
contain the Maltese conclusions.

4.03 Ttisnecessarytodraw the Court'sattention tothe categoricaland
yet ambiguous manner in which this contention of Malta is advanced
without anyattempt to support or clarify it. In this regard, paragraph i50
of the Maltese Memorial inits entirety is of particular interest:

"The legal validityof the median lineas the delimitation of appur-
tenant shelf areas in the present case is supported both by the
equitable principleswhichconstitute the law of shelf delimitation
and also by the principle of the equality of States (as a general
principleof international law). Given the simple coastal relation-
ships of Malta and Libya, an encroochmentnorthwardof the

medianlinewouldinvolveanafiont to theprincipleof the equal-
ityof Stores and. in particular,of coasralState.?."
4.04 It is incontestable that the equality of States isa fundamental

principle of international law. But this principle has alwaysbeen under-
stoodto meanthat States benefitfrom their king equal under the lawand
that the principlesand rules of international laware to beapplied equally
and without discriminationto a11States, whether large or small, whether

Article2, pa1,of theCharterof theUnitedNationsandnatinArtic2.para.2, asthecd
Malicsc Mernorialindicatcd.
' [Italicsaddeci.]No supportor reasonis oKcrcdby Maltawhymus1sbcso.i791 COUNTER-MEMORIO AFLLIBYA 81

insular or continental. To quotc a learned legal scholar, Edwin DeWitt
Dickinson: "Equal protection of the law or equality before the law is

essential to any legal systeml."At the Second Hague Peace Conference,
1907, the first French delegate, Léon Bourgeoiss ,tated that each nation
had, "whether small or great, weakor powerful,an equal clairnto respect
for itsrights, an equal obligation inthe performance of its dutiesP".

4.05 More recently, and perhaps in more explicit fashion, Professor
Reuter in hislecturesat the Academyof International Lawin The.Hague
has stated the significanceof this principlef When the United Nations
Charter refers in Article 2, paragraph 1,ta the "sovereignequality" of

States, it is referring to the commonattribute of al1States as sovereign
entities-despite the obviousdifferencesbetweencountries - asthe basis
ofequality, Theapplicationof the principlein the present case meansthat
Malta - just as any other State - has rights to the continental shelf
adjacent toits coastwithout prejudgingeither the respectiveareas belong-

ingto eachofthe Parties or the methodsofdelimitationto beemployed.It
cannot beused as a justification for neglectingfactors or conditionsthat
are relevant to the application of the principlesand rules of international
lawwhichgoverncontinental shelfdelimitations,or for cornpenîatingfor

geographical, economic,or other disadvantages.

4.06 However,it isdifficultro ascertain whether the Maltese Memo-
rial isreferring tothe principleofequalityofStates initsacceptedsenseor
not. If it is, then iis clearlya non sequirur to argue that it supports a

medianlineor any other particular solutionin the present case. For,since
al1States are equal, al1delimitations would have to be efiected by the
median or equidistance line. If, on the olher hand, Malta is arguing that
this principlemeans that Malta has a right to an area of continental shelf

qua1 to that of Libya, then it hasdeformedthe rneaningoftheprincipleof
equality, and in çodoing is presented witha paradox.

4.07 To Say that because the two Parties as States are equal and,
therefore, should have identical areas of shelf attributed to them is a

conceptionthat is clearlycontrary to that firmlyenunciated by the Court
that a delimitation is not a sharing a-d that geog-aph- i- -ot to be
'DICKINSON E.D.,TheEquali~ofStnm inInternationalLaw,Harvard, Oxford Univer-
sityPrcss1920, p.4. A copyof thi~gc isattachcdin DoeumentoryAnnex22.
'~uotcdby DICKINSON, op:cit..p3. BOURGEOI LS,~cuxitmcConférencd eela
Paix,LaHaye, 1907,II88. Acopyofthis pageisalsoatiachedihmentary Annrx 22.
*"L'igalit6semblaupremicrabordplus solideencorequelasouvcrain. llcposen effet
que lesrbglesgtnéralsedroitinternationl ublicsontformulés'unemanière abstraite
pour tws IcsEtatsanscaFsid6ationde leurcaract6ristiqucarticulière."EUTER P...
Principede DroitInternatio~Public,Recueil des CouseI'AcadCmidce Droit Interna-
tional dclaHaye,1961.II,Vol.13p.510. Acopyofthispage iattachedasDocumentary
Awx 23.refashionedor natural inequaiitiescornpensatedfor through someformof
distributive justice'.It is also totally at oddswith the principleof natural
prolongationenunciated bythe Court. To misapplythe principleof equal-
ity of States in such a way would lead logically to rather ridiculous
results-States, by virtue of the equality principle, would have to have

territories of the same sire, equal populations, comparable economic
strength, etc.

4.08 It seemsevidentthat the Malteseinvocation ofthis principledoes
not go to this extreme. In paragraph 117 of the Maltese Memorial it is
pointedout that a medianlinewouldaccord Libyaa shelfarea ofapproxi-
rnately400,000squarekilometresand Malta a shelfarea ofapproximately
60,000 square kilometres. This is clearly not a division into two equal

parts, as that paragrapii acknowledgesP. Yet in paragraph 150 of the
Maltese Memorial it is said, in the portion quoted above, that "an
encroachment northward of the median Iine would involvean aflront to
the principleof the equality of States". This statement goestotally unex-
plained, and to Libya it is incomprehensible.If the median line method

wereordainedbythe principleof the equality of States, there would be no
pointin the Court analysingthe relevantfactorsand circumstancesof the
case. The equitable result would have been already established and any
other solutionwould bean "affront", an "encroachment".

4.09 It isnowappropriate to turn to an examination of the other main
misconceptionsthat appear in the Maltese MernorialS. The discussion
will deal with the elements of entitlement and delimitation separately.

A. Entitlement

1. TheContinenta Slbelf Entitlemen tf Islands

4.10 It does not appear to be necessary to go over the whole ground
again in explaining that a State's entitlement to the continental shelf
adjacent to its Coast- though the necessary basisfor a claim tothe area
to be delimited - in no waypredeterminesthe reach of continental shelf

rights vis-à-visthe continental shelf of another State which extends into
the same maritime area. This has already been explained inthe Libyan
Memorial and need not be repeated here4.The elementary distinction
betweencontinental shelf entitlement, on the one hand, and continental

'NO~I~ ~ea ContinentaShelfJudgmeni, I.C.J.Reporrs1969p.22, para.18 andp. 50.
para.91. As the Courtsaid at pp. 49-50, paraofthis Judgmcnt:"Equitydocs not
suchnaturalinqualiticasthcsethatequitycouldremcdy."nthesamcplane. andit is not
'Of courseas this Counter-Mernoralaktsabundantlyclcar.Libyaacccpuncitherthe
arcawhichMaltawould sodividas the arearelevanttothe precasenor thebasifor
sucha division.
'Scepara.4.01,abovc.
'Se LibyanMemorial,Chapter 6gcncrally.Cg11 COUNTER-MEMORIAL OF L~BYA 83

shelfdelimitationbetweenconflictingclaimsto the samecontinentalshelf,

on the other hand, had already ken recognised inthe 1958 Convention.
There, it will be recalled, the definitionof the continental shelf and the
criteria bywhicha State could claim legaltitle to the shclfweredealt with
inArticle 1whilethe delimitationof continentalshelf boundaries between
either adjacent or oppositeStates was dealt with in Article 6.

4.11 In its Judgment in the 1969 North Sea cases, the Court clearly
distinguishedbetween the legal basis of continental shelf rights over the
maritime areaç before oradjacent to a coas- to be found inthe physical
factofthe extensionof the landterritory into andunder the se- and the

criteria for delimitation betweenthe continental shelvesof twoStates -
whichisto be effectedin accordancewith equitableprinciplestaking into
account al1the relevantcircumstancesl.The new 1982Convention onthe
Law of the Sea makes the same distinction betweencontinental shelf
entitlement and continental shelf delimitation:Artide 76 of the Conven-
tion provides that a coastal State may claim continental shelf rights
throughout the natural prolongationof its land territory from its coast up

to certain lirnitsasdefinedin that Article. Article 83, on the other hand,
dealswith theissue how a continentalshelfarea - which rnay be clairned
by twoor moreStates - is tobedelimited betweenthem. Neither Article
refers to the other and their criteria qujte different. Moreover,para-
graph 10of Article 76 contains the expressprovisothat the provisionsof
that Article...are withoutprejudiceto the questionof delimitationofthe
cantinental shelf between States with oppositeor adjacent coasts".

4.12 Continental shelf delimitation between two States presupposes

that both rnay validly claim continental shelf rights undtr the rules of
continental shelfentitlernent.Asthe Court observedin the Tttnisio/Libya
case:

"The need for delimitation of areaof continentalshelf between
the Parties can only arise within the submarine region in which
claimsby them tothe exerciseof sovereignrightsare legallypossi-
ble according to international lawz."

This does not mean, however,that the seaward extent to which a State
may validly claimcontinental shelf rightsis in any way determinative of

the questionofthe delimitation ofthe continentalshelfbetweetn hatState
and neighbouringStates. For the basic criteria which gaverncontinental
shelf delimitation are that equitable principlbe applied and that al1the
'North Seo ContinentalSheK Judgmeni.I.C.J.Reports 1969, para.43,andp.54.
para.101 [disposit.~
'ContinentaShcv (Tunisia/LibyanRrab JamahiriyJudgment.I.CJ. Report1982.
p. 42. para.34.84 CONTlNENTAL SHELF [821

relevant circumstancesbe taktn into account in order to reach an equita-
ble rtsult. Malta's Memorial seems to recognisethis distinction between

continentalshelfentitlementandcontinentalshelfdelimitation,but it fails
to grasp the correctconceptualrelationshipbetweenthe twoaspectsof the
matter and the distinct criteria relevant to them.

4.13 The Maltese Memorialdealsat length withthe question whether
islands,and in particular island States, are entitled to claim continental
shelf rightsoversubmarine areas in front of their coasts. Malta refers to
the1958Conventionaswellas to the 1982Convention whichbothcontain
provisionsby which continental shelf rights may be claimed around the
coastofan island.Malta refrains, however,fromdea1ingwiththe implica-
tions of these provisions. Although neithtr Convention is applicable

between the Parties to the present dispute, Libya does not deny - as
already indicated in the Libyan Memorial' - that islands, irrespectiveof
whether thty are dependenciesor separateStates, may, in principle,claim
continentalshelf rights over maritime areas in front of their coasts under
the same conditionsand limits as any other land territory. The fact that
this is so, however,does not prejudge the question ofdelimitation with

neighbouringStateswhich, it has ken shown,must take into account al1
the relevant factors including the length of the island'scoasts vis-à-vis
those of neighbouringcoastal States.

4.14 Malta cites a list of agreements and national legislationto show
that State practice rmgnises the entitlement of islands to a continental
shelfin front of their coasts. However,thisails to focuson the real issue
which is not whether Malta may, in principle,claim continental shelf
rights around its coast to the extent of the natural prolongationof its land
territory into and under thesea, but rather what principles and criteria
determine the delimitation betweenthe continental shelvesof Malta and

Libya in the light of the geographical, geomorphologicaland geological
factors and the other relevant circumstances. Siate practice - as evi-
dencednot onlybythe agreements alreadyconcludedbut alsoby pending
disputes not yetresolved- shows a considerable variationinthe extent to
whichcontinentalshelfrights havebeen attributed to the coasts of islands
in the contextof delimitation.A thorough examinationof al1cases which
havebeenthe objectofdelimitationrevealsthat the weightgivento islands

and their coastsfor thepurposeof delimitationvaries - dependingupon
the particular factual settin- from non-recognitionto partial recogni-
tionup to fuHrecognition.Theseexamplesofdelimitation agreementswill
be examinedand analysed inmoredetail later in this Counter-Mernorial'.
For the present, itsufficesto say that the entitlement of islands, as such,
doesnot appear to have beenat issuein thosecases,but rather the weight

SeeiibyanMemorial,paras.6.79-6.86.
'SceChapttr5,SectionC, bcloaandthe Annex ofdelimitationagreements. COUNTER-MEMORIAL OF LIBYA 85

tobe givento thelocation,size,and lengthofcoastlinesof suchislandsand
other physical factors. These were the factors, among others, that were
regarded as relevantto reach a satisfactory result in the particular caseof

delimitation.

4.15 Thus, Malta's argument - that State practice (to the extent it
hasken cited in the Maltese Memorial) affirmsthe cntitlementofislands
to continental shelfrights overmaritime arcas around their coas-s does
not assistindetermining theequitableprinciplesorrelevantcircumstanccs
for the delimitation of the continental shelvesbetween Malta and Libya.

lnstead, Malta'scontentionsobscure the real issue,namely, the weightto
beaccordedto a srnallisland which liesinfront ofan extensivecontinental
coast.

4.16 If it is said that island coasts, in the samway as continental
wasts, may generate continentalshelf rights, it doesnot followtherefrom
that the natural prolongation ofanisland'sland tcrritory into and under

the sea- whichis the indispensablefactual basis of any clair- must
have the same dimension as the natural prolongation of a continental
landmass havinga much more extensivecoastline.~his is not at variance
with the principle of equal application of the law but is, rather, a conse-
quenceofthe reduceddimensionof the land territory and coastof a small
island whichgenerates a correspondinglymore limited natural prolonga-
tion. Wherean islandislocatedin the opensea,no question ofdelimitation
is presentedand thus the islandmay claim continental sheif rights under

the rulesofcontinentalshelfcntitlement. Where,however,asinthecaseof
Malta, the island is situated in a maritime area enclosedby continental
coasts, the normal principlesand rules governingdelimitation apply;and
continentalshelf entitlement is one factor among othtrs be considered,
itspropcrweightto bedeterminedinaccordancewithquitable principles.

2. TheCoastalBasisof Continental

Shelf Entitlement

4.17 Inparagraph 144,the Maltese Memorial correctly cites the fol-
lowingpassagetaken from paragraph 73 of the Court'sJudgment in the
Tunisia/Dbya case:

"As has ben explainedin connectionwith the concept of natural
prolongation,the coast of the territory of the State is the decisive
factor for title to submarineeas adjacent to it. Adjacencyof the
sea-bedto the territory of the coastalState has beenthe paramount
criterion fordetermining thelegalstatus ofthe submergedareas, as86 CONTINENTAL SHELF tg4]

distinct from their delimitation,without regard to the variousele-
ments which have becomesignificant for the extension of these
areas in the processof the legal evolutionof the rules of interna-
tional lawl."

4.18 Contrary to this clear exposition of what constitutes the geo-
graphical basis of continental shelf rights, Malta tries to assert that for

purposesofdelimitationofthecontinentalshelfvis-à-visanother State it is
not the coast, but some "basepoints" on the coast, which "generate2" or
"controlan appropriateareag"ofappurtenant continental shelf.From this,
Malta draws the conclusionthat the length of the coastline has no rele-
vanceto the extent of the continentalshelfarea appurtenant to that coast

and, consequently,norelevance forthe purposeofdelimitationof thisarea
vis-à-visanother State4.Bysubstituting basepoints.- whosesoleutility is
for the constructionof boundarylinesbasedoncertain methods - for the
coast as the basis of continental shelf entitlement, Malta obscures such

important geographicalfactsasthe smallsizeof Malta and itscoastlineas
compared with Libya's extensive coast facingthe maritime area to be
delimitedbetweenthem. The purposeof this lineof argument isapparent
fromthe followingassertion in the Maltese Memorial:"Malta has a need

for a lateral reach of control from its coastlinewhichcannot be lessthan
that of Libya6.".Thus,Malta rnerelyasserts equidistancewithout advanc-
ing an argument for its equitableness in the light of the particular geo-
graphical relationship between the respectivecoasts of the Parties.

4-19 Malta'sclaimthat a smallisland -as Malta is-or evena single
basepointon itscoast would,asof right, generate a continentalshelfofthe
same reach and extent as a continental coast of considerable lengthis

neither in harmony withcontinental shelf doctrine nor supported by the
jurisprudence of the Court. The continental shelf concept, thougha legal
concept and subject to legal interpretation according to its object and
purpuse, cannot be divorce from its factual basis. lt is the landmass

behindthe coastlinewhich - byitscontinuationinto and underthe sea -
providesthe factual basisand legaljustification fora State'sentitlement to
continental shelf rights over maritime areas before its coast - and not
mere distance or proxirnity from certain basepointson the coast6.

'ContinentalShelj (Tunisia/LibyanArab Jamahiriya),Judgment.I.C.J. Reports 1982,
p.61, para.73.
'Maltesc Memorial. para. 120SCFal30 the discussioof Malta'sassertionsrcgarding
"basepointsal Chaptcr2,SefiionB.3,abovc.
'Ibid., para128-129 and246.
'Ibid.. para.232.
'North Sea ContinentalShelj. Judgment,I.C.J.Reports 1969. p.para.43.I8SI COUNTER-MEMORIAL OF LIBYA 87

4.20 This Court hasmadethe factual basisofcontinentalshelfentitle-

ment quite clear in its Judgrnenl in the North Sea cases whereit said at
paragraph 43:
"What confersthe ipsojure title whichinternational lawattributes
tothe coastalState inrespectof itscontinentalshelf,isthe fact that

the submarine areas concernedmay bedeemedto beactually part
of the territory over whichthe coastal State already hasdominion,
- in the sense that, although covered with water, they are a
prolongation or continuation of that territory, an extension of it
under the sea. From this it would followthat whenever a given
submarinearea does notconstitute a natural -or the mostnatural

- extensionof the land territory of a coastal State, even though
that area may becloserto it than it is to the territory of any other
State, it cannot be regarded as appertaining tothat State; - or at
least it cannot besoregarded in the faceofa competingclairnbya
State of whoseland territory the submarine area concernedisto be
regarded as a natural extension,even if it is less close toitl."

4.21 The Court enunciated this fundamental principle of continental
shelf delimitationina disputewherethere werecompetingclairnsbetween
adjacent States, but it remains by the force ofits reasoningno lesstrue in
situations where there are competing clairnsby States whose coasts are

oppositeto each other. Indeed, theCourt has indicated that the applica-
tion of this principleisnot limited to geographical situations of the first
kind. This has been made quite clear by the Court in the TunisialLibya
case:

"The coastof eachof the Parties, therefore,conçtitutesthe starting
line from whichone has toset out in order to ascertain howfar the
subrnarineareas appertaining toeach of them extend in a seaward
direction, as well as in relation to neighbouring States situated
eitherin an adjacent or oppsite positionz."

Thus, in each geographicalsituation where thereare cornpetingclaimsof
States forcontinental shelf areas, it has always firstto beascertained what
areas can be regarded as the natural prolongationof the respective land
territories of each of the States involved. In a case where asrnall island

liesoppositea long coast, thenatural prolongationof the land territory of
the island will,by the natural fact of its small size, be more lirnitedthan
the natural prolongationof the opposingcoast.
4.22 In its Mernorial,Ljbya has already providedample evidencethat

in the shelfarea betweenMalta and Libya there is a marked - and even
NorrhSeu ConrincnralSheK Judgmenr.I.C.J. Reports 1969.31, para43.
' ConlineninShey (Tunisia/iibyan Arab Jarnahiriyu),Judgmeni.I.C.J. Reports 1982,
p.61. para74. 88 CONTINENTALSHELF. Cg61

in a global perspective rather rare-discontinuity which terminates
Malta's natural prolongationat what has been termed the "Rift Zone1".
This limit of Malta's natural prolongation is in harrnony withthe geo-

graphical fact of Malta'ssmallnessin relation to the longoppositecoastof
Libya. Sosmalla coast couldnot generate as extensivea natural prolon-
gation assuch a longcoast. Similarly, Malta's natural prolongationeast-
ward isarrested bya seriesofescarpmentsand faults whichare major sea-
bed features. This limit ofMalta'snatural prolongationeastward isagain
in harmony withits tiny east-facingcoast. The extreme suggestionin the

Maltese Mernorialthat Malta's natural prolongationextends al1the way
@ to the eastern coast of Libya (Ras at-Tin), as portrayed on FigureA at
page 118, and overlapswith Libya'snatural prolongation from its exten-
sivecoastoffendstotally thoseequitable principles,quite aside frorn over-
looking the important sea-bed features that arrest Malta's natural
prolongation.The propositionthat seems toflowfrom this extremeasser-

tion- that any claim of Libya north of a median fine.would"encroach"
on Malta'snatural prolongationconstructed inthis.artificia1and inequita-
ble fashion- is pure invention and has no basis in fact or in law2.
4.23 Apart fromthe physicalfactorswhichalready lirnitMalta'snatu-

ral prolongation, the result would not besubstantially different if, as
Malta contends,the discontinuityin the shelf wereabsent. Evenif there
were nophysicalfactorswhichpermitted a sufficientlyprecise determina-
tionof the reach of the natural prolongationof an island,it doesnot mean
that an islandof srnalldimensionsmust, under equitable principies,have
attributed to it a natural prolongation of the same dimension as the

natural prolongation of the continental coast which it faces. Reference
may be made in this respect to paragraph 194of the Court of Arbitration
in the Anglo-FrenchArbitrarion where it was stated:

"The true position,inthe opinionof the Court, isthat the princi-
pleof natural prolongationof territory isneither to beset asidenor
treatedas absolute in acase where islands belonging to oneState
are situated on continental shelf which wouldotherwiseconstitute
a natural prolongationof the territory of another State. The appli-
cation of that principlein such a casas in othercasesconcerning
the delimitation of the continental shelf,s to be appreciated in

the light ofl1the relevant geographicaland other circumstances.
When the question iswhether areas of continental shelf, which
geologicallymay be considered anatural prolongationof the terri-
toriesoftwoStates, appertain to oneState rather than to the other,
the legalrules constituting thejuridical conceptof the continental
shelf take overand determine the question. Consequently,in these

'LibyonMernorialparas.3.12-3.24;sa alsoparas.2.70-abovc.
'Set MalteseMernorialparas240-243. cases the effecttobe givento the principleofnatural prolongation
of thecoastalState'slandterritory is alwaysdependentnot only on
the particular geographical and other circumstances but also on
any relevant considcrationsof law and equity'."

4.24 Libya docsnot contend that the case of the Channel Islandsand
Malta arc comparable in al1 respects. Nevertheless, the above dictum
contains two important considerationsthat apply in the present dispute:

(i) Incases wherethe natural prolongationsof an island and a
continental coast- in frontofwhichthe island islocated -
overlap, the continental shelf tobe attributed to the island

willhave tobe deterrninedinaccordancewithequitableprin-
ciples, in particulaby taking into accountthe geographical
situation ineach particular case4;

(ii) Islands in such a geographicalsituation willbe attributed a
much smaller area of continental shelf than the continental
coast, the extent of the area dependingon the quities of the
case.

B. Delimitation
1. TheRelativeWeigbtof Coasts of Different
Lengtbs For Purposesof Delimitation

4.25 The delimitation of maritime boundaries between small islands
and longcontinental caasts poses the specialproblem of determining an
equitableboundary between coastlines of extremcdifferencesin length. It

must be emphasiscd,however,that this problem is not peculiar to islands
aloneand may alsoarise betweenmainlandcoasts. In vitw of the sizeable
number ofsmall islands with small coastlines facingcontinental coasts,
however,this problemarisesmuchmore frequentlyinconnection withthe
delimitation of island maritime boundaries. On the other hand, where

larger islands are involved in a maritime boundary delimitation, their
coastlines may well broadly correspondinlength to the oppositecontinen-
tal coastssothat the problemofdelimitationbetweenunequalcoastsdoes
not arise'. Inthe present case,Malta isa small islandwhosecoastsface a
continentalcoastrelevanttothe delimitationwhich,inthe caseof Libya, is
more than eight times longer than the related coastof Malta. Thus, the

delimitation of a maritime boundary between unequal coasts poses itself
'Angio-FrenchArbitration. Deciofo30Junc 1977(Cmnd. 7438).p.93, para194.
'The conceptof the 'mat natural" prolongatrefcrreto in the1969Judgmentis
pertinenin ~hiscontcx(NorthSea ContinentaSheg ludgmenf. I.C.JReportsIW9,
p.31.para.43).The relevantlanguagequottdat para4.20,abovc.
'The Angle-FrenchArbi~ratioprovidaa pertinentcxarnple.fhroughoutthc English
ChannetlhecoastsotheUnitedKingdomandFrance wercseentok roughlycomparablen
lcngthdcspitethefactthaithe reletortionof theUnitcdKingdomwasan islan. ac
Map 7 facinp. 90klow.90 CONTINENTALSHELF [881

with spwial gravity. As the delimitation of the continental shelf is inti-
mately connectedwith and dependent on geographic realities, this fact
must be addressed.

4.26 In its Mernorial, Malta tries to disposeof this consideration by
asserting that between opposite coasts, whatevertheir dimension and
length,the medianline necessarily representsthe equitable boundary. For

this bold assertion Malta purports to findsupport in paragraph 57 of the
Jùdgment inthe Norrh Sea cases (also referred to in paragraph 126ofthe
Court'sJudgment in the Tunisia/Libyacase) where the Court, in distin-
guishing delimitation between adjacent and opposite coasts, said the
foilowing:

"The continental shelf area off,and dividing, oppositeStates, can
be claimed by each of them to be a natural prolongation of its
territory. Theseprolongationsmeet and overlap,and can therefore
only be delirnitedby means of a median line; and, ignoring the
presenceof islets,rocksand rninorcoastaf projections,the dispro-

portionally distorting effect of which can be eliminated by other
means, such a line must effectan equal divisionof the particular
area involved'."
Thisdictum of the Court, whilecertainlytrue in casesof continental shelf

delimitation between relatively simplecoastlines of comparable length,
cannot apply to the delimitation between Malta and Libya. When the
Court stressed the prevalence of the median line in a continental shelf
delimitation between opposite cqasts, the Court had in rnind coasts of
comparable length, not a delimitation between a small island and an
extensive continental coast.The question of islands did not arise in the

North Sea cases. This followsquite evidently fromthe language of the
Court. The Court didnot saythat between opposite coaststhe medianline
isalwaysequitable,but rather that it "effectsan equal division"ofthe area
involved - which wi11oniyin fact result in those cases wherecmsts of
comparable length oppose each other, and will never result where a
median or equidistanceline is drawn betweena small island and a much
longercontinentalcoast.Therefore,it must beassumedthat the Court had

only opposite coastsof comparable length in mind.
4.27 Theonlycasesofar wherea delimitationbetween clearly opposite
coastswas decidedbyan international court isthe AngleFrenchArbitra-
tion. In that case, the Court of Arbitration deterrnined that the median

line between the opposite coasts of the British and French mainlands
constitutedan equitable boundary.The Court did not, however,applythe
median line methodwith respect to the Channel Islands. Map 7, facing
page 90, which depicts the resulting boundary, illustrates these points.

'NorthSeo ContinentaShelJ;Judgment,I.C.J. Reports 1969, p. 36, para.57.1x91 COUNTER-MEMORIALOF LlBYA 91

When referring to this Decision,the Maltese Mernorialomits any refer-
enceto the repeated remarksinthe Judgment that the equitablenessofthe
median line between oppositecoasts presupposes that both coasts are
approximately ofequal length'. Particular reference maybemadein this
respect to the following passage from the Decision in the Anglo-French
Arbitralion:

"BetweenoppositeStates,as this Court has stated in paragraph
95, a median line boundary wili in normal circurnstances leave
broadly equal areas of continental shelfto each State and consti-
tute a delimitation in accordance with equitable principles.It fol-
lowsthat wherethecoastlinesoftwooppositeStatesare themselves

approximately equalin their relation to the continental shelf not
only shouldthe boundary in normal circumstances be the median
line but the areas of shelf leftto each Party on either side of the
mediari line should be broadly equal or at least broadly
comparable'.''

Later in the Decision,whenthe Court of Arbitration refused to givethe
Channel Islandsthe same weight as the British mainland coast and thus
distinguished their case from the delimitationbetween the British and
French rnainlands, the Court of Arbitration made the followingremark:

"In paragraph 18 1,the Court has already drawnattention 10the

approximate equality of the mainland coastlinesof the Parties on
either sideof the EnglishChannel, and to the resulting equalityof
their geographical relationto the continental shelfof the Channel,
if the Channel Islands themselves are left out of account. The
presenceof these British islands closeto the French coast, if they
are givenfull efïect in delimiting the continental shelf,wiUmani-

festlyresult in a substantial diminution of the areof continental
shelf whichwouldotherwiseaccrue to the French Republic.This
fact by itself appears to the Court to be,prima furie a,circum-
stance creativeof inequityand callingfor a rnethodofdelimitation
that in some rneasure redresses the inequity3."

4.28 Thus, it seemsclear that the Court of Arbitration regardedthe
argument of the equitablenessof the median line between oppositecoasts
as being valid only in those cases wherethe oppositecoasts are broadly
equal or comparablein length. It should benoted,in this context, that the
Court in the TunisialLibyacase made acarefully balancedremark about

'See,forexampie,M~lieseMemorio!,para. 182.
Anglo-FrenchArbitrarioDecisionof30June 1977(Cmnd. 7438), p89,para.182.
'Ibid.. pp. 93-94. para. 196.92 ComlNEmAL sIiELF [901

the appropriateness of the median line in situations of adjacency and
oppositenesswhich showshow wellawarethe Court wasofthe relativityof

any argument based on the oppositenessof two coasts:
"The Court in its 1969Judgment recognizedthat there was much
lessdificuliy entailed in a general applicationof the equidistance

method inthe case of coasts oppositeto one another, when the
equidistanceline becomesa rnedianline,than in the caseof adja-
cent States (I.C.J.Reports 1969,pp. 36-37,para. 57). The major
change in directionundergoneby the coast of Tunisia seemsto the
Court to go some way, though not the wholeway, towards trans-
formingthe relationshipof LibyaandTunisiafromthat ofadjacent
Statestothat ofoppositeStates, and thus to producea situation in

which the positionof an equidistance line becomes afactor ro be
given more weightin the balancing of equiiable considerations
than wouldotherwise be the case'."

Thus, the Court was far from givingthe median line between opposite
co?sts that absolute character which Malta would like to assert.
4.29 Since there is no rule that in cases of continental shelf delimita-

tion betweenan islandand a continentalcoast the median linewillneces-
sarily produce an cquitable boundary, the question rernainsas to what
other equitable principles should govern the delimitation in such cases,
apart from the physicalfactorswhich havealreadyken dealt withabove.

4.30 A principlethat has found recognitionin thejurisprudence ofthis
Court as wellas in the AngleFrenchArbitration,and which appears to
have gainedsupport in a number of bilateral delimitation agreements, is
the consideration that the "weight" to be attributed to small islands in
termsofcontinentalshelfrightsvariesaccordingto their size,locationand
other factors, and may considerably reducethe cantinental shelf area

attributed tosuch islands onthe basisof an evaluationof these factors in
the particular geagraphicalsituation. In the Annexof delimitation agree-
ments to thiCounter-Mcmoria afcareful analysis has ken made of ail
enistingdelimitation agreements of which Libya is aware. These include
many situations where islands were involved one way or another. As
Section C of Chapter 5 below and this Annex make clear, any general
conclusionsdrawn from this "State practice" are necessarilycondition4

by the particular circumstancesof each case.This analysissuggests,how-
ever,that the sizeofthe idand as wellas the comparabilityofthe opposing
coastlineshas exercisedan important influenceonthe "weight" attributed
tosuchan islandand the continentalshelfarea accord4 tothat part of its
coast that faces the area which has been delimited.

ContinentaShclf(Tunisia/fibyan Arab Jarnahiriyu).Judgment.I.C.J. Reports 1982,
p.88.para.126.[Italia addcd.] 4.31 Thus, a comparisonof the length of the relevant coastlinesthat

facethe area to bedelimited betweenthe islandand the continental coast
is fundamental to the overridingaim of achievingan equitable result in
accordance with equitable principles. If the amount of continental shelf
area that wouldattach to an island'scoastlinebyvirtueofthe equidistance
oranyother boundary lineisout ofproportion to theratioof therespective
coastlines ofthe island andthe continental coast relevant to the delimita-

tion, thisis a ciear indication that such a boundary is inequitable. This
doesnot rneanthat proponionality is usedin such a case as a method for
determining the boundary line; it servesonly as a test of the appropriate-
nessof a particular boundary in the same manner as this test wasusedby
the Court of Arbitration inthe AngleFrenchArbitraiion wherethe Court
said:

"Proportionality, thereforeis to be used as a criterion or factor
relevant in evaluating the equities of certain geographical situa-
tions,notas a general principleprovidingan independentsourceof
rights to areas of continental shelf'."

4.32 Theinequitablenessof Maltatsclaimto an equidistanceboundary
- under whichan amountofarea ofcontinentalshelfwould beattributed
to Malta farout of proportion to the ratio of the respectivelengths of the
relevant coastlinesofboth Parties - isthusapparent. It isunderstandable

that Malta doesnot like the proportionality testand contests the applica-
tion of such a test tothe delimitation between Malta and Libya. But,as
will be seen in Chapter 6 below, there is no support for the Maltese
positioninthejurisprudence of this Court whichhas qualifiedproportion-
ality as an elernent of continental shelf delimitation which "is indeed
required by the fundamental principleof ensuring an equitable delimita-
tion between the States concernedz".

4.33 Whatever may be the functionof proportionality in continental
shelfdelimitation,the comparative length of the coastlinesof the Parties
whichfacethe areato be delimitedbetweenthern stilremains ofprimary
relevance forthe evaluationof the "weight" ofMalta'scoastin relation to

Libya'scoast indelimitingthe continentalshelf betweenthem. If it may be
considered that the medianIine between opposite coasts is equitable
because in a case of coasts of equal or at teast comparable length the
rnedian line effects a partition of the continental shelf in equal parts
(absent other factors), it followsper argumentum a conirario that a
marked difference betweenthe coasts which face each other must find
expressionina boundarywhichadequately reftectsthisdifference.Thus,it

seemsto bean equitable principlebasedonundeniable geographicalfacts
'Anglo-FrenchArbitraibnDccisionof 30 Junr 197(Cmnd. 7438),p.61, para101.
'ContinentalSheij (TunisialLibyanArJarnuhiriyu)Judgmsnt.I.C.J.Reporrs1982,
p. 75,para103.94 CoN'ïINEmAL sHE.LF 1921

ina geographicalsituationofthiskindthat - apart fromnicc ealculations

of proportionality- the ratio between the length of the two relevant
coastlines that embrace the maritime area to be delimited is a suitable
rnethodfor calculatingthe relative"weight"of the island'scoast ingener-
ating the natural prolongationof its territory visdà-acontinental coast
with much more extensive dimensions.

2. The Alleged PrivilegedStatus OF IslandStates
4.34 The inescapable conclusionthat is derived from the Maltese

Memorialisthat Malta clairnsthat, asan islandState, itscontinentalshelf
should extend as far as the continental shelf of any other coastal State,
irrespective of its small size and its restricted coastline, and that any
considerationsthat might affectthe caseofdependentisiandsdo notapply
to an island State'. This allegation does not find support in the jurispru-

dence referred to by Malta, nor does it accord withthe treatment of this
issuein the United Nations Sea-BedCommitteeand at the Third Confer-
ence on the Law of the Sea.

4.35 Turning first to the AngleFrench Arbitration to which Malta
refers2,it is true, as the Maltese Memorial indicates,that the Court of
Arbitration consideredat some lengththe politicalcharacteristics of the
Channel Islands and the degree to which they were dependent on the
authority of the United Kingdom. But this detailed analysis was aimed

essentially atdecidingto whatextent theseislands couldultimately derive
individualtitle"to their owncontinentalshelf vlF-à-vithe French Repub-
tic3".Moreover,asmentionedearlier inconnectionwith economicconsid-
erations, the parties to that case presented voluminou evidence on
politicaland economicfactorsand the Court ofArbitration had no choice

but to dealwiththese arguments.The fact that theydid so isnot recogni-
tion of economicand politicalconsiderationsas relevantcircumstancesin
delimiting the continental shelf. The ultimate solution in the case of the
Channel Islands hardly bears out the significancewhichMalta seesin the
political factor in that case. The Court of Arbitration disposed of the
argument raised by the United Kingdomthat the Channel Islandsshould

be treated likeseparate semi-independentStates by denying sucha sepa-
rate statusand treating them onlyas islandsof the United Kingdom" To
infer therefrom, as Malta does, that the Court wouldhave attributed to
the Channel Islandsadditionalareas ofcontinental shelf had theybeen an

'This subjcisdealtwithbricflyin Chaptcabovc(paras3.45-3.46)in thecontcxtof
consideratiosdvanccdbyMaltathatLibyaregardasirrclevantto theprcscntcase.The
chapter(ChapterVI)msistinofparas.135-178.pp.43-58,isdcvotthesubjcct.no10
spcakof the numerous otrcfcrcnccscontaincdctscwherein thatplcading.
'MalieseMernorial,para.138.
'Angl&FrenchArbitralion. Decisof30lune 1977 (Cmnd.7438). p. 90, para.186.[933 COUNTER-MEMORIAL OF LlBYA 95

independentState', is mere conjecture and bas not been indicated in any
way in the language of the Decision.Ttis certainly conceivablethat the
overall geographical relationship between two States might influencethe
treatment of their respective islands indelimitation agreements aimedat

reachingan equitableresult;and that suchconsiderations mightnot apply
ina casewhçre - inconsequence ofthe fact that the islandinvolvd isan
independent island State - the delimitation would necessarily be
restricted tothe relationshipof that islandalonetothe opposite continen-

talcoast. However,this does not imply a privileged positionfor such an
islandbecauseof its independent politicalstatus but, rather, results from
the effbctof the overall geographical relationshi betweenthe respective
States.

4.36 Malta purports to draw further support for the allegedprivileged

positionof içlandStates in continental sbelfdelimitation from the Decla-
ration ofthe OrganisationofAfrjcan Unityonthe Issuesofthe Lawofthe
Sea, adopted at the sessionof its Councilfrom 17-24May 1973in Addis
Ababa and scaffirmta at the Council'ssessionin Mogadisciufrom 6-11
June 1974'. This Declaration wntained a paragraph on the régime of

içlandsand a referenceto the specialinterestsof islandStates. Howevera
careful analysisof the wordingas weHas ofthe purposeof this paragraph
of the Declaration reveals that the positionof.the African States on the
island question hadat that time focussednot on the delimitation of an
island'smaritime spaces vis-à-visneighbouring States but rather on the

stiil controversial issue of the entitlement of islands to a continental
shelf or an economiczone.

4.37 In this respect, the Deciaraticin did not even support the full
entitlement to continental shelf nghts of island States and, much Iess,
Malta'sclaim to a privilegedpositionas an islandState.The Declaration

stated the position of the African States with respect to the régimeof
islands as follows:

"That the African States recognizethe need fora proper determi-
nation of thenature of maritime spacesof islandsand rccommend
that such determination should be made according to equitable

principlestakingaccountofal1relevantfactorsand specialcircum-
stances including:
Maftese Mernorial,para.138.
*Thisiserroneouslyatd inpara.206otheMalieseMernorialas19July1974. Itisnoted
that thisDcclaratiwasmentioncdinparas.206and207of thtMalteseMernorialinthe
sectiondcalinwiththeconductof thePartiesAsidcframthefaci thattht Dtclaralion
hardlysupportsMalta'scontentio.sshownbtlow.itatsois apparentthtcuitionstaken
andvotes castby eitherof thPanio at internatiol nfcrcn~csandas mcmbcrs of
internationalorganisatiselectatrandorninthiway,can hardlbe regard4ashaving
legalrclcvancintcrrniofthecondudof theParties. CONTINENïAL SHELF

(a) The size of islands
(b) Their population or the absence thereof
(c) Their contiguity to the principal territory
(d) Their geological configuration

(e) The special interest of island States and archipelagic
States."

4.38 Thispositionmust beviewedinthe light of the-at that timestill
unresolved~ontrovers~ in the United Nations Sea-Bed Committee
whether andto what exient islands shouldbeaccordedextendedmaritime
spacesoftheir own beyondthe limitoftheir territorial waters.That iswhy

the above-citedDeclarationdid not speakofthe extentbut of the "nature"
ofmaritime spacesofislands,thus makingit clearthat onlythequestionof
entitlement to extended maritime spaces was addressed here, not the
question of delimitation between islandsand continental States1.

4.39 The approach of the African States relating to the maritime

spaces of islands as expressed in this Declaration was mainly directed
against small islands generating enorrnous spacesof continental shelf or
economic zonearound them, and reducingtherebythe international areas
of the oceans. In this context, it is particularly significantthat the size of

the island has been considered as the primary factor for an equitable
entitlement of islandsto continental shelf rights. It seemsthat, under the
criteria put forwardinthe Declaration,Malta wouldhavehad avery weak
claim to continental shelf entitlement untess.as an island State. it could
haveshownspecialintereststhat might mitigatethisdiminution ofentitle-

ment. Certainly no support for a privileged position of island States in
delimitationcases can be drawn from the Declaration.

4.40 It maybeusefulinthiscontext to reviewthe further development
of the island question in the discussionsof the United Nations Sea-Bed
Cornmitteeandat theThird UnitedNations Conferenceonthe Law ofthe

Sea. The approach of the African States to reduce the entitlement of
'Thispurposeofthc Dcclaration ofthe OrganisationofAfricanUnityhasbeenexplainedby
theTunisiandclcgatein the 40th Meetingof the United Nations Conferenceon the Lawof
theSta,whcrchcdcplorcdthe tact that the 1958Conventionhad grantcd islandsthe sarne
rights acontinentalandmassesand statcd that this situation-
"...wasalso unfavourablcto al1land-lockedand othcr geographicallydisadvantaged
States, which. having cxpectcd an quitable distribution of thc rcsourcts of the
internationzonew.crejustly concernai ai swingthat conceptrenderedrneaninglcss
by the txaggcrated clairns of countrics passcssingislands, particuiarly whcn the
concept ofthe 2Wmile econorniczonc andthat ofarchipclagicStates promiscdto
bccomea rtality.
"The Dcclarationof thc Organisationof African Unity (A/CONF.62/33) wasan
attcmpt torcsolve ihat conflict of interests and establish objective and quitable
rules...".
40th Mceting (14 August 19741,Third United Nations Conferenceon the Lawhi,the
Oficia Records,VolII,p. 287. A copyof this isattached as DocumenraAnnex 24.islands to extensivemaritime spaces remained basically the same during
these discussions.They took, however, a more moderate position with

respect to the entitlement of island States, holding that island States
should remain exempt froma reduction or denial of entitlement on
account of the above-mentionedcriteria; but as to delimitation of the
maritime spacesof island States vis-à-vis mainland States they held that
they should remain subject to those criteria. Reference may be made in

this respectta the draft articlesproposedby 14African States in the Sea-
Bed Committee1.

4.41 At the Law of the Sea Conference,the entitlement of islands to
continental shelf or economic zonerights was by no means undisputed.
Several drafts werethere put forwardwhich proposedto take account of

such factors as the sire of islands, their population and their geographic
positionin attributing maritime areas to them-some of them evenwith-
out makingspecialprovisionfor islandStates. Reference maybe made in
this respectto the Draft Paragraph on the Régimeof Islandsproposedby

Algeria, Cameroon, Iraq, Ireland, Libya, Madagascar, Nicaragua,
Romania andTurkey which read as follows:

"Islands whichare situated on the continental shelf or exclusive
economic zone of another State, or which on the basis of their
geographica location affectthe normal continental shelfar exclu-

siveewnomic zoneof other States shall haveno economic zone or
continental shelf of their ownP."

Proposaisof this kind met with the vigorousoppositionof those many
States which wanted to claim continental shelf and economiczone areas
around their islands, and of course of the small island States which

objected to any diminution of their general entitlement to such maritime
'U.N. ûoc. A/AC.138/SC.II/L.40 and Corr. 1-34encral AsscrnblyOfici oecords:
28thSession.SupplerneniNo21 (A/9021), Vol.Ip.89.Art.XII ontherégimeofislands
rcads as follows:
"1. Maritime spaccofislands shabe determincd accordingto quitablc principlcs
taking into accountal1relevantfactors and circurnstanccs,includinginteralia:
a) The sizcof islands;
b) The populationor the absencethcrcof;
c) Their contiguityto the principal tcrritory;
d) Whciher or na ihcy arc situondthe continentshdfofanothcr ttrritory;
e) Thcir goologicalad gwmorphologicstructureand configuration.
2. Island States andthe régimeof archipclagicStates as set oui undcr the prscnt
Convention shallnot bcaftccted by lhis article."
A copy of this pagc is attckd inDocumeniary Anmx 25. Sec alsoU.N. Dac.
A/CONF.62/C.2/L.62/ Rev. 1 (27 Aug.i974) Third United Nations Conferenceon the
Law ofthe Sca;Oscial Records.Vol.III, pp. 232-233copyof thipage isattachtd as
Documcntory Annex26.
'U.N. Doc.A/ CONF. 62/C.2/1.96 (11July 1977). Third United NationsConferenccon
theLaw of thc Sca:Ofidol Recordr.Vol.VIp.84. A copy of ihis paisattachcd as
DocumeniaryAnnex 27.98 CONnNENTALSHELF 1961

zones. For examplc, refcrence may be made in this respect to the com-

plaint made by New Zealand (speaking for the Cook Islands) that the
situationofsmallislandcountries,and particularly ofthose in the Pacific,
had not yet becnfullyappreciatcd bythe Conference';and the representa-
tive of Malta expresse. the wish that a distinction bcmade between
islands and island States in the followingterms:

"With regard tothe régimeof islands, hesaidthat his delegation

rtcognized the difficultyofdefiningmaritime spacesbccauseof the
presenceof islands,but it could not support the suggestions which
had beenmade on the subject of islands unlesa cIear distinction
was drawn between islandStates and other islandsP."

4.42 In view ofthe strong oppositionagainst any curtailment of the
generalentitlementof islandsto continentalshelfor cconomic zonerights
alongthe linesof the above-mentionedproposalof the African States and

others like it, the Third Conference onthe Law of the Sea adopted the
formulawhichisnowcontainedin Article 121,paragraphs 2 and 3of the
Conventionon the Law of theSea, reading as follows:

"2.'Exceptas providedfor in paragraph 3, the territorial sea, the
contiguous zone, the exclusiveeconomic zoneand the continental
shelfof an islandaredeterrninedin accordancewith the provisions
of this Conventionapplicable to other land territory.

3. Rocks whichcannot sustain human habitation or economic life

of their ownshall have no exclusiveeconomic zoneor continental
shelf."

With the exception of rocks which cannot sustain human habitation or
which have no economic life of their own, the Convention makes no
distinction betweencontinental or insular territories, or betweendepen-
dent orindependent islands with respectto their entitlementtocontinental
shelf or economic zonerights off their coasts; the Convention does not

recogniseany privilegedposition for islandStates as compared with other
islands.The equatingof islandsto "land territory" inthe1982 Convention
- whichfollowedin this respect the precedent setby Article 1 (b) of the
1958Continental Shelf Conventionrelating to the continental shelfenti-
tlementof islands- leavesnodoubtthat, withrespectto the generationof
continentalshelfor economiczonerights, the politicalstatus of the island

is irrelevant, and that it is the territory whichgenerates the continental
shelf or mnomic zone rights off its Coast.In viewof this outcomeof the
'46th Meeting(29July1974).ThirdUnittd NatioConferenceonthe Law ofihc Sca,
Ofici Ralcords,Vol.p.200. A wpy ofthipageisattacheisDocurncnlarAnnex 28.
105thMeeting(19May 1978),idem.~cialRecords. VoIX,p.79. Awpyof thispage
isattachcàasDoeumentoryAntwx 29.1971 COUNTER-MEMORIAL OF LlBYA 99

negotiationsat the Conference,aspecialprovisionfor islandStates, secur-
ing forthemthe general entitlementto maritimespaces,had noobjectany
more.

4.43 Here again, however, entitlement must be distinguished from
delimitation. It must be emphasisedthat Article 121 (Régimeof Islands)
deals exclusively with entitlement to maritime spaces vis-à-visother
States. The continental shelior economic zonedelimitation between the

coasts of States, whether insular or continental, is exclusivelyregulated
under Articles 74 and 83 of the 1982 Convention; no inference can be
drawn from Article 121with respectto the criteria forsuch delimitation.
Thisinterpretation correspondstothe historyofArticle 121.Itsparagraph
2 - which had already appeared in the first informa1negotiating texi

after the Geneva Sessionin 1975and remained unchangeduntil the final
adoption of the Convention - had been taken in its substance from the
draft articleson islands proposedby New Zealand andthree other Pacific
island States'. This proposai hadbeen accompanied by an explanatory
note that this proposal was "intended to be without prejudice to the

questionof the delimitation ofislandoceanspace as betweenadjacent or
oppositeStates, or in other specialcircumstances".

4.44 Malta's Mernorial (paragraph 169) cites with approval the
rernarkmade byJudge Oda in paragraph 150ofhis Dissenting Opinionto
the Judgment of the Court in the TunisialLibyacase in respectto Article
121of the 1982Convention:

"No suggestion wasever made, no idea ever presented, toimply
that an island State should be distinguished from other coasial
States or from any non-independent islandor groups of islands."

Thiswas certainlya correct assessrnent ofthe outcorneofthe negotiations
at the Third UnitedNations Conferenceonthe Law afthe Sea as far as it

has foundexpressionin Article 121of the Convention.Malta's Mernorial
fails,however,toacknowledgethat theequatingofinçularandcontinental
territory contained in Article 121,paragraph 2, of the Convention, white
tecognising the general entitltment of island territories to continental
shelf rights, at the same time subjects islands- whether dependentor
independent - to the sameprinciples andrulesofdelimitationthat apply

betweenthe coastsof any land territory. No inferencecan be drawn from
Article 121 that undeniablegeographicalfactssuchasthe smallsizeofan
'U.N.Doc.A/CONF.62/C.II/L.30 (30 July 1974),ThitdUnitedNationsConference on
theLawoftheSea,OJicialRecords.Vol.11, p.210-211.copyofthescpagesisaitachcd
asDocurncnrarAnnex30. Paras.3 and4 ofthisproposarcadas follows:
"3. The wnornic zone of an island and its contincnialshclf are detinmincd
accordanccwiththeprovisionsofthis Convention applicablteootherlandtctritory.
4. Thcforegoingprovisionshaveapplicationtoal!islands,includingthosecompriscd
in an islandState."100 CoNTlNEmAL sHELF [981

islandand thelimitedextentofitscoastline - whichhave been considered
relevant in delimitations where islandsare involved - couid simply be
ignored because the island happens to be an independent State. Article
121isbasedon the premisethat it is the territory, and not statehood,that
is the factual and legal basis forrights over maritime spacesin front of a
coast.

4.45 Thus,i;respectiveofwhetherthe generalentitlement of islandsto

continentalshelf'or economiczonerights may - despite its controversial
character - nowbe regarded as existinginternational law,Malta'sclaim
that islandStates have a privileged position incontinental shelf delimita-
tion can certainly not find any support in the latest developmentsin the
Law of the Sea.

3. The So-Called"Distance Principle"

4.46 The Maltese Memorial advanced what is termed the "distance
principle" as a further argument which in Malta's view "confirms the
legalityof the median line" for the delimitation of the continental shelf

areas of Libya and Malta1. It is not easyto followthe line of argument
which purports to lead to such a bold conclusion because, here again,
Malta'sargumentation confusesentitlement and delimitation. The Mal-
tese Memorial even goes so far as to suggest-in another hypothetical
example of which Malta seems particularly fond (see paragraph 2.20,
above)-that if the Maltese Islands weresituakedin the Atlantic Ocean

lessthan 400 milesoffshorePortugal, a delimitationwould"of necessity"
haveto be by meansofequidistance. No explanationis offered, however,
whythis must be so. Indeed,the acceptance of such a propositionwould
mean that delimitationswouldalwayshaveto be establishedaccordingto
an equidistanceline,clearlyan unacceptable interpretationofthe law. At
any rate, the criterioof distance is neither applicableto the continental

shelf delimitation between Libya and Malta, nor does it provide a legal
justification fordrawing a median line in such a delimitation2.

4.47 The Court has alludedto the factor of distance in paragraphs 47
and48ofits Judgmentin the TunisialLibyacase irireferringtoArticle 76,
paragraph 1,of the 1982 Conventionas possiblyreflectingnewtrends in
the Law of the Sea3. The Court made itquite clear that it understood
such a factor in the sensethat adjacency within 200 miles fromthe coast

could, under Article 76 of the Convention,in certain circumstancespro-
vide a subsidiary title to continental shelf rights over submarine areas
within the 200-milelimit. The Court said:

'Sec, gencrally.Libyan Memoriol,paras.and66.22.
jAspointcdoutinpara.6.22 of the LibyanMemorial.t1982Conventionis notinforce
eithcr gcncraorbetwccnthe Partiesto the prcsentcase. [g9] COUNTER-MEMORIA LF LlBYA 101

"According ta the first part of paragraph 1 the natural prolonga-
tionofthe landterritory isthe main criterion. In the secondpart of
the paragraph the distance of 200 nauticaf miles is in certain
circumstances the basis of the title of a coastal State'."

"In so far howeveras the paragraph providesthat in certain cir-

cumstances the distance from the baseline, measured on the sur-
face of'the sea, is the basis for the title of the coastal State, it
departs £rom the principle that natural prdongation is the sole
basis of the title2."

4.48 Thus, the Court has urimistakablyaffirmedthat the natural pro-
longation ofthe land territory in10and under the sea remainsthe primary
basisfor the entitlement to continentalshelf rights,and that under Article
76ofthe 1982Conventionon the Lawofthe Sea there willbe a subsidiary

basisfor entitlementto continentalshelfrights overthosesubmarineareas
within the 200-milelimit whichare not coveredby the natural prolonga-
tion of the land territory (Le., by the continental rnargin as defined in
Article 76,paragraph 3 of the 1982Convention3).The subsidiarycharac-
ter of entitlement derived fromthe criterion ofdistance has been clearly

expressedin the wordingof Article 76,paragraph 1,whichStatesthat the
continental shelf jurisdictionof the coastal State comprises"the sea-bed
and subsoilof the submarine areas ...throughout thenatural prolongation
of its land territory to theuter edge of the continental margin" or to a
- distanceof 200 nautical miles fromthe Coast"where the outer edge of the
continental margin does not extend up to that distance". This wording

can only be interpreted in the sense that adjacency within the 200-mile
limit maybe relied on as a subsidiary basis forcontinental shelf entitle-
ment in respect of those submarine areas "w.here7t'he continental margin
doesnot reach the 200-milelimit.Article 76, paragraph 1,quoted in full,
reads as follows:

"The continentalshelfofa coastalState comprisesthe sea-bed and
subsoilofthe submarineareas that extendbeyonditsterritorial 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 fromwhich the breadth of the
territorial seas measured where the outer edgeof the continental
margin does not extend up to that distance."

'ConiinenrnShelf (Tunisio/f.ibynnArnb Jamnhi'riludgmenr. f.C.J. Reporrs 1982.
p.48, para.47.
a"Thecontinentamargin comprisesthe submcrgcdprolongatiof the lanmass of the
coastaltaie. andconsistsof sca-bc andsubsoilof theshelf,the slope andthe rise.It
doesnot includthe decoceanRoor withits oceanicridgesor the subsoilthercof."102 CONTINENTAL sHELF r1001

4-49 ln the present case, itis undisputed betweenthe Parties that the
submarineareas whichare to bedelimited between themare, geologically
speaking,areas of continental shelf. There is noroom, therefore,for the
applicationof the distance criterion either as a basis forcontinental shelf
entitlement or as an alleged criterion for delimitation2.

4.50 In the presence of such an evident legalsituation, it is hardly
understandablehowMalta couldassert in paragraph 25 1 ofits Mernorial
that "the Court considered the principle of distance to be relevant in a
situation in which the principle of natural prolongation did not provide

criteria of delimitation".The passagein the Judgment of the Court which
Malta citesas evidence[or this assertiondoesnot contain sucha sweeping
statement by the Court. On the contrary,the Court confineditselfto the
followingcautious remarks in respect of so-cailed "distance principle":

"The question thereforeariseswhetherthe conceptof the continen-
tal shelfascontainedin the secondpart of the definitionisrelevant
to the decisionof the present case. It isonly the legal basisof the

title to continental shelf rights-the mere distance from the
coast-which can be taken into account as possiblyhaving conse-
quences for the claims of the Parties. Both Parties rely on the
principle of natural prolongation: they have not advanced any
argument basedonthe 'trend'towardsthe distanceprinciple. The

definitioninArticle 76, paragraph 1,therefore anords no criterion
for delimitation in the present casea."
4.51 Thus, the Court did not have recourseto any distance criterionin

the delimitation betweenTunisiaand Libya, although it did findthat the
principleof natural prolongation did not,inthat case,providecriteria for
delimitation. The most that can be said is that the Court left it open
whether in thosecases wherethe title to submarine areas doesnot rest on
natural prolongation-but on rneredistance fromthe coast-the different

qualityofthe basisofcontinentalshelfentitlementmight eventually affect
thecriteria fordelimitationunderthe ruleofapplyingequitableprinciples.
Certainly, in the absenceof geomorphologicalor geologicalcriteria, the
role of geographical factors would become more dominant.

4.52 Finally,it willbenecessarytodeal withthe erroneous assumption
by Malta that entitlement on the basis of distance-as in the case of a

'AstheLibyanMernorialandSection C of Chaptcr2 abovehavediscusscdindetail,these
arcasofcontinentaslhclfare, howcverr.nabystrikingandunusualsea-bedandsubsoil
fcaturcsthatcanstitutcbasicdiscontinsividing the respective natural prolongationsof
'ThePMcditcrrancasnettioftheprcscntdispute, andinparticuthe constrictarcaof
the PelagianSea inwhich this delimitationtiosoccur.an arcawhcrca critcriooof
distancewouldhaveanyscope inanycvcnt.Sec LibyanMernorial,paras.9.03-9.08.
'ConlitunruSheu (Tunisia/LibyanArab Jarnahiriyu)Judgment,I.C.J. Rcprrs 1982,
p. 48, para.48.[1011 COUNTER-MEMORIAL OF LIBYA 103

fishing zone or an exclusive ewnomic zone of 200 miles-provides a
criterion infavourof the equidistanceor medianlineinthe delimitationof
such jurisdictional zones'. Here again, Malta confusesentitlement and
delimitation. The 200-miledistance from the coast determines onlythe

outward limit up to whicha coastal State may claimjurisdiction overthe
maritime areas beforeitscoast butdoesnotprovidecriteria for the delimi-
tation of these jurisdictional zones vis-à-visother States. Whether the
jurisdictionof the coastal State overthe maritime areas beforeits coast is
basedonnatural prolongation-as in thecaseof the continentalshelf-or

ondistance fromthe coast-as inthe caseof fisheryor exclusiveeconomic
zones-the equitable principleç whichgovern the delimitation of such
zones will,as far as geography is relevant, notbe matzrially difient in
either case. The considerationswhich have led the Court inthe Norrh
Sea casesto the conclusionthat the equidistancernethoddoesnotnecessa-

rilyproducean equitabledelimitationinal1geographicalsituations are no
less validin cases of economic zonedelimitation. The Court has never
accepted meredistance fromthe coastas an indicatorof the equitableness
ofa delimitation.Thetrends away fromequidistancereflectedinthe Third
Conference onthe Law of the Sea and in the 1982 Conventionclearly
refute any suggestionthat the criterionofdistance-which owesits origin

to the same Convention-somehow favours the equidistance method.
This is the subject of SectionA of Chapter 5 which immediatelyfollows.

lSctMilliesMernorial.ara.249. Surdythcnumbcrof Stattthatrnayhavecstablished
2WmilcexclusivecconomiczonaisnotrelevanttoawnsideratiofArticle76othe 1982
Convention in relatnthe continentaslhc(secinthiswnncction.para.10of Article
76). CHAPTER 5

NEïïHER EQUIDlSTANCE NORANYOTHERMETHODHAS AN
OBLIGATORY CHARACTER IN
CONTINENTAL SHELF DELIMiTATION

5.01 The Maltese Mernorialis remarkable for its repeated insistence
that the equidistance methodis obligatory in the present case. We are
told that anequitable solution must be based upon equidistance when
there are oppositecoasts and no "displaced islands or other unusual fea-

tures'". Weare told that the principleof non-encroachment necessitates
use of the equidistancemethode. And we are told that the "distance
principle" confirmsthe legality of the rnedian lines.

5.02 Theseassertionswouldhavebeenreckonedasboldifmadeduring
the 1958Geneva Conferenceonthe Lawofthe Sea. Beingmade in 1983,
despite the clear trends away from equidistarice manifestedin the juris-
prudence,in delimitationagreementsbetweenStates, and in the delibera-

tions ofthe Third Conferenceon the Law of the Sea, the assertions are
cxtrerneindeed. Forthe sakeofclarificationand accuracy,therefore, itis
necessary toreviewthe trends inthejurisprudence, in delimitation agree-
ments between States,and in the Third Conference. This willbeone in
SectionA immediatelyfollowing. Then SectionsBand C of thisChapter
will take up the progressivedisappearance of any distinction between
"opposite"and "adjacent" States (Section 8) and State practice relating

to continentalshelfdelimitation (SectiC) - al1of whichconfirmthat
neither equidistance noranyother methodhasanyobligatorycharacter in
continental shelf delimitation.

A. TheTrends Away FromEquidistance

1. AsRefiected in theJurisprudence

5.03 In 1969the Court renderedthe firstjudgment of an international
court expoundingthe principlesof law governingthe delimitation of the
continental shelf.It willbe recalled that, fallowinga detailed discussion
of the wholehistorof the rule ofdelimitationcontainedinArticle 6of the

1958Convention, theCourt noted that:
Maltese Mernorial.para.234(c).
aIbid.. para. 234nd Chapttr IX. Se3.This propositionis extraordinary,forifthe
Maltcsc intcrpretation of the principleof non-encroachmcntis one of gcncral application
how canany mcthodothcr than quidistance cver bcjustified?
'Ibid.. Chapter IX. Section 5. This is an equally cxtraordinary proposition whenone
considers that what Malta describes as thc "distanct principle* is bascd on the Third
Confcrcnccon the Lawof the Sca whichrcfuscdto endorsethe quidistance mcthod. The
factthat thcre isno-c"distanceprinciple"ininternationallawthat wouldapplytothe
dclimitationine prescnt case isdiscusscdat paras. 4.46-4.52,above. "In the light of this history,and of the record generally,it is clear
that at no time was the notion of equidistance as an inherent
necessity of continental shelf doctrine entertained'."

5.04 TheCourt alsoreferred iothe theoty that the equidistance"rule"
derived fromthe more basic,antecedent principIeof proximityand com-
mented that-

"...the theory cannot be said to be endowedwitn any quality of
logical necessityeither, [and] the Court is unable to accept it2".

5.05 This comment has immediaterelevance to the present Maltese
arguments, for Malta's reliance on the so-called"distance principle"to
support the legality of the median line is essentially a reversion tothe

argument made by the Netherlands and Denmark and rejected by the
Court. For "distance"and "proxirnity"are, in thiscontext,simplydiffer-
ent terms for the same idea. The Court had no hesitation in discarding
any suggestion that "adjacencya" meant simpIe praximity measured in
distance. Not surprisingly,therefore, the Court reached the conclusion
that-

".,.the equidistanceprinciple couldnot be regarded as being a rule
of Iawon any apriori basis of logical necessityderivingfrom the

fundamental theoryof the continental shelf ...'".
5.06 Inthe subsequent1977 Award by the Court of Arbitration in the

Anglo-FrenchArbitration it might havebeen assumed that, since both
France andthe United Kingdomwerepartiesto the 1958Convention,and
bound byArticle6,the equidistance methodwould have hadanobligatory
character. Yet the'court rejected this assumption. The Court held
that-

"...whetherundercustomarylaworArticle 6, it is nevera question
either ofcompleteor of nofreedomof choiceas to method; forthe
appropriateness - the equitable character - of the rnethod is

always a function of the pariicular geog~aphicâlsituationb".
5.07 The court of Arbitration adopted, not equidistance, but "the

fundamental norm that the delimitation mustbe in accordancewithequi-
table principles6". The relianceon this Award in the Maltese Mernorial
is, therefore, somewhat surprising. Consistently withits emphasison the
geographicaland other relevant circumstancesof the particular case, the
Court ofArbitration adopted a medianlineonly betweenthe two main and

North SeaConrinentaSheK Judgrnenr.l.C,Reports1969, p35.para.55.
Ibid .,36,para.56.
aFarthe Court'sreasonixc ibid..pp.29-32. pa40-46.
'Ibid.pp.45-46,para.82.
"Ibid.. 60,para.97.arion.Decisionof 30 June 1977 (C7438). p. 54para. 84.106 CONTINENTAL SHELF 11041

broadly sirnilar coasts'. The Channel Islands were givena 12-mile
"enclave"and the Scilly Islandsonly "half-effect". It isthereforedifficult
to seehowthis Award becomessupport for the Maltese propositionsthat
short abutting coasts have a "significant role" in delirnitation2;or that

islands have a "generally recognisedsignificance"in maritime delirnita-
tion3. If Malta is to inviteanycornparison,basedon the 1977Award, itis
with the Channel Islands and not the long, mainland coasts of either
Engiand or France in relation to which a rnedian line wasappropriale.

5.08 The 1982TunisialLibyacase was unlikethe two earlier cases in
that neither party invokedequidistance as a method likely to lead to an
equitableresult. On thecontrary, both partiesexpressly rejectedit. The
Court was not, therefore, required to rule on lhat particular rnethod.
Nevertheless the Court did state that-

"...there is no mandatory rule of customary international law
requiring delimitation to be on an equidistance basis, [but] it
shouldberecognisedthat it isthe virtue-though it may alsobe the
weakness-d the equidistance method to take full account of

almost al1variations in the relevant coastlines4."

5.09 The Court also declinedevento considerusingequidistance"as a
firststep",to be followedby such adjustments or modificationsas equity
might require3,and noted that equidistance should be applied only if it
leads to an equitable solution" Thus, on the jurisprudence as it stands,

there is no possible basis forthe Maltese assertions which attempt to
confer on equidistance a compelling,mandatory character: the case-law
goes in an entirely oppositedirection.

2. As Reflected in DelimitationAgreements

5.10 A full,detailed analysisof the State practice7relied on by Malta
- and of the practice not citedby Malta - willbe undertaken inSection
C of this Chapter, and in the Annexof delimitation agreements.

5.11 At the presentjuncture it isintended to show how,contempora-
neously with the rejection of equidistance as a mandatory rule by the

Anglo-FrenchArbitraiion. Dccisofn30June 1977 (Cmnd.7438), pp. 88-89,para181
andpp. 93-94, para196.
hfa>iesc~emorial. ChaptcrV. Section3.
Ibid., ChaptcrVI, Section l(1).
'ContinentalShcy (Tunisiu/i~byanArab Jamahiriyaj. Judgmenf, I.C.Reporrs1982.
p. 88,para. 126.
Ibid., p. 79. para.110:cited in Libyan Mernorial,p. 123.
'Ibid.. p. 79, para.109:cineLibyan Mcmorial, p. 123.
'Libyacmploysthe ierm"Statcpractice"inthis Countcr-Mcmorials convenicntshort-
hand tcrmfor use in addrcssinthebody ofState activiticsrcfcrrcdto in thc Malresc
Mcmoriol. The lcgalrelcvancof suchpraciiccisdiscusscin SectionC (1). below.[1051 COUNTER-MEMORIAO LF LlBYA 107

Courts (and also by the Third Conference on the Law of the Sea), the

reliance on equidistance began to decline in agreements of delimitation
between States.

Conlinentai Shelf Boundaries
5.12 Prior to the 1958 Conference there were relatively few agree-

ments. Yet,significantly,the firstagreement in 1942betweenthe United
Kingdom (in respect of Trinidad and Tobago) and Venezuela did not
adopt an equidistance line and made no reference to equidistance'.
Equally significantly, the Truman Proclamation by the United States

Presidenton 28September 1945'made noreferencetoequidistanceas the
basis fordelimitation with neighbouringStates, but referred only to the
need to reach agreement according to "equitable principles". The Soviet
Union/Norway agreement of 15February 1957=e , stablishinga "sea fron-

tier" in the Varangerfjord, made no mention of equidistance or of any
other specified principles, but estàblished a series of negotiated lines
betweenterminal points which,in relation to the continental shelfbound-
ary, were rnedian points.

5.13 The 1958 Conventionon the Continental Shelf did not establish
A detailed examination of the
equidistance as a mandatory method.
history of the text of Article 6 has already beenmade inthe Court's 1969
Judgment' and need notbe repeated here. Yetit needsto be ernphasised
that equidistance had only a relative role within Article 6-it operated
only in the absence of agreement and in the absence of"special circum-

stances". Asthe Court of Arbitration pointed out in 1977, the whok
purpose of inserting the "special circumstances" qualification was to
ensure that the useof the equidistance method wouldalwaysbe subject to
the overridingaim nfsecuring an equitable result5.The oppositionbetween

equidistance and equitable principles iç essentially a misconception, for
equidistance is simply a method - one of many - and the use of any
method is justifiable only whereit produces an equitable result.

5.14 Fallowingthe 1958Convention,agreements began to be reached
and understandably, for thoseStates parties tothe 1958Conventionwhich
sawno"specialcircurnstances"in their case, the equidistancemethod was

'Agreementin force22 Seplember1942.SecAnnex ofdclimitationagreements,No. 1.
ProclamationNo. 266710 FcderalRegisier 12303 (2 Oct. 1945). A copy of this Procla-
mationwss attachcdasAnnex80 to thc Libyan Mernorial.number of earlyunilateral
Statedeclarationsalsorcfcrrtdto boundarieswith neighStatcsbcingdetermineby
"equitabloprinciples":c.g.,Saudi Arabia,28 May (ST/LEG/SER.B /IJanuary
1951p,.22)Kuwait, 12Junc1949(ibid.p.26); Iran,19Jun1955.(ST/LEG/SER.B/6,
Decembcr1956,p. 26).
'See Annex of delimitation agrecmc, o. 4.
'North SeaConcineniaSlhelfJudgnent,1.C.JReports1969,pp.14-35.paras50-53and
pp.46-47, para85.
AngleFrench Arbiiration. DecisionoJ30 J1977 (Cmnd.7438). p. 48, paras.69-70;
p.54, para.84; pp. 59-para.97;and p.92, para. 191.108 CONTINENTALSHELF 11061

the rnethodpredominantlyadopted.Yet,as late as 1969,the Court had no
doubt that, despite the frequencyof this use and the numerous partiesto
the Convention - then some39ratificationsor accessions - there wasno
rule ofcustomary internationallawrequiringthe useofequidistance.The

Court, referring to the agreements adopting the equidistance principle
made by parties to the 1958Convention,stated:
"Frorn their action no inferencecould legitimatelybe drawn as to
the existenceof a rule of customary internationallaw in favourof

the equidistance principlel."
5.15 The practice of non-parties fully bore out this view. In 1960
Franceand Portugal, representingSenegal and Guinea-Bissau,reachedan

agreement on both the territorial sea and the continental shelfboundary,
with neither boundary based on equidistance'. In1968 Abu Dhabi and
Dubai agreed on a boundary which, without reference to equidistance,
reliedona line projected fromthe Coastsoas to leavethe Fateh oil-fieldto
Dubaia. In 1969 Malaysia and Indonesia agreed on a shelf boundary

which made no reference to equidistance and which in its third sector
(Points 21 to 25) givesincreasinglylesseffectto the Indonesian offshore
islands of Natuna Utara as these lie further away fromthe Indonesian
rnainland4.

5.16 In the tripartite agreement of 1971betweenIndonesia,Malaysii
and Thailand, the Malaysia/Thailand continental shelf boundary (from
thecommon.tripointto Points 1, 2, 3) is no1an equidistant boundaryand
noreferenceis madein the textofthe agreement to its basis5.The analysis

of the Geographerof the United States Department of State assumes itto
be "negotiated onthe basis of equitable principles6".Similarly, the two
agreementsnegotiated in 1971by the Federai Republicof Germany with
DenmarkTand the Netherlands8, followingthe 1969 Judgment of the
Court, did not adopt equidistance.

5.17 In1972Australia andIndonesiaagreedato a sea-bedboundaryin
the Timor and Arafura Seas, neither mentioningequidistance norusingit,
being infiuencedmore by the significantfeature of the Timor Trenchlo.

North Sea ContinenfaiShelfJudgmcni,I.C.J. Rcporr1969.p. 43, para. 76.
'Agreement byExchangcofNotes,26 April 1960.prcsumedtobcstillinforce. SecAnnex
of dclimitation agreements, No.6.
sAgrecmeni of 18 February 1968.Sec Annex of dclimitationagreements,No. 15.
'Agreement of 21 Dcccmber1971.in force Julyl1973.SecAnncxof dclimitationagrce-
ments. No. 29.
'Lirnitsin rSeas,Ofiiccof the Geographcr.DepartmenofState. WashingtoD.C.,No.
81, 27 Dcccmbcr1978,p. 6. A copyof this page is attacas DocumcnraryAnnex 31.
'Agreement of 28 January 1971.SecAnnex of dclimitation agreements,No. 10.
Qgreemcnt of 28 January 1971.SceAnnex of dclimitation agreements. No. 7.
'Agreementof 9 Octobcr 1972.supplcmentaryto the Agrccmcntof 18 May 1971. ,Sec
Annex of delimitationagreements, No. 24.
IoFordiscussionofthis featurcand the agrccmcntinmoredetailsa Libyan Mernorial,para.
6.48, and paras. 5.70-5.75,bclow. COUNTER-MEMORIAL OF MALTA 109

5.18 In 1974twoagreements were reachedwhichreflectedthe realisa-

tion that equidistance was neither the obligatory rule between opposite
States, nor likelyto produce an equitable result. The first was the agree-
ment betweenJapan and Koreawhich, without reference toequidistance,
in the area south of the Korean Strait where the shelf opensout into the

East China Sea, established a Joint Development Zone rather than a
boundary'. Four monthslater, in 1974,Sudan and Saudi Arabia agreed on
a CornmonZone of exploration for the resourcesof the sea-bed and sub-

soil, and not an equidistance boundary2.Like Korea and Japan, Saudi
Arabia and the Sudan are States with opposite coasts. Whilst ilmay be
said that these twoagreements are not relevant 10boundary delimitation,
sincethey didnot involveagreement ona boundary, it isequatlyclear that

they flatly contradict the assumption that, between States with opposite
coasts, the lawrepuiresa rnedianline.The solutionof a joint development
zone reflects the view of al least one of the parties that a median line

boundary was neither appropriate nor required by law, and the agree-
ments accept that view.

5.19 Contemporaneously with these agreements, an agreement was

reached between France and Spain over the Bay of Biscay3.This 1974
agreement was both a territorial seaand a continental shelfagreement. So
far as the latter isconcerned,it iscomposedof twosegments, the firstonly

dependingonequidistance:thesecond segment(Point R to PointT) being
negotiated onthe basisofequitableprinciples, reflectingthegreater length
of the French coastlineascompared withtheSpanish'. Moreover, likethe
other two agreements referred to above,the parties adopted ajoint devel-

opment zone, although this was done in conjunction with a boundary,
whichit straddles. The significanceof this agreement is considerable. For

'Agreementof 5 February 1974.See Ann~xof delimitationagreements, No. 35.
'Agreementof 16 May 1974. inforce 26 August 1974.See Annexof delimitationagree-
ments, No.37.
aAgreementof 29 January 1974,in force 5 April 19SeeAnnexof delimitationagree-
ments, No.34.
'LirnirsinrheSeas,No. 83,12February 1979.Analysis,pp. 13A1copyofthesepagesis
attached inDocumentarAnnex 31. An authoritative statementofthe raiionalefor French
practicecanbcfoundin the statement madebyMI. Guillaume.Directorof LegalAKairsin
the French ForeignMinistry, on the subjof"Les Accords de DélimitationMaritime
pas& par laFrance",madeto the Colloquede la SociéFranpise pour IcDroit Interna-
tional, ate Facultéde Droit dc Rouen on2-4 June 1983. He staicd at p. 10-
-..de nombreuxaccords de délimitation concpar la France rciicnnent comme
lignededélimitationla ligned'équidistau,géeen I'espècconformeiiIëquilé.
Ainsien va-t-ildes accordspassésavecl'Espagne(à proposde la dC!imitationde la
merterritorialedanslegdfe deGascogne), Tonga,Maurice.Sainte Lucic.l'Australie
(aussi bienans l'océanPacifiqueque dans l'océanIndien), Ic Royaume-Uni (à
proposde la délimitationdu plateau continental en Mancheorientale)."
"En revanche, d'autresdétimitationsimpliquaient pour paHvune solution
équitableque l'ons%carr~e1équidisranced.èsforsquecelle-ciéroirinéquirable
pourla Francei~upourI'Elai aveclequelnousnousdélimirions."
A copy of this page is attachDoctrrnenlarAnnex32.110 CONTINENTAL SHELF [logl

here we have twoStates which,eventhough parties to the 1958 Conven-
tion, felt it necessaryto depart from equidistance inorder to giveeffect to

equitable principles. Nothing could illustrate better the decline in the
relianceon equidistance. And, indeed,France wasto maintain its opposi-
tion to the propositionthat equidistance wassynonymous withan equita-
ble result in its dispute with the United Kingdom, a dispute currently in

negotiation at.the same tirne'.
5.20 In 1981 Iceland and Norway concluded an agreementZon the

continental shelf,thereby adoptingthe recommendationsofa Conciliation
Commissiona.In Article 1 of the agreement, the parties agreed that the
shelfboundary shouldcoincidewith the delimitation linefor the economic
zones,and they had previouslyagreed that the economic zoneboundary

should afford to Icelandthe full 200-mile limit'.Given that the shortest
distancebetweenlceland and Jan Mayen Island was290 miles,this neces-
sarily meant that the boundary between the two opposite islands lay far

north of any medianline-and ofcourseJan Mayen issrnallcompared to
Iceland.

Maritime BoundaryAgreements
5.21 The practice of adopting "maritime" as opposed to "continental

shelf' boundaries is more recentand issv-.tomatic of the desire of some
States to move towards a new legal régimewhich would eliminate the
distinction,made in 1958,betweenthe régimeof the continental shelf and

the rénimeof the superiacent waters5.The fact that such maritime bound-
aries do goverriboth s'iielfand superjacent waters doeç rnean that their
relevance to purelycontinental shelfboundarieshasto be approachedwith
caution. Subject to this caveat, however, itis noteworthylhat many of the

newermaritime boundaries demonstrated thesame movement away from
any notionthat the equidistance boundarywas required by law, or wasto
betreated as synonymouswith an "equitableresult".

'GUILLAUMEG , ., ocil., II. indicatesthat failurc to agree boundaries withltaly and
Spainrelativetoorsica.Sardinia andthe BalearicIslcsisinpart duc to France's opposition
toequidistance on the groundthat it wouldbcincquitablein the circumstaAccopyof
this pages attachcd iDocirrneniaryAnnex 32.
%Agreementof 22 Octobcr 1981.in force 2 Junc 1982.SccAnnex of delimitationagree-
ments, No. 70.
'For the Rcpori of the Commissionsce 2InternaiionaLcgal Maieriuls(1981). p. 797.
'Sec the prcamblcto thc agrccmcnt.The elernentof compromise,distinct fromthe bound-
ary, lay in the establishmentof a zone forjoint devclopment(not unlikc the JapanjKorea
and Sudanisaudi Arabiaarrangements- secpara. 5.18abovc). lcclandwasto haverights
ofparticipationin explorationwithinthe zonenorthofthe boundary. and Norway.riints
thc atea south of the boundary.
This trend had, of course,bcenanticipated by Chilc. Ecuador and Peru in the Santiago
Declarationonthc MaritimeZoneof28 August 1952;and, byan Agrcemcntof4 December
1954,thcscthrcccouniriesadoptcd maritimeboundarieswhichdid noiusccquidistanccbut
adoptedtheparallcloflatitude fromthe terminalpointofthcir landfronticrs(together with
the special ftature of a IOmile 'buffer zone" cithcr side of this paralAnnex ofc
delimitationagreements,Nos. 2 and 3.c1091 CoumER-MEMoRIAL OF uBYA 111

5.22 In 1975.Colornbia and Ecuador agreed a maritime boundary

making no reference to equidistance and adopting as the boundary the
parallel of latitude which intersected with the point at which the land
boundary between the two countries reached the sea'. In the following
year, 1976, Colombia concludedan agreement with Panama delirniting

maritime boundaries in the Pacific and the Caribbean. In the latter,
although utilising equidistance over the first sector, the method overthe
secondsector (Points H to M) wasquite different and involveda seriesof

"stepped" straight lines. Similarly, in the Pacific, over the secondsector
the boundary is the 5"00' N parallel of latitude and notequidistance.
5.23 In the following year, 1977,Colornbiacontinued the same policy

in its agreement with Costa Ricaz. No principles of boundary delirnita-
tion are specified in the agreement3,and the boundary is in fact two
straight lines,at right anglesto each other, lying betweenthe mainland of

Costa Rica and the Colombian islands of Cayos deAlbuquerque, Cayos
del Este Sudeste and lsla San Andrees.
5.24 Two years earlier this sarnetrend away from equidistance was

made manifest by African States. In 1975, The Gambia and Senegal
adoptedan agreement on a maritime boundary (or rather twoboundaries,
sinceThe Gambia has Senegaleseterritory to the north and south)'. Both

boundaries use a parallelof latitude, not equidistance.On the far side of
Africa the sametrend could be observed. On 17Decernber 1975, Kenya
initiated an Exchangeof Notes with Tanzania which led to an agreement
of 9 July 1976&T . his agreement embodied a maritime toundary in three

segments. The first, close inshore and out to the Il-mile limit, adopted
equidistance.The second (between the mainland and the island ofPemba
offshore) used equidistance, but from selected basepoints.But the third

segment, the boundary reaching out intothe Indian Ocean, wasa parallel
of latitude and not equidistance.
5.25 In 1978, Venezuela agreed a maritime delimitation with the

Netherlands, afJectingthe Netherlands Antilles (Aruba, Bonaire, Cura-
çao), which made no reference to equidistance but which was"based on
equitable principles6",The lineagreed did not utilise equidistance. In the

same year, 1978, Venezuela and the United States agreed a maritime
-o-ndary designatedas an "equitable" maritime boundary contajning no
Agreement of23 Augusi 1975.in force 22 December1975Sec Annex of delimitation
agreements,No.44.
'Agreement of 17 March1977.Set Annex ofdelimitationagreements,No. 50.
'Sec Linzirin~heSeos,op.ch.No. 84,p. 5forthe conclusion ofU.S.Departmentof
StateGeographu:"The ddirnitaiionappcatahavebecnnegotiateon thebasisof equita-
blc principlestablishcby agreement betweenthc two States."A coof this pagis
attachedinD~umeniary Annex JI.
'Agreementof 4 Junc 1975,in force27 August 1976. SAnnex of dclimitation agree-
ments, No. 43.
aSec Annex of ddimitationagreemcna,No. 46.
'Agrccmcnt0131 March 1978.See Aiinexofdclimitation agreemen, o. 57.112 CONTINENTAL SHELF [llol

reference to equidistance, based on geodetic lines'. Also in 1980 Costa
Rica and Panama agreed maritime boundaries in the Caribbean Sea and

in the Pacific'. No reference ismade toequidistance in the preamble, nor
to any other method: in the text, however, the median line is referred 10.
Yet the lines adopted are, in fact, straight lines which the United States
Geographer to the State Department characterises as "more akin to a

perpendicular to the general direction of the coast3".
5.26 Also in 1978,Australia concluded a comprehensive agreement

with Papua New Guinea, embracing maritime boundaries'. The equidis-
tance method was not used, either in relation to the territorial seas or
maritime jurisdiction: the boundary line adopted was a series of straight
lines between the two opposite territories.

5.27 Ifa broad conclusion hasto beframed as to the trend ofdelimita-
tion agreements, then it would be that the equidistance method neverwas

adopted asan obligatory method, that particularly after the Court's 1969
Judgment the incidenceofits usedeclined,and this trend wasaccentuated
in the newermovetowardsmaritime boundaries.This isnotto denythat in
relation to broadlysimilar, equal coasts (in the absence of other factors)

the method provedbothconvenientand consistentwithan equitable result.
It is this that accounts for the use of the equidistance method in the
agreements so far reached. Yetthere is clear evidencethat States felt no

obligation to adopt that method, and frequently discarded it where its
results would have proved inequitable.

5.28 There isyet a final,and important, pointto be made about delimi-
tation agreements. Toconcentrate on theseagreements is to lookat onlya
part of the practice. For in many cases agreement has not been reached
previouslybecauseone (or evenboth) of the parties to the dispute did no1

accept that, failing agreement, equidistance providedthe applicable rule.
ln short, the faci that there are many unresolved shelf boundaries is
eloquent testimonyagainst the Maltese contention that equidistance isthe
applicable rule'.

'Agreement of 28 March L978, in force 24 Novernbcr 1980.Sec Annex of delimitation
agreements.No. 56. Notc also the US.-Mexico Trcaty on Maritime BoundariesofMay
1978.See Annex of delimitationagreements,No. 23. This is not yct in force. but thc line,
recognisedas"practical and desirable" is not an cquidistanccline but a scriesof gcodctic
iincs.varyingonlyslightlyfrom the parallelof latitude from the landfrontiereasiwards.In
the Pacific.the gcodetic lincsarc more irregular.
Agreement of 2 Fcbruary 1980.in force11 Fcbruary 1982.Sce Annex of delimitation
agrccments. No. 64.
'Lirniis in the Seop.cit.No. 97.p.5. A copyof this pagc isattached as Documentary
Annex 31. With straight, adjacentcoasts, the perpendicularmeihodand quidistance will
producesirnilar rcsults. In ihis particular case, however,in the Caribbcan the two would
coincideonly ovcrthe hrst 32milesof a 100mileboundary:thc actual lincthus ignoresthe
offshoreislandsof lsla de Colon (Panama) and Punta Mona (Costa Rica). In the Pacific,
variousoRshoreirrcgularitiesare ignored.
'Agreementof 18 December, 1978.See Annex of dclimitationagreements, No.60.
'Sce para. 5.97, below.[lit] COUNTER-MEMORIAL OF LlBYA 113

3. As Reflected in theThird Conference
on the Law of the Sea

5.29 It is commonknowledgethat, throughout the Third Conference,
the discussionofthe principlestogoverndelimitationof boththe continen-

tal shelfand the exclusiveeconomiczonegaverise to acutecontroversy.In
Negotiating Group No. 7 the basic rift was between States favouring
specificreference toequidistance (though not necessarilyas an obligatory
rule) and those States favouringa simplereference to "equitable princi-
ples". Of the total membership of the Group, the rnajority werethose

favouringthe reference to "equitable principles"and not equidisiancel.
5.30 The fact that the majority wereoppoçedto any text recognising

equidistanceas a "general principlew isperfectlyconsistent withthe trend
away from equidistance reflectedin the jurisprudence and in State prac-
tice. Indeed, the "equidistance" group was atternpting, essentially, to
reversethe trend whichhad developed.In the Conferencethe Chairman of
the SecondCommittee quite properlysought to resolvethe impasse2by a

compromise formula which,in the termsofthe SingleNegotiatingTextof
7 May 1975,was as follows:

"Article 70(1 )

The delimitationof the continentalshelfbetweenadjacentor oppo-
siteStates shall be effectedbyagreementin accordancewiih equi-
table principles, employing, whereappropriate, the median or
equidistance lines and taking account of al1 the relevant
circurnstancesa."

5.31 This text was maintained in Article 71 of the revised text of 6
May 1976',and in what becameArticle 83 of the ICNT of 15July f977$.

With veryslightrevisions,this text remainedinbeingthrough the revision
of April 1980'and the officia1negotiating textof September 1980'.
'Within NcgotiatingGroupNo.7.some 26 States favourcd cquidistanccand 33 favourcd
"quitable principlcs". Of the former. 20 werein 1978GO-ssfDocumentNG 712
propûsinganquidistance formu"asa gcncralptinciplc(Thesupportersothiformula
constitutedthe so-called"gofu22",only21of whomco-sponsorcdDocumentNG 7/2/
Rcv. 1 of 25 March 1980). Thcrc wcrc 27 cesponsors of Documcnt NG 7/10,
which cnvisagcdan agreement "in conformity withquitablc principles". Document NG
7/10/Rcv.1of25March 1980modificdthe formulaslightlyto'in accorwithquitablc
principlcs"and was co-sponsorcdby 29 dclcgations,al1of thcm being membcrsof the se
calle droupof33". A copyofDOF .G 7/2/Rcv. 2and Doc.NG 7/10/Rcv.2 isattached
as DOtumrnloryAnnex33.
The impassewascltatly rtcogniscdinthe Reportofthe Chairmanonthe workofNcgotiat-
ing Group No. 7: NG 7/45. 22 August 1979.
U.N. Doc.AJCONF. 62/WP. 8. Part IICopiesof the successivedrafts of this article arc
attachcd to thebyon Memoriol in Anncx 100.
'U.N. Dac.A/CONF. 62JWP.BJRcv. 1JPart II.
U.N. Doc. AICONF. 62/WP. 10.
'U.N. Doc. A/CONF. 62/WP.lO/Rev.Z.
'U.N. Doc.AJCONF. 62/WP. 10/Rcv.3:thc tast phrabccame'and takingaccountofal1
circumstanccsprevailingin thearta concerncd".114 CONTINENTAL SHELF Il121

5.32 Yet, in the draft Convention of 28 August 19811,a significant
change occurred: the referenceto the equidistanceor median line disap-
peared entirely and Article 83( 1) read as follows:
"The delimitation of the continental shelf between States with

oppositeor adjacent coasts shall be effectedby agreement on the
basisofinternationallaw,as referredto inArticle 38ofthe Statute
ofthe International Court ofJustice, inorder to achievean equita-
ble solution."

The text adopted by the Conference virtually adopted this approach,
maintaining the Englishtext and makingslight, textual alterations in the
translations2.

5.33 The importanceofthis trend withinthe Conferenceismanifest. It
pointsquite clearlyto thedeclineofequidistance.It istotally incompatible
with the Maltese argument which seeks to reassert equidistance as the
rule, and to treat equidistance as synonomous withan equitable result.

B. TheProgressiveDisappearanco ef AnyDistinctionBetween
bbOpposite and"Adjacent" States
5.34 In Article 6 of the 1958 Convention on the Continental Shelf,

paragraphs I and 2 of that Article dealt separatelywith "opposite"and
"adjacent" coastsor territoriesa.Yet, as the text indicates, there was no
essential difference betweenthe two:the medianline"everypointofwhich
is equidistant from the nearest pointsof the baselines" was,as a method,
indistinguishable from "the principle of equidistance from the nearest

pointsof the baselines".In termsof geornetry,the exercise was the same.
The travaux préparatoires do not revealany indication that the States
represented at the 1958 Conference or, indeed, the International Law
Commission beforethat, sawthis distinctionashaving legal relevance.On
the contrary, the proceedingsof the Geneva Conferenceconfirmthat the

legal principleis the same in both cases.
5.35 In its draft articles the International LawCommissionhad made
a distinction between "opposite" an"adjacent" coastsforthedelimitation

ofthe territorial sea (Articlesand 14) aswellas for the delimitationof
the continental shelf (Article72). Article 12of the draft dealt wilh the
delimitationof the territorial sea between oppositecoasts,whileArticle 14
dealt with the delimitation of the territorial sea of two adjacent States.

5.36 At the 1958Conference,the Norwegian delegation proposedto
join the two rules together and to adopt one single rule, arguing that-

'U.N. Doc.A/CONF. 621122,7 October 1982.
'Note the contrast with Article I2f 1) of the 1958Convention onthScaeandtorial
ContiguousZone which. inprovidingalso for thethatabsent agreementor special
circumsianccs,the medianline evcry pointof whichisequidistantfromthe nearwt point on
the basclinesshouldapply todeterminethe boundary.madenoseparationbctwcenopposite
oradjacentcoasts. "...the problems dealt with in the two articles were so closely
interrelated as in some casesto be practically indistinguishable'".

and that:

"The mergingof articles 12and 14was merelya matter of draft-
ing;the substance ofthe two articlewasso similarthat theywould
be better combinedP."

5.37 Accordingto this proposal,a new rule was adopted by the First
Committeeof the Conference, dealingwith the problemsof the territorial
sea and contiguous zone,and the new rule became Article 12 of the
Conventionon the Territorial Sea andContiguous Zone.

5.38 In the Fourth Cornmittee, dealingwith the continental shelf, a
similarproposalwas madebythe delegateof Norway, whodrewattention

to the fact that the problemsdealt with in Article 72of thedraft (subse-
quentlyArticle6ofthe 1958 Convention)weresirnilarto thosecoveredby
Articles 12and 14.He suggestedthat any drafting change in the text of
Articles 12 and 14 should therefore be taken into consideration by the

Drafting Committeeand also be incorporatedinto Article 72'. Although
no delegationspokeagainst this latter suggestion,it was not followedup,
sothat the differences existingbetweenArticle 6 of the Conventiononthe
Continental Shelf and Article 13of the Convention onthe Territorial Sea
are more the consequenceof a Lack of coordination in drafting thanthe

resultofdifferencesbetweenStates on the principlesinvolvedinthe provi-
sionsof the two conventians4.

5.39 In its 1969 Judgment the Court adverted to this distinction
betweenparagraphs 1and 2 of Article 6, and saw in it not a legaldifier-
encebut a possiblepractical difference.It notedthat, withoppositecoasts

and whereeach State could laydaim to the areaas a natural prolongation
of its territory:

"These prolongationsmeet and overlap,and can therefore onlybe
delimitedby means of a medianline;and, ignoringthe presenccof

'UnitedNationsConferenccontheLaw ofthcScaOfici alcordsVol.III, p. 188.Acopy
of this page is attachcd in DocumentaryAnnex34.
'Idem.Oficia9Rlecords,Vol.VI. p. 92.s attachcd in DocumentaryAnmx 34.
'The Europcan FishcricsConvention of 9March, 1964. adopted alsa single rulc
(Article 7) for the delimitationof exclusivefishingzonesas bctwc~nneighbouringStalu.
whethcroppite or adjacent: "Whcrcthe coastsoftwoContractingParticsare oppositcor
adjacentto each othcr. ncitherof Contracting Partiesiscntitld. failingagreement
betwccnthem to the wntrary. to cstabfishericsrtgimc bcyondthe medianlinc, evcry
pin1 ofwhichisquidistant fromthc nearcstpinis towhwatcrlinesofthccoasofthe
ContractingParticsmnctrned." NewDirectionsint&w of theSea. Documena. Vo1.
OceanaPublications,NewYork.1973,p.42A copyofthis pageisattachcdas D#umentary
Annex 35.116 CO~NENTAL SHELF 141

islets, rocks and minor coastal projections, the disproportionally
distorting effectof whichcan be eliminated byother means, such a
line must effectan equai divisionof the particular area involved'."

TheCourt went on to Saythat if - contrary to its assumption that there
was a practical difference - there was no difference between the two

situations, the results ought to be the sarne: but the tendency of a lateral
equidistance line (between adjacent States) to leave to one party areas
that are the natural prolongation of the other confirmed the Court in its
impression that there was a practica! differenceP.

5.40 In his dissenting opinion under this Judgrnent, Judge ad hoc
Sorensen wrote:

"Thegeographical terrns used inthe twoparagraphs ofArticle 6
are not quite precise. Paragraph 1 refers to two or more States
'whosecoasts are oppositeeach other' while paragraph 2 refers to

'adjacent States'. These two provisionsthus seemto envisage two
distinct types ormodelsofgeographical configuration.The realities
of geugraphy, however, do not always conform tosuch abstract
models. The coastlines of adjacent States (i.e., States having a

comrnonland frontier) may confront each other asopposite coasts
in their further course from the point where the cornmon land
frontier meets the sea. Thus the sarne coastline mayfall under the
provisions of both paragraphs. Neither expressly nor implicitly

doesArticle 6 provideany exact and rational criterion for deciding
when, and to what extent, IWO coastlines are adjacent and when
they are opposite'."

5.41 In the 1977 AngIcLFrench Arbitrarion, the Court of Arbitration
entirely endorsed the International Court's viewthat there wasa practical
difference, but no legal difference.

"The rules of delimitation laid down in the two paragraphs of
Article 6 are essentially the same ..both the legal rule and the
method of delimitation prescribed in the two paragraphs are pre-

ciselythe same. Consequently, there is nothing in the language of
NorthSeoContinentalShclj;Judgmenr ..C.J.Reports1969,p.36, para. 57.Notthathe
Court also postulatcdthe situation of a third Statc on onc of the coasts. givingrisc 10a
separatc area of "natural prolongatiok"itrcaied in ihsarncway.
Ibid..p. 37, para. 58:
"If an the othcr hand. contrary to the vicwexpresscdin the prcccdingparitraph,
were correctto say tbat there is no asential diffcrcncein the processaf dclimitingthe
continentalshclfareas bctwetnoppositeStatcs and that ofdclimitationsbctweenadja-
centStates. thcnthc resultsoughtinprincipletobethc samcor ai lcastcomparable.But
infact. whercasa medianlincdividesequallybetwccnthe twooppositccountriesareas
that can bcrcgardedas beingthenatural prolongaofihctcrritoryofcachofthema
lateral cquidistanceline oftcn lcavesto onc of the Statcs concerncdarcas that are a
natural prolongation ofthe terriofrthe othcr."
'Ibid., p250. Article 6 to irnplythat in situations fallingunder paragraph 1the
virtuesof the equidistanceprincipleas a method efiectingan equi-
table delimitation are in any way superior to those which itpos-
sessesin situations fallingunder paragraph 2.Theemphasisplaced
intheNorth SeaContinentalShelfcases on thedirerence between
the situations of 'opposite' and'adjacent'States reflectsnot a dif-

ference in the legal regime applicable to the two situations but a
differencein the geographicnl conditionsin which the applicable
legal regime operates'."
5.42 lt was the geographical diflerence which, in its effect on the
geometryof the equidistancemethod, producedthe greater, potential risk

of inequity in laterally-related coasts rather than opposite coasts. In
explainingthis factor, the Court of Arbitration stated that-
"...this is simply becauseof the geornetricaleffectsof applying
the equidistanceprincipleto an area of continental shelf which, in
fact, lies betweencoasts that, in fact, face each other across that

continental shelf, In short, the equitablecharacter ofthe delimita-
tionresultsnot from the Iegaldesignationof the situationas oneof
'opposite'States but from ifs aciual geographical character as
such. Similarly, in the case of 'adjacent' States it is the lateral
geographical relation of the two coasts, when combined witha
large extensionofthe continentalshelfseawardsfromthosecoasls,

whichrnakesindividualgeographical features on eitherCoastmore
proneto renderthe geometricaleffectsofapplyingthe equidistance
principle inequitable than in the case of 'opposite'States. The
greater risk in these cases that the equidistancemethod maypro-
ducean inequitabledelimitationthusalsoresultsnot frornthe legal
designationof the situation as oneof'adjacent'States but from its

actual geographical character as one involvinglareraliy relared
coasts2."
The Court of Arbitration was not prepared to accept that whether an
equidistance delimitationwas equitable or no1dependeriupon wheiher it
wasa delirnitationbetween oppositeor adjacent coasts. Directly conrrary

to Malta's thesis, the Court of Arbitration held-
"..that the answer tothe questionwhetherthe effectof individ-
ual geographicalfeatures is to render an equidistance delimitation
'unjustified'or 'inequitable'cannot dependon whether the case is
legally to be considered a delimitation between 'opposite'or

between 'adjacent' States3".
5.43 Indeed, the Court of Arbitration was prepared to view the so-
called Atlantic Sector as a sea-bed area which, even if, legally, ittay

'Angle-Frenc Arbitration. Decisiof30 June 1977(Cmnd. 1438). p.112. para238.
'Ibid., p. 11para.239.
'Ibid.p. 113,para.240.118 CONTINENTALSHELF [1161

between "opposite"coasts, was moreanalogousto an area lyingoffadja-

cent coasts'. This was simply because, given the geographical circum-
stances,the boundary remained controlled,as an equidistance line,bythe
same control points in the Scilliesand Ushant over a very great distance,
thus aggravating any distorting effect producedby the Scillies.

5.44 A further factor which tended to minimise the distinction

between "opposite"and "adjacent" coasts was undoubtedly the recogni-
tion that, in many situations, a shelf boundary which began as a lateral
boundary becamea medianlineboundary (or vice versa) asthe geograph-
ical relationship of the coasts changed. As the Court noted in its 1982
Judgment in the Tilnisia/Libya case:

"The majorchange in direction undergonebythe Coastof Tunisia
seems to the Court to go some way, though no1the whole way,
towards transforming the relationshipof Libya and Tunisiafrorn
that of adjacent States to that of opposite States, and thus to
produce a situation in which the positionof an equidistance line

becomes a factor to be given more weight in the balancing of
equitable considerationsthan wouldotherwise bethe case2."

Thus, the Court in effect acknowledgedthat there is nosharp dichotomy
betweenoppositeand adjacent coasts. It isaquestionofdegreeand the one
situation maymergeinto theother, withoutit being possibleto specifythe
precisepointat whichthe changeof relationship occurs. But,rnostimpor-
tant, there is noparticular point in attempting to specifysuch a precise

point, because there are no legal consequences which flow from this
changeof retationship. The most that can besaid (as the Court noted) is
that equidistance can be given more weight, normally, in an opposite
coasts relationship,because it is leçssusceptibleto distortion than in an
adjacent coasts relationship. Yet this is simply one considerationto be

placedin the general balancingof al1the equitable considerations.It is a
viewquite at variance withthe Maltese argument whichwouldgiveequi-
distancesomekindof automatic role in situationsof opposite coasts,as if
lhere were some irrebuttable presumption of the equity of the result.

5.45 These same considerations which have influenced the way in
which the Courts have looked at the "opposite-adjacent" distinction
undoubtedlyinfiuencedthose responsible forthe preparation of the draft
of the 1982Law of the Sea Convention.The successive negotiatingtexts

'Anglo-FrencArbifraiionDecisioof 30June 1977 (Cmnd. 7438).p. 113,paras241-
242.
'p.88.para.126.Sealsoparas.5.92-5.9. clowwhcreexamplesofdelimitationagreements2,
arediscusseinthislight.Ci173 COUNTER-MEMORIA LF LIBYA 119

and the text finallyadopted forArticle 83(1) of the Conventiondeal with
opposite or adjacent coastsin the same paragraph, and governthem by

exactiy the same rule.
5.46 Of course, one of the reasons forthe change from the separate

treatment inparagraphs 1and 2 ofArticle6ofthe 1958Conventionto the
uniformtreatment in paragraph I ofArticle 83 ofthe 1982Convention is
that equidistance,as a method,has lostany claimkopriority (if indeed it
ever had one) as a method andis not evenmentionedin the finaltext of
Article 83.

5.47 As we haveseen,much of thejudicial discussionof the practical
difference between opposite andadjacent coasts was in the contextof the
equidistance method.The increased tendencyto distortion, to producean
inquitable result, inan adjacent Coast.situation arose when the equidis-

tance method was applied. But if sorne other method was applied, not
dependent on the simple factor of proximity of the line to the nearest
basepoints, this concern'with distortion disappeared. Hence,given that
contemporary lawdoesnotacknowledgeanyspecialclaim tothe use of the
equidistancemethod, it follawsthat the distinction betaeen adjacent and
oppositecoasts itself losessignificance.

5.48 The Maltese thesis is, therefote, misconceived,There has never
been any legal difference between opposite oradjacent coasts - even
assurningthe equidistancemethod wasthe appropriate melhod - except

in the purelypractical çensethat Courts acknowledgedthe increased risk
of distortion with a lateral line and therefore accepted theneed to offset
any such distortion by a careful balancingof al1the equitable considera-
tions. With other mekhods,noi eventhat practical differencecounted, so
the distinction betweenthe two situations was irrelevant. The true test
remains that of the equity of the result in the lighof al1 the relevant
circumstances. Malta wouldseek to evade that test by a presumption in

favour of equidistance, as betweenoppositecoasts, ignoringal1the rele-
vant circumstances and the equity of the result.
C. State PracticeRelating to Continental Shell Delimitatian'

5.49 As was brought out in paragraph 5.01 above, il is repeatedly
asserted in the Maltese Mernorial, in a number of different ways, that
equidistance is obligatoryin the present case. The main support for this
conclusion is claimedto liein a collectionof delimitation agreementsand

national legislationthat Malta classifiesas "State practice". Malta seems
tostopshortofa flatstatement that suchpractice establishe- at leastas
to States with oppositecoasts - that application of the equidistance
rnethodis a principleor rule ofcustomaryinternational lawin the delimi-
tation of the continentalshelf. Asha5beenshownin the previoussections

'See in.7top. 104,above.120 CONTINENT'AL SHELF Cii8]

of this Chapter, such a demonstration would be contradicted not only by
the jurisprudence of the Court but also by State practice itself, as wellas
by the trends manifested in the 1982 Convention. Malta has, however,

advanced an equally untenable proposition that in State practice "it was
recognised that island States and island dependencies wereentitled to a
median line delimitation whenever the situation was that of opposite
States'". As Malta's own recitation of delimitation agreements makes

clear, this issimply not true. This section willdemonstrate that there are
many exarnples of State practice where islands were not accorded a
"median line delimitation" with "opposite States"'.

5.50 Malta has also pushed the argument ont0 quite different terrain.
Malta has infact erected as a pillarof itscase infavourofequidistance the
claim that State practice providesan "objective" testofan equitable result

inthe presentcase. It isinstructive toquote frornthe Maltese Memorial in
this respect:

"There is an evidenkvalue in recourse to the practice of States in
like and comparable situations as an objective reflection of the
application of equitable principles leadingto an equitable result3."

The basic legal, factual and logical faltacies in this staternent need to be
exposed.

5.51 State practice isdeployedin three parts of the Maltese Memorial
in support of three different contentions4:

-the significant roleof short abutting coasts5;

-the entitlement of island dependencies and island States to
appurtenant shelf areas under customary international law6;and

-as an "objective reflectionof the application of equitable princi-
plesleadingtoan equitable result" and hence allegedlyestablishing
the equity ofequidistance in the present case;and as "an unequivo-

cal demonstration of the persistenceof the equidistance method of
delimitation in the case of opposite States7".

'Forcxamplc,lndonesiadidnotreceivefullquidistancc initsdclirnitatianwithAustralie.
Nor didthc DutchAntillesreceivea "medianLinedelimitation"with Venezuela,northe
PclagianIslandsof ltaly withTunisia. Many islandsin thc Arabian-Persian Gulf also did
notreccivcfullequidistanceeatmentwithStateslying oppositethem. Thcrc arc numcrous
other examplcs thatcould be cited; these arc discussedin tAnnex of delimitation
agrecments.
Maltese Memorial.,para.184.
'Maltadcvotcdover40 pages,alrnostone-thirdof iMemoriul, to adiscussion ofState
practicc.
Maliese Memoriul,paras.121-126.
'Ibid.. paras. 1557.
'Ibid.. paras.184-200.[JI91 COUNTER-MEMORIAO LF LIBYA 121

It is the first and third of these contentions to which the following
paragraphs are prirnarilyaddressed,although it willbe necessary totouch
upon the second pointas well.

5.52 Libya considersit incorrect to assert, as Malta does, that State
practice "givesthe strongest possible indicationof the appropriateness -
the equitable nature - of the rnethod of equidistance in delimitation of

the areas ofcontinental shelfwhichappertain to Malta and Libyarespec-
tively'."For what Malta is in fact arguing is that "the strongest possible
indication" of an equitable result dots nat derive from the weighingand
balancing-upof the facts and relevantcircumstances of the present case.

but rather is based on a method that third States have used onoccasions
(but by no rneans invariably) to delimit maritime areas that bear no
factual relationshipto the setting between Libyaand Malta. Since States
X and Y haveemployedequidistance,so the Maltesethesisgoes,equidis-
tance must also be applied in this case. Such a thesis not only mistakes

thelegalrelevanceofState practice,asshallbedemonstratedfurther onin
thisSection, italso ignores boththe relevantcircurnstancesof the present
case and the many examples where third States have chosen methods
completelyunrelatcd to equidistanceto delimit their continentalshelves.
Most seriousof ali, such an approach to State practice ignores whathas

beensoclearlyindicatedin thejurisprudence, namelythat each case must
bedetermined in accordancewithequitable principlesand on the basis of
its own particular factsP.

5.53 It is necessaryat this stage to cal1attention to a subtle shift that
occurs in Malta's presentation of State practice. In paragraph 195of its
Memorial Malta stressesthe importanceof focussingon situations which
are "legallycomparable"to that of Libyaand Malta. Despitethe ambigu-

ity ofthis staternent, the inferenceseemsto be that by "legallycompara-
ble" Malta rneanssituations involvingdelimitations betweenStates with
opposite coasts. Again in paragraph 21 1(b) Malta draws attention to
State practice in situations "legallycomparable" with the relationshipof
Libya and Malta as one of the "key elements" in Malta's position. But

thencornesthe shift - onthe secondto last pageofthe Maltese Mernorial
it isstated: "Virtually every relevantinstanceofState practice affirmsthe
equitable character of the method of equidistance in comparable gee
graphical situation?". Where in Malta's Memorial may be found any
discussionat al1of howthe examplesof State practice cited by Malta are

geographicallycomparableto thesetting betweenLibyaand Malta? Ir,the
geographicsituationbetween ltaly and Yugos1avia'-two mainlandStates
'Maltese Memorial, para.195.A similarcontentimade inpara. 10whereil isargucd
thatStatepracticprovidesconfirmatiihaquidistance is"equitabinthe prcscntcase.
'ConrinenralShelf (Tunisia/LibyArub Jomahiriya),Judgmenr. 1C.J.Reports1982,
p. 60, para.72. Sec also para.5.96 below.
' MalieseMemorial para.272(e). [Italics added.]
'Ibid., para.196(aandsec thernaponp. 97.122 CONTINENTAL SHELF Ci20]

with coastlinesofcomparablelength - similarto that between Libyaand
Malta? 1s the geographic situation between twosmall islands such as
Mauritius and Réunion' or between Tongaand the islandsof Wallisand
FutunaZor between Martinique and St. Luciaasimilar to that between

Libyaand Malta? However,beforediscussingspecificexamplesofState
practice ingreatcr detail, it is appropriate to review briefly the overall
relevanceof Statc practice from the legal pointof viewin the light of the
contentionsraisedbyMalta andofthe factthat a major portionof Malta's

case rests on such practice.
1. The LegalRelevanceof State Practice

5.54 State practice,whetherinthe formofnationallegiskationenacted

unilaterallyby a State or in the formofdelimitation agreementsbetween
twoor moreStates, must be viewedwith somecaution. This is primarily
because State practice, and particularly delimitation agreements,rarely
specifyal1the factorsconsideredby the parties in reaching the ultimate

solution. Care, therefore, mus1be used inthe manner in whichexamples
ofState practiceare interpreted. Asonecommentator,whoiscitedinthe
Maltese Memorinl, has noted:

"lt isnecessarytostate two caveats onthe useand interpretation
ofstate practice. First, andmostimportant,agreementson delim-
itation do not alwaysdisclosethe method ernployedto arrive at a

boundary line,if indeeda 'method' was usedl.n suchcasesthere is
obviouslyconsiderablelatitude forspeculation astohowthe agreed
boundary was located...."

"Second, the very existenceof an agreement impliesthat disin-
centivesto agreement, such as the presenceof islands,either were
regarded as insignificantby the parties or were overcome by inde-

pendently operating incentives such as the desire to exploit
resources.In either case,care must be taken in the generalization
of principlescontained or exemplifiedin these agreements to ail
delimitation disputes4."

5.55 This Court had the opportunity ta address the question of the
legalrelevanceof this aspect of State practice in the North Sen cases. In

the course of those proceedingsexamples of State practice were intro-
duced to support the contention that Article 6 of the 1958 Convention
expressed a rule of international law governing the delimitation of the
continental shelf. The Court indicated in its Judgment that the practice

Maliese Mernorial, para. 193(c)-the rnap on p. 90.
Ibid., par193(b )ndthe map onp. 89.
'Ibid., para. 193(f) andthe map on p. 93.
'KARL, D. E..ul~landand the Delimitationof thc Continental SA Framcwork for
Analysis",AmericaJournal ofInternaiionalLaw, Vo71. 1977pp.642-673at pp.651-
652,n. 35. Acopyof thesepages is attacasDocumentary Annex34. COUNTER-MEMORIAO LF LlBYA 123
r1211

cited wasriotof such a character that an inference couldbe drawn that
equidistancerepresenteda ruleof customary internationallaw. Evenas to
those agreements where the equidistance method apparently had been
used, the Court indicated that -

"...no inference could justifiably be drawn that [the States
involved]believedthemselvesto be applying a mandatory rule of
customary international law.There is nota shredof evidencethat
they did and, as has beenseen (paragraphs 22and 23), there is no

lack of other reasons for using the equidistance method, so that
acting,oragreeingto act ina certain way,doesnotofitselfdemon-
strate anything of a juridical nature'."

Thus, fromthe standpoint of legal relevance,the Court observedthat not
onlywouldthe practiceinquestionhaveto amount to a "settled practice",
it wouldalso have to be such that the parties involved believedthat their
delimitation agreementswererenderedahligatory by a rule oflaw.Asthe
Court stated:

"The States concerned must therefore feel that they are con-
forming to what amounts to a legal obligatiod."

5.56 It is hardly surprisingthat Malta ha$failedto offerany evidence
to suggestthat in the examplescited in its Memorial the partiesinvotved
believed they were obligated to employ the equidistance method as a
principle orrule of customary internationallaw. But this hasnot deterred
Malta from asserting - despite the clear indications to the contrary

discussedearlier in thisChapter - that there existsa "cardinal principle"
that "in the caseofa continentalshelfdividing oppositeStates, the delimi-
tation is normally by means of a median line3."

5.57 In Lihya'sviewthcre is nosuch "cardinal principle".State prac-
ticein the area of continentalshelf delimitation has not been so straight-
forward as Malta would suggest. In many instances the texts of the
agreements do not specifythe methodologyinvolvedin establishing the
delimitation. In others, the resulting boundaryclearly bears no relation to
equidistance,employingother methods instead.In some,equidistancehas

been modifiedor particular features enclavedor givenpartial effect. And
in still others, equidistance has been employed,sometimeswith explicit
confirmationby the parties that it achievesan equitable result under the
circumstancesof the particular case'.

5.58 In short, there isno "settled practice"involvingthe automatic use
of the equidistance method. And there iscertainly noindicationthat thoçe
States that have employedequidistance in delimiting their continental

lNorlh Seo ContinentalShelf, Judgmenr,I.C.J.Reports 19643. para76.
*Maliese Memorial. para133(a).
'Sec gcntrallSectionC. 2, bclowandthe Anncx af delimitaiionagreements.124 CONTINENTALSHELF [1221

shelves did so because they felt they were legally obligedto do so by a
principle or rule of customary international law. Rather, it may be sup-

posed that the States involvedestablished a particular boundary because
they viewedsuch a boundary as achieving a satisfactory result in the light
of al1 the prevaihngcircumstances. ln the words of the Court's 1969
Judgment-

"... the position is simply that in certain cases - not a great
nurnber - the States concerned agreed to draw or did draw the

boundaries concerned according to the principle of equidistance.
There is no evidence that they so acted because they felt legally
cornpelledto draw them in this way by reason of a rule of custom-
ary law obliging them to do so - especially consideringthat they

might have been motivated by other obvious factors'."

5.59 There is one final aspect regarding the legal relevance of such
practice raised repeatedly by the Maltese Memorial that cannot escape
comment. This is the assertion, phrased in a variety of ways, that "any
solution not predicated uponequidistance would bevery likelyto lead to a
real sense of unease in the international cornmunity" and that "interna-

tional tribunals shouldavoidanydisturbance of generallyaccepted princi-
ples on which the stability of existing delimitations depend2". In other
words, Malta is asking the Court to decide in favour of the equidistance
method in this case because, if it does not, this will somehow disrupt

previousagreements that may have employedequidistance in whole or in
part.

5.60 Tograce sucha proposition withthe title of an equitablc principle
or relevantcircumstance, as the Maltese Mernorialdoesin paragraph 234,
is unconvincing. Surely Malta does not need to be reminded that under

Article 59 of the Court's Statute, "[t] he decision of the Court has no
binding force except betweenthe parties and in respect of that particular
case". Becauseof theres judicata character ofthe Court's judgment, there
is no danger that the decision in the present case would result in the

'North Sea CuntinentulShelf. Judgment, J.C.Reports1969, pp. 44-45,para. 78. In this
respectthe Court followed.by analogy, theviewsexpressedby the PermanentCourt in the
Lotus case whereithad observed:
"Evenifthe rarity ofthejudicialdecisionbefound ..weresufficienttoprov..the
circurnstance alleged.it wouldmerely show that States had oftcn, in practice,
abstained from inçtitutingcriminalproceedings.and not that they recognizedthem-
selves asking obligedtodoso;for onlyifsuchabstention werebased ontheir being
consciousof having aduty to abstain woulbetpossibletospeakofan international
custom.Theallegedfact doesnotallowonetoinferthat States havebeencorisciousof
havingsuch aduty;on the other hand..there areother circumstancescalculatto
showthat the contrary is trueP.C.I.J. Series A, NIO, 1927,p. 28.
'Mollese Mernorial,paras.208 and 272(f).[1231 COUNTER-MEMORIAL OF L~BYA 125

undoingof previousdelimitation treaties!. To Libya's knowledge,there is
no example where States have completely renegotiated their maritime

boundariesafter this Court rejected the automatic use of equidistance in
either its 1969or 1982Judgmentse. Nor didStates rush to replot existing
boundaries after the Court of Arbitration enclaved the Channel Islands
and accordedthe Scillies one-half effectin its 1977Award. If Malta seeks

further reassurance onthis point,it needonlyrecallthe Court'sownwords
so recently articulated in its 1982Judgrnent:

"Clearly each continental shelf case in dispute should be consid-
ered and judged on its own merits, having regard to its peculiar
circumstances; therefore,no attempt should be made here to over-

conceptualizethe applicationofthe principlesand rulesrelating to
the continental shelf ."

2. Malta's Treatrnent of State Practice

5.61 The Maltese Memorial has divided upits discussion of State

practice in a curious manner. Two categoriesof practice involvingisland
States appear first in the Maltese Memorial. These are separated from
twomore sectionsdealingwith is\anddependenciesbya briefrecitationof
national legislation. The Maltese Memorial then concludesits exarnina-

tion of State practice with a discussion of the Mediterranean. In ail,
Matta reviewssome 29delimitation agreements and some17examplesof
national legislation. This, in Maltais view, "constitutes as complete a
rehearsal of such material as possible4".

5.62 At the outset, it is necessary toemphasisethat Libya considers

the examplesof national legislationlisted in the Maltese Memorial to be
irrelevant. Each of the provisions citedby Malta involvesunilateraliy
enacted legislation. Asthe Permanent Court observedincommentingon
the status of such legislation in its Judgment in the CertaiG nerman

Interes itiPolisU hpperSilesi c ase:
'Malta'srelianceonthe doctrincofstabilityand finalityin thescitlcmcntof boundaricsand
its citation to Court's Judgrnentin the casc concerningthe Temple of Viheur.
I.C.J.Reports 1962.p.6ar p.34 (seeMuliese Memorial,parasand2IOand notcs2and
3) ismisplaccdin this coritext.doesnotaccept that thcjudgmcnt of this Court in the
prcscntcase wouldconstitutea "continuouslyavailableproccss"- to usethe Court'swords
inthe Templecase- by whichthird Statmuld cal1into qucstiontreaty obligationsthey
had entercdintowithothtrStatesrcgarding thedelimitatofthecontinentashclf.
' It shouldbcnoted that on 25 November 1971thc United Kingdomsigncdscparate ?rot&
colswith the Netherlandsand Denmarkaltcringone pointoncachof the U.K.-Netherlands
and U.K.-Denmarkcontinentalshclf boundariesto takc into account the agrcerncntsthose
two States had entcrcd into with the FedcralRcpofGermany followingtheCourt's
Judgment in the North Sea cases. (Sce Nos. It and 13 in Annex of delimitation
agrccmcnts.)
'ConrinentalShclj (Tu#isia/Libyan Arab Jamahiriya), JudgmeI.C.JReports 1982,
p.92, para. 132.
'Maltese Memorial.para.195.126 CONTINENTALSHELF i1241

"From the standpoint of international lawand of the Court which

is itsorgan, municipallawsare merelyfacts whichexpressthe will
and constitute the activities of States, in the same manner as do
legal decisionsor administrative measures'."

Thus, the examples of national legislation appearing in the Maltese
Memorial are no more than simple facts that are not evidenceof an

obligationunder international law. Howthey are relevant tothe present
casehasyet to beexplainedby Malta, particularly whenit isnoted that of
the 17examplesgiven, 13concernonlyfisheryor economic zones without
referenceto the delimitationof the continental shelf.Only one-Malta's
1966 Law-concerns the continental sbelf proper, while the rernaining
three involveboth the shelf and economic zone.

5.63 As for the delimitation agreements cited by Malta, in order to
placeMalta's rather selective useof these agreements in the proper per-
spective, Libyahas decided to present to the Court a detailed, factual
analysis of al1the examples of existing delimitations known to it. This
material, alongwith maps of the agreementsinvolved,has been placed in
an annex so as not to overburdenthe Counter-Mernorial. Libya has not

tried to single out some agreements to the exclusionof others for the
simple reason that, in Libya's view, every delimitation situation is
characterised by its own particular physical setting and its own peculiar
facts. Asthe maps that are includedin the Annexof delimitation agree-
ments attest, no two delimitations are the same. Indeed, the body of
agreements taken as a whole testifies to the wide diversity of factual

situations presented by State practice and the correspondinglywidevari-
etyofsolutions reachedtoaccommodatethesesituations. Somecasesare
betweenStates with opposite coasts;some betweencoasts that are adja-
centto each other. Many, in fact, cxhibitcoastal relationshipsthat areto
someextent bothoppositeand adjacent, makingit difficulttoclassify them
asoneor the other. Islandsappear in a numberof contextsand havebeen

treated ina number ofdifferent ways. As is broughtout by the Annex,
many islands havebeenignored;othershavebeenenclavedor givenpartial
efi'ect;still others have been given full effect.In many instances, it is
difFicultto tell from the agreement itself,or the map, how a particular
island or coastal feature figured in the determination of the ultimate
delimitation line. What can be said is that not one of these agreement

presents a geographical settingtruly analogous to the present case2.

5.64 Libyadoesnotproposetocommenthereoneachexample of State
practice cited (or ornitted) by Malta. This will be left to the Amex.

SerieA, No. 7,p.19.esisinPolishUpperSilesMerilsJudgrncntNo.7.1926.P.C,I.J..
*Butsecpara.5.75,bclow. COUNTER-MEMORIAO LF LIBYA 127
i1251

Nonetheless, Libya has serious misgivingsover the manner in which the
Maltese Memorial has portrayed many of the examples, at Ieast some of
which deserve mention at this stage.

Delirniration AgreementsCilcd by Malla

5.65 The veryfirst map produccd inthe Maltese Memorialaepicting
the delimitation between Norway and Denmark (the Faroe
Islands)-tells a quite different story from that which Malta tries to draw
from the agreement'. Malta has employed this exarnple in an effort to

showthat "the relatively small feature constituted by the Faroesgenerates
as much appurtenant shelf as the mainland of Norway2." The impression
is thus conveyedthat c.tiny group of islands lyingopposite a large main-
land receivesthe same amount of shelf as the mainland, and the implica-
tionisclear thatMalta believesthis situation to be analogousto the setting

of the present case.
5.66 But is the entire mainland of Norway really germane to the

delimination with the Faroes? Or is it only the very limited promontory
on the Norwegian coast lyingdue east of the Faroes that comes into play?
1sthis delimitation to be lookedat in isolationwithout regard to delimita-
iionsbetween neighbouring States? South of that promontory it rnaybe
seen that the Norwegian coast has nothing todo with the Faroes sinceit

faces the Shetland Islands and Scotland and has thus figuredin Norway's
delimitation with the United Kingdom3. North of that point the Norwe-
gian coast fadesawayto the east and hasnoefTect on an equidistance line.
Indeed, thedelimitation linein this instance is inal1likelihoodgovernby
a single pointon the Norwegian coast. The relevant stretch of Norway's

coast might thus be considered to ben3 longer than that of the Faroes.
What is more, the total length of the boundary line is only some 50-60
kilornetres long,orlessthan the cornbinedlength of the east-facing coasts
of the Faroes. For Malta's claim IObeanalogous, tbe Maltese proposed
line would have to be shorter than the south-facing coast of Malta which,
as.has been pointed out above, is only about 28 kilometres long4. But

@ Malta's claimas depicted in Figure A of its Memorial is over 250kilorne-
tres long! Clearly there is no parallel between the two situations.

5.67 If the preceding paragraphs have treated the Denmark-Norway
delimitation in somedetail, it is only ta illustrate the danger involvedin
over-generalising particular examples of State practice and of drawing

'The map appcarsat p. 38 of Ma/~cseMemoriaL Mop 8 facingp. 124 portraysthis
Denmark(Fames)-Norwayagreementncrnaybcfoundat p. 39, para. 125.of thc Moltese
Memorial.
'MalrrseMcmoriolp,ara.125.
'Sec theNorway-UnitcdKingdomagramcnt appearingat No. 8 iAnner ofdelimita-
tionagretmcnts.
'Sec para.2.34above.128 CONTINENTAL SHELF [l261

hasty conclusionsor comparisons from thern. Similar commentscouldbe
made about many of the examples chosen by Malta. For instance, how
muchofthe coastof Iran may besaid toberelevanttoits delimitation with

Bahrain-a delimitation which in any event is not based exclusivelyon
equidistance5. The answermustbeverylittle-given the presenceofthird
Statesand third State delimitations inthe irnrnzdiatevicinityand the fact
that the delimitation line is only 54 kilometres long6. It might also be

asked, where is the analogy between the geographic setting of the Cuba-
Mexicodelimitationwiththe situation betweenLibya and Maita7? In the
former case, the delimitation esscntially tookplace between two coastal
promontories withsimilar configurations;in the latter, the delimitation is

ta occur between a groupof verysmall islandsand an extensivecoastlinea.

5.68 In addition to this tendency tocompare situations which, factu-
ally,simplyare not the same, the Maltese Mernorial alsotends to overlook

key aspects of agreements whichare unfavourable to Malta's case. The
delimitation betweenthe Maldives andIndia is an excellentexample. As
inother cases,Malta'sdiscussionof this treaty isverybrief. It Statesonly
that the boundary approximates a rnedian line and that "much of the

Maldivesgroup lies at a considerable distance frorn the coast of lndiag".
The impressionthe Maltese Memorial tries to conveyis that of a group of
tiny islands(Maldives) receivingfullequidistanceina delimitationwith a
gigantic rnainland State (India). What the Maltese Memorial neglects

to point out, however, is that if the equidistance method was ernployed
(and there is no indication in thetextof the agreement stating this isso),
then most of the delimitation line wasgovernedon the lndian side not by
its mainland coast, but by the tiny islandof Minicoylyingwellout to sea.

AsMap 9makesclear, the India-Maldivesboundaryliesforthe mostpart
betweensmall islandssituated on both sidesofthe line. The only portion
ofthe mainland lndian coastthat conceivably couldhavecorneinto playis
the extreme southwestern portion. Yet this stretch of coast is no longer

than the coasts of the Maldives that face it.

5.69 Malta's characterisation of the Australia-France (New Caledo-
nia) agreement isevenlesscandid. Weare toldthat "withrespectto New
Caledonia, the resulting boundaryis an equidistance line more than 1200

milesinlength whichgivesfulleffectto New Caiedonia and, additionally,
'Sce theMalrese Memorialp,ara. 185(a) ,nd theAnnex of delimitation agreements.
No. 25.
SeeAnnex of delimitation agreemen, o.25.
'Sce theMalte~eMemoriaL para.1t?S(t>.ndAnnex ofdelimitation agreement, o. 47.
Othercxamplcscitcd byMalta. but bearingabsolutelyno physical resemblanceto the
presentcase,havebeen notcdatpar5.53 ,bove. Tothesemightbeadded the agreement
betweenlndonesiaandSingapre whichinvolveda delimitation oftheterrscaand not
thecontinental shelf, andtetween the UnitedKingdomand Venezuelain the Gulfof
Pariawhich,in any cvent,predatcde modernconceptof the continentalshelf.
*MalieseMemorinl,para 185(c).[l2?I COUNTER-MEMORIA OF LlBYA 129

utilises a number of uninhabited reefsas basepoints'." Accepting this
statement asit stands,the impressioncreated isthat the fairlysrnallisland

of NewCaledania receivedfullequidistancetreatment forover 1200miles
against its much larger, continental neighbour, Australia. But the facts
'arequitedifferent. For theagreementitself makesnomentionof equidis-
tance and only indicates that the parties recognisedthe need "to efîact
preciseand equitable delimitation2". Moreover, the delimitation line is
notan equidistance linebetween New Caledonia and the Australian main-

land as Map 10 reveals. If anything, the line is roughly equidistant
between a seriesof minute French islandsand reefs lyingiothe east ofthe
boundaryand a seriesofequallyminuteAustralian islandsand reefs lying
to the west. As for the southern sectoofthe line,it doesnot appear that
eitherNewCaledoniaor,much less,mainland Australia hadany effectat
al1on the boundary. If the delimitation lineis equidistant betweenany-
thing, it is between NorfolkIsland-a srnall island belonging toAustra-
lia-and the tiny reefslyingsouthof Nëw Caledonia. The contention put

forward by the Maltese Memorial that this situation is both "factuallyW
and "legally" comparable to the Libya-MaIta setting is cIearly incorrect.

5.70 Malta's treatment of thc Australia-Indonesia delimitationis also
misleading. The Maltese Memorial reports that the Australian-lndone-
sian boundary "lies betweenthe trijunction point A3 and extends west-
ward to point A16",and that "betweenpoints A3 and AI2 the line is in
accordancewith eguidistancea". These points rnay be seenon a map of
the delimitation (Map II) facing the followingpage. Libyamight well
ask whathappenedtothe westernsegmentofthe Australia-lndonesia line

lying between points A17 and A25 which the Maltese Memorial haç
preferred to overlook? But there are more significant aspects to this
example which deserve to be emphasised first.

5.71 There cannot befoundin thetext of the agreement anyreference
to equidistance. However,even if the boundary betweenpoints A3 and
A12 does approximate a line determined according tothe equidistance
method,sucha baundarymust beviewedin the context af the physical
characteristics of the area within which the delimitation took place. As
Map II shows,the segment of the line joining pointsA3 and A12 falls
between arather large promontory extendingfrim the north ofAustralia

and thecombinecicoastsof NewGuinea (the part belongingto Indonesia)
and the Aru Islands.The sea-bed here is shallowand regular sith maxi-
mum depths of only about 150 metres, and the coasts of the parties are
comparableinlength.Given thesefacts, it isnot surprisingthat ihe States
involved arrived at a boundary that does not deviate radically from
equidistance.

'Maliese Memorialpara.19(f).
' [Italiaddcd.] SeAnncx of delimitatagreements,o. 71.
'Maliese Memorialpara.187(c).130 CON~NENTAL SHELF il281

5.72 Further tothe West,however,the physicalcharacteristics become

quite different. Betweenpoints A12 and A16, for example, the delimita-
tion linefalls between the relatively small Tanimbar Islands, on the one
hand, and the Australian mainlandand the moresizeableMelvilleIsland,
on.the other. Not only js the portion of the Australian coastfacingthis
area longer than that of Indonesia;the sea-bed morphologyalso beginsto
change. Just south of the Tanimbar Islands the sea-bed plunges rapidly

into a depression- vividlydepicted by the bathyrnetric contours on the
accompanying map - known as the Timor Trough. As close as 10-1 5
milesfromthe Tanimbarcoastthe sea-bed reachesdepthsof 1500metres.
Further West,belowthe Sermata Islands, these depths increase to some
2000 to 3000 metres.

5.73 Asmight beexpected,the delimitationlineinthis sectorbears no
relationship to amedian line. The boundary fallssubstantially closer to
Indonesian than 10Australian territory, and there is clear evidencethat

the partiestookintoaccount both geomorphologyand petroleum activities
in negotiating thisline1.
. 5.74 As for the segment of the Australia-Indonesia delimitation

ignared by the Maltese Memorial (between points A17 and A25), it too
deviatessharply fromequidistance.Again, the geomorphologyof the area
appears to have playedan important role in the delimitation owingto the
presenceof the Timor Trough,just south of Timor, whichreachesdepths
of between 2000 and 3000 metres.

5.75 As a result, for well over half of its distance, the Australia-
lndonesiadelimitation utilisesa method of delimitation that has norela-
tion to equidistance.Geomorphoiogyundoubtedly affected significantly
the overallsolution.Thus, if any exampleof State practice cited by Malta

bearsa similaritytothe settingwithinwhichthe Libya-Malta delimitation
is to occur, iisthat portion of the Australia-lndonesia boundary falling
betweenthe Australian mainlandontheonehand, andthe smallerIndone-
sianislandsonthe other. Andyetthe Maltese Memorialhasdismissed this
example with a single sentence stating: "Westward of a point A12 the

alignment is a negotiated boundaryP."
Delimitation Agreementsin the Mediterraneatt
5.76 It is apparent that Malta attaches importance to delirnitation

agreements in the Mediterranean since the Maltese Memorial devotesa
separate section to this region. It is there stated that "the practice of
coastalStates of the regionprovidessignificantindicators as to the proper
basisof an equitable solutionin the present ptoceedings4". Libyarejects

'Maliesc Mernorial.parl87(c)..48andfn. 1at p. 100.
aA map oftheMcditerrancadnepictingexistingdelimitationboundhasbccnincluded
in th+et sectioof Vol.IIIof thisCountcr-Mernorial.
'Maltese Mernorial,para.200.[1291 COUNTER-MEMORIAL OF LlBYA 131

such a propositibn. For if the achievementof an equitable result in any
particular case depends on the proper balancing of the relevant circum-
stancesof that case,howdoesa solutionreached in adelimitationbetween
two third States - involvingas it inevitably must a difierent set of
relevant factors- provideany "significantindicators"as to what isequi-
table as between Libya andMalta? Nonetheless,since Malta has singled

out State practice in the Mediterranean, it isnecessa'ryto examine theçe
agreementsone by oneeventhough theyrepresent a srnallfraction of the
total nurnber of delimitations remaining to he agreed in the
Mediterranean'.

Italy- Yugoslavia

5.77 The Agreement signed betweenltaly and Yugostaviaon 8 Janu-
ary 1968 is the first example of Mediterranean practice discussed by

Malla. Map 12 revealsthat these twoStates enjoy longstretchesofcoast
running roughlyparallel to each other alongvirtually the entire lengthof
the Adriatic Sea. it also showsthat, with the exceptionof the area around
the southernmostsectorofthe delimitation line,the sea-bedisshallowand
relatively featureless.Can thisarea reallybedescribedasa situation "like
and comparablez"to that between Libyaand Malta? If Libya is to be

comparedwithYugoslaviainthisexample,doesMalta resembleItaly? Or
isthe cornparisontheother wayaround, with Malta to be compared with
Yugoslaviaand Libya withItaly? Similarly,isthe sea-bedinthe twocases
really the same? Or is Malta's position perhaps more akin to the small
YugoslavIslandsofPelagruza and Kajola which received12mile enclaves

under the terrns of the agreementa?

Italy- Tunisia

5.78 The Italy-Tunisia Agreement' is another exarnple whichLibya
fails tosee aspresenting a"like and comparable situation" to the Libya-

Malta setting.Ifthe coastsofthe landmassesinvolvedin the Italy-Tunisia
exampleare examined, it will be seen that the Tunisian coast relevant to
the delimitation - that is, from the Algerian border roughly toRas
Kaboudia - is approximately thesame in length as the combinedsouth- .
facing coasts of Sardinia and Sicily. Onceagain Libya wouldask: does

'Onecomrncniatorhasobservedthat at least32ùoundarieswobenecessarytocomplete
theMediterrancandelimitation.SceBASTIANELLI.'BoundaryDclimitationinthcMed-
itcrrancanSca"Marine PolicyReporrs, Vol.5, No. 4., 1983.pp. 1-6at p. 3.
*MalrcseMernorial,para.184.ThisAgreementis dcaltwiih in Annexof dclimitation
agreements,No. 14.
formuladuringtheThirdConferenceonthesLawiof ihc Sca,abandonedcquidistaocewithe
rwpcct to thcse islands. In fact, equidistanceis not even mcntioncdin the text of the
agreement.
'Secthe Annexofdelimitatianagreements,No. 2fhisdctimitationisportrayeMap
13. 132 CONTINENTAL SHELF il301

Malta cast itselfinthe roleofTunisia orItaly inthisdelimitation? Can the
coastsof ltaly and Tunisiarealisticallybeconsideredcomparableto those
of Malta and Libya?

5.79 Of course,the more significant aspectof the Italy-Tunisia delimi-
tation Iies inthe treatment accorded tothe Italian islandsof Pantelleria,
Lampedusa, Linosa and Lampione. Even though they lie "opposite"the

Tunisian mainland, none of them received fulleffect under the equidis-
tance method. Eachwas accordedeither a 13or, in the caseof Lampione,
a 12-milebandof territorial waters and continentalshelf,instead. In fact,
the partial enclaves establishedaround the ltalian islands havethe eKect
of causing morethan half of the overalldelimitation line to deviate from

equidistance.
5.80 Finally, Libya questionsMalta's assertion that the Italy-Tunisia

agreement, as wellasal1ofthe agreementscited in the Maitese Memorial,
concern States on the "same shelf'. This claim is made in at least two
difierent places in the Maltese Memorial', and although the Maltese
Memorialdoesnotclarifyjust what ismeant bythis term, it doesnotoffer
any evidence that this is so. The Italy-Tunisia agreement provides an

examplein point.Ascan be seenfrom Map13 facingthis page, Italy and
Tunisia donot abut on the same continentalshelf,al least in the physical
sense. Indeed, thisfact was noted during the intervention proceedingsin
the Tunisia/Libyacase when discussionsbetween ltaly and Malta were

revealedin whichit was asserted that the Pelagian Islands restedon "the
extension seawardsof the Tunisian landmasse."

5.81 Malta's treatment of the agreement between ltaly and Spain is
verybrief indeed.As Map 14illustrates,the delimitationlinefallsbetween

Sardinia on the one hand and the Balearic Islands on the other. No
extensivernainland Coast isinvolvedon either side, making it difficultto
perceivehowthis exampleof State practice presentsa situation "Iikeand
comparable" to that between Libya and Malta.

5.82 If referenceismadeonceagain to Map 14,it willalsobeseenthat
. the sea-bedbetweenSardinia and the Balearicshas quitedifferentcharac-

teristics frorn the sea-bed between Libya and al ta.In the former case,
'SecMolteseMcmorial.paras. 185 and198.
'Libyaquestions whcthcarnumbcoftheexamplesgivenby Maltarnayaccuratelybesaid
toinvolveStatesonthe"sameshelf. Forexample,doAustraliaandlndoncsiarwt onthe
sameshelf(Maliese Memorial,p. 75;Annexof dctimitatagreements,No.24)? Simi-
larly,doCuba andthe UnitedStates (Maltese Mernorial,p. Anncx of delimitation
agreements, o.53); thCook IslandsandAmcricanSamoa(Maliese Mcmorial, p.91;
Anncxofdelimitaiioagreements, O.66); NewCaledoniaandAustralia(MalteseMemo-
rial,p.94;Annexof delimitation agreemtso,.);orVenczuclaandeithcrtheDomini-
can Republior PucrtoRico (Maliese Mcmorial,pp. 70 and83Annex of delimitation
agrccrncntN,os.61 and56) restonthesamcshelf ?
aSeeAnnex of delimitation agreemets,. 36.[I3l] COUNTER-MEMORIAL OF LlBYA 133

the bathymetric contours indicate a relatively featureless plain with no
marked discontinuities lying betweenthe two groups of islands; in the
latter, the bathymetry shows a series of troughs and channels passing
south of Malta'.

5.83 There is one aspect of the Italy-Spain delimitation which might
be considered to be cornmon to the Libya-Malta situation. This is the
questionof the presence of third States. The Italy-Spain agreementspeci-

ficallyleaves open the final determination ofthe northern and southern
terminal points on the line, presumably because delimitations involving
Algeriaand France have yetto beestablished.Similarly,the delimitation
in the present case willhave to take into account existing or potential
delimitations.

Italy- Greece

5.84 The final Mediterranean delimitation rnentionedin the Maltese
Memorial involvesthe agreement signed by Italy and Greece on 24 May
1977.A mapdepictingthe course ofthis delirnitation linemaybefoundin
theAnnex ofdelimitation agreements, No. SIe. This rnapillustrates how

neither the coastal relationshipnor the sea-bed betweenltaly and Greece
is in any way similar to the situation between Libya and Malta. In the
former case,the delimitation lin- which asMaltapointsout isbasedon
equidistance - delimits areas between coasts of roughly equal length.
Moreover,there are nonoticeable geomorphological discontinuities in the

area whichmight otherwise haveaffectedthe linea. In the presentcase, the
physicalcharacteristics are quite dimerent.

5.85 Giventhegeographicalandgeomorphologicalsettingofthe Italy-
Greece delimitation, it is not surprising that equidistancewas employed,
particularly when it is recalled that both ltaly and Greecesupported the
equidistanceformula as a general rule of delimitation (and co-sponsored
Document NG7/2 in this respect) during the discussionsat the Third

Conference on the Law of the Sea.
Italy- Malra (Provisional Solution)

.5.86 The Maltese Memorial has also mentioned the provisional
arrangement between Malta and Italy invoivingthe area lying between
Malta and Sicily. Fromthe exchange of notesbetweenthe twoStates. it is

It mayalsok notedthabothltalyandSpainwercsupportersof theequidisianceformula
fordelimitationandCO-sponsofDocument NG 7/2 at theThirdConferencctheLaw
of theSca (attacbcd aDocurnenraryAnmx 33). Accordingto one Spanishauthority,
neitheridcprcscntcanyreservationsorobjectionstothe use of thequidistancc rnethodin
thiscase.
Mcmorial.A discussionof thisagreementrnbcfoundaiparas.9.46-9.49 of the Libyan
MemoriaL
'Libyaquestions.hawevewhcthtrttalyandGreccmay bcsaidtabutonthesameshelfin
thephysicalscnsas theMallese Mernorioimplics.134 CONTINENTAL SHELF 11321

unclear preciselyhow far the provisionaldemarcation extends. If refer-
ence is made, however,to Italy's Note Verbaleto Malta dated 29 April
1970,it may be surmised that the arrangement is quite limited in scope,
confinedto the area "betweenthe northern coastsof Malta and the oppo-
site Sicilian coaslsl". This area, it may be recalled, corresponds to the

very shallowarea of sea-bed lyingon the Ragusa-Malta Plateau whichis
visible onMap 4 facing page48. It isan area that ishardly comparableto
the sea-bed lying betweenMalta and Libya.

5.87 In Libya'sview,each exampleofState practice inthe Mediterra-
nean - and, indeed, everyexamplecited in the Maltese Memorial - can
bedistinguished fromthe physicalsetting of the present case.The exami-
nation of delimitation agreementscontained in the Annexof delimitation
agreements further demonstratesthe differencesin al1the agreements. At

this stage, therefore, it is not felt necessary tocomment on ail of the
remainingexamplescited by Malta. What do deservecomment, however,
are some ofthe agreementsMalta haschosennottodiscuss,fortheseserve
to illustrate the selectivenature of Malta's reliance on State practice.

DelimitafionAgreements Omitted/rom Malta's Memorial

5.88 The selectivenature of Malta's handling of delimitation agree-
ments may bat be illustrated byexaminingsomeof the agreements Malta
has elected to ignore.A numberof examplescometo mind.These include
the western sectorof the Australia-Indonesia agreement passed over by
Malta and discussedabove2.Another striking omissionis the lack of any

reference to the agreement between the Netherlands and Venezuela
regarding the Dutch Antillesa.This agreement hardly fits the Maltese
thesisthat equidistanceisa 'principlenof delimitation regardingopposite
coasts or islands. Its Preamble Statesthat the delimitation is "based on
equitable principles" and the resulting boundary is not an equidistance

line.Instead, the parties ektablisheda wedge-shapedarea of shelf for the
Dutch Antilleswhich accorded the islands lessthan half the area they
would otherwise have received had the equidistance method been
employed' .

5.89 Another curious omissionis the agreement between Japan and
the Republicof Korea. The agreement itselfdoesnot specifythe method-
ology used inarrivingat the boundary.The northern sector,however,does

fallmore or lessequidistant from the territory of each State. As Map 15
shows,this sector delimitsareas between stretchesof coastsof the parties
whichare roughlythe same in length. In contrast, the southern sectorof

=Sae paras.5.70-5.75,abov,.Mernorial.
'Forthetextandamapofthisagreemen tettheAmexof delimitation agreements.o. 57.
'Inihc verynarrowsegmentbctwccnthe Dutch Islandsandihc Vcnezueianmainlandthe
lincdotsnotdcviatcsubstantiallyfromcquidista. hemapintheAnmx ofdclimitation
agreementsN,o.57. shows thelimitcddistancesinvolved.the delimitationdeviatesçharplyfrornequidistance.It ischaracterised by

a Largejoint developmentzone that falls almost exclusivelyon the Japa-
oeseside of what wouldotherwisebe a median line betweenthe parties.
There is room for speculation as to why this result was agreed upon. At
least one source has notedthat during negotiationsJapan based its claim
on the rnedian linetheorywhiteKorea invokedthe "natural extension"or

natural prolongationapproach'.This wouldaccord with the geornorphol-
ogyof the regionwhich,as Map 15shows, deepens quicklyoffthe Japa-
nesecoast inthe southwhileitremainsshallow fora considerabledistance
off the Korean coast.

5.90 Nor doesthe Maltese Mernorialaddressitself tothe recentagree-

ment between Icelandand Norway concerningthe Norwegian Islandof
Jan Mayenz. In that case Jceland - much the larger of the two islands-
receiveda continental shelf boundary CO-extensivewithits 200-mileeco-
nomic zonedespite the fact that the distance between the two islandsis
only 290 nautical miles.The agreement also providesfor a joint develop-
mentzone,approximatelythree-fourthsofwhichfallsonJan Mayen'sside

of the continental shelf boundary.

5.91 ln addition, many exarnplesof delimitations which involvethe
allocationof a partial effectto,or the enclavingof,islandsare absent from
the Maltese Memorial, The agreement between Saudi Arabia and Iran
whichinvolvedgivingone-half effectto the lranian Island of Kharg3and
partiallyenclaving twoother islandsispassedoverby Malta. Nor doesthe

Maltese Memorialrefer to other Gulfdelimitations - includingthe Iran-
United Arab Emirates (Dubai)&and Iran-Oman5agreements in both of
whichsmall islands were partially enclaved.

5.92 lt must be emphasisedthat theseomissionsinvolveStates that
might generally be classified as having opposite coasts.The Maltese

Memorial has alsoomitted a discussion of delimitationsinvolvingStates
with adjacent coasts! As Section 3 of this Chapter has shown,such a
distinction lacks validity.Geographic situationsare seldomsimple. it is
not easyto draw asharp distinction between delimitationsinvolvingoppo-
site coasts and those involving adjacent coasts. Each case must be
examined on its facts.

'"ContinentalShelf Development,apanQuarirrly,VolXXIV, No. 4, 1977.pp.394-397
atp.394.SecLibyanMemorial,Annex95. For thetcxofthisagrcemcnlset theAnnexof
delimitationagreements,No. 35.
'Sce No. 70 inthe Annex of delimitationagreements.
'Kharg isan txtrtmcly importaislanto Iransinceit is whcrcthe majorityof Iran'soil
cxprting activityandtankeloadintakts place.
'Ibid.No.A40. ofdclimimtionagreements,No. 42.
'The Italy-YuguslaviaandAustralia-lndoncsiaagreementsmay. howevcr,be regardcdas
involving adjacent coastaslimitedpartionof the delimitaiion.136 CONTINENTAL SHELF [1341

5.93 The continental shelf delimitation between France and Spain
provides a good example'. As Map 16 reveals, over its initial seg-

ment-from the point at which the land frontier betweenthe parties
reachesthe coast-the delimitationisbetween.twocoasts whichare adja-
cent to each other alongthe easternmost part ofthe Bayof Biscay.Asthe
boundary proceedsseaward, however, itbecomesincreasingly apparent

that it no longer delimitsan area between adjacent coasts, but rather
constitutesa boundarybetweenopposite coasts, namelybetweenthe north
coastof Spain and the southcoast of Brittany. Contrary to what mightbe
expected fromthe Maltese thesis,it isthe initial segmentof the continen-

tal shelf boundary between the "adjacent" portions of the French and
Spanish coaststhat is based on equidistance.The seawardsegmentof the
linebetweenthe "opposite"portionsofthe coasts (from Point R to Point T

onthe map) deviatesfrom equidistanceand appears tohavebeenbased on
proportionality between the lengths of the French and Spanish coasts
instead2.

5.94 The continental shelf boundary between the United States and
Mexico in the Gulf of Mexico is similara.Along the portion of the line
lyingclosest to the Iand frontier between the two States, the boundary

followsan equidistanceline.Further out intheGulf, however,the linemay
be seen to fa11closer to the United States than to Mexico4.

5.95 Another example of this tendency is found in the boundary
betweenColombia andPanama6.Closein to the adjacent mainlandcoasts
of Colombia and Panama the boundary is an equidistance line.Further

out in the Caribbean, however,the line delimits the areas between the
coastsof certain Colombianislandsand of mainland Panama whichbear
more of an opposite relationtv each other. It isin this seaward sectorthat
the delimitationabandonsequidistance and assumesa step-likeconfigura-

tionfollowinglines of latitude and longitude instead.

5.96 Viewed as a whoie, therefore, State practice doesnot support
Malta's contention that there exists a "principle" whereby States with
oppositecoastsautornaticallydelimittheir continentalshelfboündariesby

'The text of this agreementappatthe Anncxof delimitationagreements,No. 34.
ScetheAnnex ofdclimitationagreements, No.34.Thcrc isa suggestionthat geomorphol-
ogymayalsohaveplayeda roleinthisdclimitationinasmuchasthc portionofthelinclinking
pointR and T isvirtually half-way bctwetn the bathymctric isobathsmeasured at equal
depths. SeDEAZCARRAGA, J.L., YEspaiiaSuscribe,con Francia cIDosiConvenios
SobreDclimitaciondesusPlataformasSubmarinasComunes",Revista espafiolade dcrecho
internacionhl,Vol.XVII,p. 1A2copy ofthispageattached as DocumenraryAnnex37.
'Sec the Anncxof delimitation agreements, No.23.
'The UnitedStates'positionwith respecttoits dclimitationwith Mexico,as al1las with
ofitsdelimitations,isthat suchagreementsare tobeconcludcdinaccordanccwithequitable
principles.SeeLDMAPI M,.B.AND COLSOND , ..-The MaritimeBoundariesofthe United
States", ArnericanJourofIniernationalLaw, Vol.75, 1981.pp. 729-7p.a742. A
copyofthis pge is attachinDocumentnryAnnex 38.
Sec the Annex of delimitationagreemNo.s48.[1351 COUNTER-MEMORIALOF LIBYA 137

means of the equidistancemethod, although equidistancemay havebeen
employedwhere it leads to an equitable result. Nor does it support the

Maltese daim that islands are entitled to a "medianline delimitation"
whenever theyare in an "opposite"relationship. Many examplesof State
practice are not easily classifiedas either between strictly "adjacentwor
"opposite"States. Indeed, thejurisprudence and conventionallawappear

to recognisethe hazards involvedin drawing toofine a line between the
two situations. This is because many different methods are available for
establishing a delimitation'. If State practice dernonstrates anything
therefore, it isthat each casehasitsownunique setting and ownpeculiar

facts.As the formerGeographer to the United States DepartmentofState
has observecl, "every maritime-boundary situation is geographically
uniquee".Consequently,States have resorted toa widevarietyof solutions
to ensure that they reach a satisfactory resull in each particular case.

5.97 In addition, it should be noted that many delimitationsremain to
be establishedthroughout the world.One estimate is that over 300poten-

tial delimitationsituationsexiste,cach withitsownparticular characteris-
tics. Referenceto these, as yet unresolved,delimitationsas wellas to the
broad diversityof agreements that have already taken place hardly sup-
ports theMaltesecontention that examples of State practice provide"an

objectivereBectiona"of aresult that wouldnecessarily beequitablein the
present case.

'Iisuscfirltobcarinmindthatquidistnncc,kinamechanicarlncthod,ay oftebe the
simplcstmeihodtoapply. Ashasbcennotcdby twoexperts'...itisnotsurprisingtin
U.S.and internationalpracticetmaritimeboundaricscasiestta setart frqwntly
dclimitedwitrcfcrcnctothequidistanccmcthod. Morecurnplcxordisputcdboundarics
arcgcncrallystttledor dccibydgivingchi toothermcthodologics".FELDMA NND
COLSON o,pcir.pp.749-750. A copofthcsepagcsisaltachcdinDocumentarAnnex38.
* HODGSON R .D. AND SM~TH ..W., %oundaryIssutsCrcatcdby ExtendcdNational
MarineJurisdiction.he GeographicaRcvicw, Vol.6No. 4. Oct1979.pp.423-433 at
p.426. A copyof thispageis attached~umcniury Annex 39.
' MalieseMernorial,para184. PART 111
APPLICATION OF THE LAW TO THE FACTS

AND RELEVANTCJRCUMSTANCESOF
THE PRESENT CASE CHAPTER 6

THE OVERRIDING AIN OFACHIEVING AN EQUITABLE
RESULT IN ACCORDANCE WITHEQUITABLE PRINCIPLES

A. The Selection andWeigbing of theRelevantCircumstances
6.01 It isclearthat the principlesand rulesofinternational lawregard-
ingcontinental shelfdelimitationmustbeappliedtoany particularcase in

a manner that is responsiveto the factsand relevantcircumstancesof that
case. There is, accordingly, noone method of delimitation that must be
rigidlyappliedin everycase'. In thewordsof the Court in its Judgment in
the TunisiaILi cabyea

"It isclear that what isreasonableand equitable in any givencase
must dcpend on its particular circumstanc~. Thcre can bc no
doubt that it isvirtually impossibleto achievean equitablesolution

inany delimitationwithout taking intoaccountthe particular rele-
vant circumstancesof the area2".
In its 1977Award, the Court of Arbitration shared the Court's view, as

expressedin its 1369 Judgment, concerning the relationshipbetween
achievingan equitablesolutionand the appropriate account to betaken of
the relevant circumstances,when it linked the appropriateness of any
method "for the purpose of effecting an equitable delimitation" to the
*reflectionof the geographical and other relevant circumstances of eacb

particular casean.
6.02 The processof arriving at an equitable result through the selec-
tionand weighingofthe relevantcircumstancesinany particular casewas

expressed this way in the Libyan Memorial4:
"The cardinal feature of continental shelfdelimitationsis that a

Court isfaced with complexsituations of fact - with no one
situation directlycomparabiblo another- and the facts (or "rele-
vant circumstances")havean importancesuchthat theydetermine
the outwme of the case. The task of the Court therefore liesmore
in identifying and balancing, or weighing, the various facts or

factors relevant to the case than in formulating abstract
principleç."
'ThisCourt,inbathit1969and 1982Judgmcnt hasrecagnisadthatthcreis noa priori
rncthodof delimitation,but that "scvcralmcthobcappliedto one and tsamc
delimitation".NorSeaContinenta.$Le[Judgmcni,I.C.I. Rcporrs 19p.53.para.
1OI(B) [disparif.n
'ContinentaShr-.(Tunis.a/i.byan Arab Jarn-.iriyu).JudgmC.J.Reports1982.
p.60,para.72.
'Anrio-FrenchArbitraiion.LkcisiohoJunt1977 (Cmnd.7438).p.59.vara.97.
'L.igyanMcmoriot par6.38Itsccmicvidenthattheselcctiand&ighing of relevant
circumstancesntcessarilyplay agrcaterrolcprocesof delimihtionincaseswhich
havebecnrcferredtothe Coa,sthprcsencasewhcrcnoquickandsimplesoluticould
bcagrd uponbctwwn the Parties.142 CONTINENTAL SHELF [1401

It is almost as if the pleading of Malta had been anticipated in this

paragraph of the Libyan Memorial,for the Maltese Memorialresorted in
largepart tothe formulationofabstract principlesand avoidedidentifying
and weighingthe facts that constitute the relevant circurnstance of the
present case. Instead, Malta introduced a series of considerations that
must be regarded as irrelevant to a continental shelfdelimitation. These

points have been amply covered in Chapters 2 and 3 above, where the
jurisprudence of this Court bearing onthe importance in any continental
shelf delimitation of the selection and weighingof the relevant circum-
stances of each case was also cited'.

6.03 In eflect,twooperationsare involved:the selectionof the circum-
stances relevant to the particular case; and the balancing or weighingof
these circumstances.The end resuit to be achievedis an equitable result.

6.04 Looking firstat the selectionprocess,it is apparent that no auto-
matic rule or method emergesfromthe jurisprudence. Each case must be
examined in the light of its "particularcircumstancesg". itis evident,as
well,that in continental shelf delimitationsuch factors or circumstances

must be related to the continental shelf and, its delimitation. This, of
course, is a basic defect in the economicand other considerationsintro-
duced by Malta: they are not relevant to continental shelf delimitation.
However,there isno closedlistor "legal limita"to the considerationsthat
might in a givencase beregarded as relevant, providedthey are germane

tocontinentalshelfdelimitation.Hencethe processofselectioninvolvesan
examination ofthe particular factsof the caseactually beforethe Court to
identifythose which are relevant to delimitation of the continental shelf.

6.05 The balancing or weighing of the relevant circumstances of a
particular casesa selectedmust be undertaken in the light of the overrid-
ing objective of achieving an equitable result. In the present case it is
evidentthat a certain hierarchy of factors or circumstances exists.Some
factors may beviewedas having more weight than others. Prime weight
must be givento those factors of a physicalnature that form the basisof

continentalshelfentitlement,that isthe natural prolongationor extension
of the land territory of each of the Parties into and under the sea.The
continentalshelf,after all,comprisesthe sea-bedand subsoi1,and rightsto
the continentalshelf restexclusively withthe coastalState. Thesephysical
factors include the coasts of the Parties - properly identified as the

relevant coasts- and the cbafacteristics ofthe sea-bed and subsoilof the
areas of continentalshelf appurtenant to thesecoasts. Inthis respect, the
lengths, configurationsand relationships ofthe respective coastsof the
Parties are of particular importance. So also are any features of the sea-

'Secparas2.03 and2.04abovc.Scc also fibyan MemoriaI,para6.35-6.43.
'ContinentalShclj (Tunisia/LibyanArab Jomahiriya), Judgmcni,I.C.J. Reports 1982.
'North ScaContinentalShclj. JudgmcnI.C.JReports 1969,p. 50,para93.Cl411 COUNTËR-MEMORIAL OF LIBYA 143

bed or subsoil that might affect the entitlement of the Parties such as

features that constitute fundamental discontinuitiesin the shelf. If, as in
the present case, such physical features are unusuai and striking, their
weight must be greater, and they necessarily must figure more promi-
nently, inany delimitation than wouldfactorsof a trivial character. Such
isthe casehere withregard to the unusualsea-bedfeaturesandgeographi-
cal relationshipsthat have been discussed in Chapter 2 above. Physical

factors have another characteristic that contrasts with the economic and
political considerations advancedby Malta - they may be objectively
determined and observedand, in,relativeterrns,are notsubject tochange.

6.06 Other factorsof a somewhat differentnature may alsoconstitute

relevantcircumstancesin a particular case. In this case, forexarnple,the
general geographicalsetting is highly relevantin viewof the characteris-
tics of the Mediterranean as a narrow sea, itself compriseof a serieof
semi-enclosedseasand filledwith islandsof many differentsizes - some
independent, others island dependencies - and encircled by continental
States. Another relevantaspect afthe Mediterranean Sea,and in particu-

iar of the setting of the present case in the Central Mediterranean, is the
fact that there areboth existingand potential continental shelf delimita-
tions in the area that needto be taken into account in a delimitation
between Libya and Malta.

6.07 It may be observedthat the physical factorsof geography, geo-
morphologyand geologywillaiways be relevantcircumstancesina caseof
continentalsheifdelimitation,So alsowillthegeneralgeographicalsetting
and thepresenceofanythird Statesthat mightbeaffectedbythe delimita-
tion in question. However,there are other factors which in a given case
may also be relevant-or even determinant-in reachingan equitable

result. For example,the conductof the Parties may proveto be of major
importance.The Court in the TunisialLibyacase found a "circumstance
related to the conductof the Partiesnto behighlyrelevant".Thiswasthe
defacto line dividingconcession areas at a bearing of approximately 26"
to the meridian'. It hasbeenshowninChapter 1abovethat inthe present
case, inspiteof eiTortsin the Maltese Mernorialto establisha sratuquo,
the only conductof theParties that might truly be regarded as a relevant

circumstance was the observanceby both Parties of an area between the
linesproposedby the Parties in 1972and 1973 in whichnodrilling in fact
occurreduntil the 1980 Texaco-Saipemincident.The conductof the Par-
ties in this respectrior to 1980was reflected in the no-drilling under-
standing between them which accompanied the signature of the Special
Agreement in 1976.

Cantihcnr ubcl/(Tunisia/tibyanAraJarnahiriyu), JudgmeI.C.JReports1982,
pp.83-85.paras.117-20.144 CONTINENTALSHELF [142]

6.08 Other factors which in a givencase might prove to be relevant,
although perhaps in a subsidiary role, include security considerations,
navigationchannels, historic rights involvingresourcesof the continental
shelfor any other existingpatterns of exploitationof shelf resources.Thc

fact that inthe presentcasenoneofthesefactorshavebeenestablishedby
MaIta to be relevant to an equitable delimitation has been dealt with in
Chapter 3 above.
6.09 The weighingor balancingof the relevant circumstances,just as
their selection,isconditionedbythe overridingneed to reach an equitable

result. The primary means fordeterminingthe equitablenessof a particu-
lar result is by the test of praportionality. it is to this subject, therefore,
that the discussionnow turns.
B. TheTest of froportionality

1. Malta's Attempt to Discredit the Roleof
Proportionality

6.10 Therejectionof proportionalityiscrucialtothe Maltesecase. It is
therefore important to examinecarefullythe reasoning behind thisrejec-
tion.The Malteseargument beginswitha simple assertion: "Thelocaiion
andrelationof coastlinesarethe overriding factors1." The clear implica-
tionis that coastallengthsare irrelevant.Why, it.maybeasked, isthis so?
The answer given by Malta is that there are two elements of particular

relevance:
"(a) The fact that a restricted coastal sector may produce a
number of very influentialcontrolling pointsby reason of itsloca-
tion and character: and such is the caseof Malta.

(b) The faci that the effect of the diKerencebetween the west-
east or lateral reach of the Maltese and Libyan coastlinesleaves
Libya with a very large part of the shelf areadividing Malta and
LibyaL."

6.11 Takingthesetwoelernentsinturn, what evidenceisthere that the
numberof controlling points (i.e.controllingthe rnedian line) has ever
beenconsideredrelevant? No authority iscited, and, indeed, nonecan be
cited for thisstrange proposition.Afterall, a perfectlystraight coast has

an infinite number of controlling points. Butwhat difierence does this
make? The proposition is essentially meaningless.As to the second ele-
ment,al1thisissayingisthat ifLibyahas morecoastit willget moreshelf.
But of course! Thisis preciselywhycoastal lengthsare relevant, and the
rather trite observationcontained in this second "element"is no support
whatsoever forthe prernisesof the Maltese argument. Thus, it may fairly
be said that, so far, the Maltese argument has got precisely nowhere.

'Maltese Mernoriapara.127.
'Ibid.,para.128. 6.12 Yetthere ismore. For thesetwo elements giverist toa deduction
in the followingterms-

'..it followsthat the criterion of proportionality (by referenceto
the length of the respective coastlines) cannotbeapplied if an
equitable solution isto be achievedl."

6.13 Of course nothingof the sort followsindeed, it inotpsi blefor
anything to "follow"from two rather meaninglessstatements graced by
the titleof "elements". What might fairly be said is that the second
"element" is in fact a recognition of the fact that a longer coast will
generate more shelf, so this disprovesrather than proves the supposed
deduction or conclusion.

6.14 Then tbere is astatement whichseemsto stand indepcndently of
the previous"reasoning". Itistothe eflectthat to takc account of coastal
lengthswouldbeinconsistent withlegalprinciple "since itwould involvea
simpleapportionment of the continental shelf",contrary to the conceptof
legaltitlepsfoacto and ab iniiioit wouldrevertto thediscarded notionof
the "just and equitableshare".

6.15 This statement isat variance with the jurisprudenceand seem-
inglywiththe State practice.Under mostnormal circumstancesthe length
of any median lineis directldependent on the length ofthe two coasts
controlling it. Even with an equitable or "adjusted" equidistance line,

between adjacent States, the diAerencesin coastal length may causea
diversionin that line (as withtheFrancbSpanish Agreement of1974').
And whenCourtshavereferred to "coastal configurationswthey have had
in mind not simply shape but length: in the North Seacases of 1969the
AngleFrenchArbitrutionof 1977and the TunisialLi cbseaof 1982the
length of coast was always a relevant factor. At no stage was a Court
prepared to concedethat length wasirrelevant, or that to take accountof
length would be to faIl into the traof apportioning "just and equitable
sharesn.

6.16 Later inthe Memorial, in Chapter IX, the Maltese argument
resumesthe discussion of the "irrelevanceof proportionalityin this case",
and the argument takes a rather different form.begin wsith the Court's
dictum inits 1982 Judgment that "the onlyabsoluterequirement ofequity
isthat oneshouldcomparelikewithlikea."The argument then seemsto be

that,in dealingwith like(or similar) wsts, equity willuse proportional-
ity toabate "minorcauses of distortion"but cannot refashionnature. And
- or so the argument implies - proportionality cannot be used in this
case becauseMalta and Libyaare not alike,and there are nominorcauses
'MalteseMemorial.para.129.
'Agreementof29 January1974,Secthe Annexofdclimitatiagreements,No34.
'Citcdat MalteseMernoriapara.257;thedictumappearin ContinentalSliclf (Tuni-
sia/LibyanArab Jarnahir&aJ,JudgmeI.C.JReports 1982,p. 7para. 104. 146 CONTiNENTALSHELF [1441

of distortion.Tocast this interpretation on the Court's language is unac-

ceptable.The Court was not sayingthat where coastsare unalike,propor-
tionality has no rale.For example,the Court recognisedthe need, in the
Tünisia/Li case, to consider maritime areas up to the coast of both
parties without regard to baselineswhichoneor the other party may have
enacted and which might have been considered controversial soas to

compare"like withlike". Butthe Court in the Tunisia/Libyacasedid not
regard the Tunisiancoast "like" that of Libya. Moreover,in the North
Sen cases the Court certainly did not consider the German coast "like"
that of the Netherlands or Denmark. Yet in both casesthe Court made

use of the proportionality test.

6.17 There then followswhat is really a quite separate assertion, and
that is that "the factor of proportionalityisinapplicable in the case of
opposite States1". This is described as "a matter both of legal principle
and the legal policyof promotingstability in delimitation'". Quite what
the reference to "promoting stability in delimitation" means is not clear.

Perhaps the ideais that if States use the median linethe answer issimple
and predictable,but ifaccount hasto be taken of proportionality,then the
result isnot quite sopredictable.That, of course,is true. Yetboth Courts
and States have rejected the automatic application of equidistance in
favourof an equitableresult, and they have optedfor fairnessrather than
predictability.

6.18 However,the important statement is the statement of legal prin-
ciple that proportionality is inapplicable between oppositeStates. This is
assertedto besupported bothby"the practice ofStates and bydoctrine1*,
though the Memorial in fact cites noState practice and onlyone author2.
It cannot be accepted as a correct statement of legal principle.

6.19 The true positionis that with States with oppositecoasts, if one

assumesequalcousis,the median line willconstitute an equal divisionof
thearea lyingbetweenthe twocoastsa.The "proportionality" is,as it were,
automatically brought about by the median linemethod, and Courts have
no needto apply the "test" of proportionality because the proportionate
result isself-evident.The situationoesnotrequirean actual "test" - just

asnoonewouldnowadays"test" whethera linejoiningthe bisectorsoftwo
opposite sidesofa quadrilateral actually dividedthe quadrilateral equally.

6.20 Thus, in the AngleFrench Arbitrotion (the only case dealing
with a clearly"opposite"relationship) theCourt stated this proposition-

'Thc authoris BOWETTaT,he Legal Régimeof Islands inInrernatiohw. Occana
Publications,DobbsFerrNew York,1979,p. 164But setpp.224-225whcrcthesamc
authordiscussesthe Courtof Arbitration'ef prapartionalibetweenthe oppositc
English andFrenccoasts.A copyofthwcpages iattachedinDocumeniaryAnnex40.
@ ' Thispointisdiscussedatpara.7.2bclowanddcmonstrattinDiagram A facingp. 160.11451 COUNTER-MEMORIAO LF LIBYA 147

"...where the coastlines of two opposjte States are themselves
approximately equal in their relation to the continental shelf not
onlyshould the boundary in normal circumstancesbe the median
line but the areas of shelf left to each Party on either side of the

median line should be broadly equal or at least broadly
comparable1."

6.21 Obviously,with adjacent States account has to betaken of the
likelihoodthat anydistortingfeature willtend to havegreater influenceon
an equidistanceline,becauseit willtend tocontrola greater lengthof lhat
line.Itisfor thisreasonthat the needtoapply the "testnof proportionality

will begreatef. Yetthis is not becauseof any differencein legal principle;
legally,the test is relevantin bothcases.Thedifference issimplythat with
equal,opposite coaststhe proportionality isself-evident,but withadjacent
coasts it rnay not be so self-evidentand may need to be tested.

6.22 If the opposite coastsare not equal, then the wholeassumptionof
an automatic equality in the division of the area by the median line

disappears, and proportionality as a test ought to be applied precisely
becausethe equity of the median line is nolonger self-evident. Moreover,
if some method other than the medianline is used betweenStates with
opposite coasts then, irrespective of the equality or lack of equality
between the coastal lengths, there is again a need to use the test of
proportionality.

6.23 This view receives confirmation fromthe 1982 Tunisia/Libyo

Judgment. The Court's characterisation of the relationship of the two
coasts in the secon dector was not in termsof adjacent coasts. On the
contrary, the Court said:

"The majorchange in direction undergoneby the Coastof Tunisia
seems to the Court to go some way, though not the whole way,
towards transforming the relationshipof Libya and Tunisia from

that of adjacent States to that of oppositeStates ...'".

6.24 Yet,in deaiing with a situation more akinto an oppositethan an
adjacent relationship,the Court had no hesitation in applyingthe propor-
tionalitytest4. Thiswouldseemto bea conclusiverejectionofthe Maltese
thesis of the inapplicabilityof the proportionality test between opposite
coasts.

'Anglo-FrenchArbitration.Dccisiof30 June 1977{Cmnd. 7438),p. 89. para.182.
'HcncetheCourtof Arbitratiousod thetestinrclatjIotheScillicforinthe Atlantic
Sectorthe boundaryassumtd thecharacieof a boundarybetweenlatcrally-rela(or
adjacent)coasts:AngleFrench Arbilroiion. Decisionof 30 Junc 1977 (Cmnd. 7438),
pp. 112.para.239 andp.117,para.250.
p.88, para.126.v (Tuni~ia/LibyanArubJamahiriyo}.Judgment,I.C.J. Reporis 1982,
'Ibid p.91. para. 131.148 CONïïNENTAL SHELF [1461

2. The Role of Proportionality

6.25 Incontrast with Malta'sattemptto discreditproportionality,and
to reject its application in the caseofoppositeStates, the Libyan Memo-
rial' attempted to place the test of proportionality in an important and
general role. For, in Libya'sview,the jurisprudence cIearly supports the
idea of the use of proportionality as a generai-test of the equity of the

result: and, as an aspect of equity, it cannot be right to confine it to
situations of adjacency. Equity needs to be satisfiedin the case of States
with opposite coasts justas much as in the case of adjacent States.

6.26 In the North Sea cases the Court saw the role of proportionality
as inherent in the idea of an equitable result. Directly related to the
concept of title to the area of natural prolongationof the coast was the

need,inequity,to securea realistic assessmentof the lengthofthe relevant
coast. In the Court'swords,the coastswereto be "measured according to
their general directionin order to establishthe necessarybalance between
States withstraight,and thosewithmarkedlyconcaveor convexcoasts,or
to reduce veryirregular coastlinesto their truer proportionsg." Once the
coastal lengths hadben assessedbythismethod-the methodof'coastal

fronts"- the Court sawthe need,inequity,to ensurethat thereshould be
a "reasonabledegreeof proportionality ..betweenthe extent of the conti-
nental shelfappertaining to the States concernedand the lengths of their
respectivecoastlines2".Thus, this wasenvisagedbythe Court as an inher-
ent part of a 'delimitation enected according to equitable principles".

There is no suggestionthat it is to be confinedto adjacent States; on the
contrary, the test is one of general application. Clearly length was rele-
vant: the Court referred explicitlyto"the lengthsoftheir respectivecoast-
linesn. And, equallyclearly,the exerciseof applying thistest-of taking
account of the "factor" - was in no sense regarded by the Court as
distributing "just and equitable shares", the very conceptthe Court had

itself rejected. The Court's concernwas to identify,in an equitable man-
ner, the area of the natural prolongationof a coastto whichthe State had
titleipsojure; but that required, first,a realistic assessmentof the coast
and, then,a recognitionthat areas and coastal lengthsmust inequity be in
some reasonabledegree of proportionality.

6.27 This was the Court's principal use of proportionality. It may be

said that the Court envisageda secondaryrole for proportionalityin any
areas of "overlapnof naturai prolongations< But this was onlypropor-
tionality in the senseof a divisionin agreed proportions or,failing agree-
ment, an equal divisionof the area of overlap, and applied to this rnuch

'LibyanMernorial.paras6.90-6.93.
'North ScaConiincnialShelJ Judgmeni,I.C.J.Reports1969,p. 52,para.98.
discussioofthispoint.C)(I) and (2) [disposirin. Sccpara.7.11bclow,fora fullcrsmaller area. In contrast, the principal role of proportionality appliedin
the relevantarea asa whole,and involved,not equaldivision.but a division
having a reasonable relationship to the lengths of the relevant coasts.

6.28 In the AngleFrench Arbitrafion, the Court of Arbitration, like

this Court, saw proportionality asa generaltest of the equityof the result:
as "a criterion or factor relevant in evaluating the equities of certain
geographical situations ...ln. Certainly the Court of Arbitration did not
assume that the test necessarilyapplied in al1cases2,although the Court
did apply it intbat case.Asindicatedinthe preceding section,the Court of

Arbitration adopted a basic median line throughout the EnglishChannel
preciselybecauseit maintained "the appropriate balance betweenthe two
States ,..with approximately equalcoastlines8". Thisis the applicationof
proportionality between oppositeStates: an "appropriate balancen is a
'reasonable proportionn.And this viewis confirmedby the fact that the

Court's enclave solution forthe Channel Islands was dictated by the
Court'sdesire toavoid upsetting this balance, this reasonableproportion-
ality. The Court rejectedthe United Kingdom'sproposalfora medianline
between those Islands 'and the FrenchCoastpreciselybecause this would
have involveda "disproportion"or "imbalancen:those are the very words

usedbythe Court4. Thus, the Court did apply proportionalityas between
States with opposite coasts.It did not use the test by reference to actual
figura of coastal lengths and shelf areas simply because, as indicated
earlier, the broadly equaldivisionof the area by the median line wasself-
evident.

6.29 In the Tunisia/Libyocase the Court emphasisedthe role of pro-
portionality "as an aspect of equitf". It applied a rough test of propor-
tionality to al1 the relevant coasts of the parties, both the coasts in a
relationshipofadjacencyand the coasts ina more opposite relationship.It

measured those coasts by lines of general direction, "without taking
account of small inlets,creeksand lagoons",and comparedthem with the
sea-bedareas belowthe low-watermark. And,inthe result, it was satisfied
that the rough approximation of the ratios satisfied the test.

6.30 In the context of the present case, therefore, the roie of the
proportionality testor factor cannot be ignored. For, under the guise of
rejecting the applicabilityof this "test", what Malta is invitingthe Court
to do in fact is to ignore the length (or perhaps lack of length) of the

'Anglo FrenchArbitmtion.Decisionof30 rune 1977 (Cmnd. 74361,p. 61.para.101.
'Ibid.p. 60. para.99.
'Ibid., p.95. para.201.
'Ibid.p.94,para.198.Notethat the CourtlsouscdproportionaliinrelatiototheScilly
Islcs,rcgardithcm asprduclivc of"disproportionateeffwts"thequidistancclineand
'ConiimriialSheyg(Tunisio/iibyanArabtJamahiriyo).Judgmeni.I.C.J.7Reports1982,.
p.91, para.131.150 CO~NENTAL SHELF [1481

Maltese coast. This sirnply cannot be done, because, as the following
propositions - compatible with the jurisprudence of the Court -
demonstrate:

-A State's title to any area of shelf depends upon its coast.

-The starting point forthe determination ofthe natural prolonga-
tion of a State asellas of the delimitation exerciseis its coast.
-The greater the difference in the length of the two opposite
caasts,thegreater istheneed to utilisethetestof proportionality

as an indication of theequity of the result.
With equalcoaststhe equitableresult of a medianlinemay be
self-evident'absentother cornpellingcircumstances, but that

becomes less and less true as the disparity between coastal
lengthsincreases. Inthe present case,withthegreat difference
in coastal lengths,the need to apply the proportionality testis
al1the greater.

-The applicationof the proportionality factor willserveto avoid
encroachment not only of one State's shelf on that of the other
but also on that of third States.

As has been demonstrated', theMaltese case simply ignores
the presence of third States. This is no accident, and the
coincidenceof this approach with the rejectionof proportion-
ality is equally no accident. For,in truth, it is by discarding
proportionalityand al1concernwith the very lirnitedMaltese

coastthat Malta isableto layclaimtovastareas ofshelf, lying
to the east, which can only be realistically regarded as lying
betweenthe ltalian and Libyancoasts.In efïect,Maltaisclaim
postulates a Maltese coast stretching far to the east. It is the
refashioningof geography toan e~traordinary degree, and it
pioduces an encroachment on the shelf areas of other States
which any sensible application of the proportionality factor
wouldavoid.To put the point in different terms, in a confined

sea - like the Mediterranean - becauseof the proximity of
many States, the proportionality factorbecomesan indispen-
sable tool of equitable delimitation.

6.31 The emphasis in the Maltese Memorial onthe distance between
the Libyan and Maltese coasts, and the location of Malta in relation to
Libya is interesting, though, it must be added, the implicationsf these
factorsare not obviousfromthe Memorial itself. AMalta 18milesoffthe
Libyan coastwouldbea verydilïerent matter from a Malta 180 milesoff
the coast: and itis the more distant Maltawhich, by the median line

'SecChapter2. SectionA.4above. C1491 COUNTER-MEMORIAL OF LIBYA 151

method, getsthe largershelfarea'. The elementofdistanceleadsdirectly .
to the conclusionthat theedian-linemethodisinappropriateand inequi-
table,and that whatcvermethod isusedtherc isa need to verifythe equity
of the result by the proportionality test.
6.32 One final pointhas tobe made. In al1the cases,the proportional-

ity test is seen as an aspecofequity; its role is to ensure an equitable
result,basedonthe twocoasts, lt isinconceivablethat equity-and with
it the proportionality testas an aspect of equi-y should be eliminated
betweenStates with oppsite coasts. In essence,thal iswhat the Maltese
argument seeks to.achieve.

3. Malta'sIntroduction of an Unacceptable Form
of ProportionalitTyest -
6.33 The Maltese Memorial contains a latent contradiction. On the
one hand, there is the repeated assertion that the test of proportionality

cannotbeappliedas betweenoppositecoasts2;onthe other hand, thereare
parts ofthe Malteseargument whichassumetheapplicability ofa formof
proportionality testand other parts which actually rely ont.
6.34 For example, ai paragraph 39 of the Maltese Memorial weare

giventhe area of theentire"Maltese shelf" (approximately60,000square
kilometres), and at paragraph 52 the area of shelf supposedto attach to
Libya byvirtue of a median-linedelimitation with Maita (approximately
400,00 square kilorne~res)~. hen,atparagraph 117,thesetwo areasare
compared,and referenceismade to the "impressive longitudinal spread of
continental shelf"attaching to Libya. The question arises,whyare these

cornparisonsbeing made, if not as a farm ofproportianality test? The
comparisonof shelfareas iscertainly one part of the orthodoxproportion-
alitytest.What is unorthodox about the Maltese use of the test is the
omissionof the other relevantfactor-the respectivecoastal lengthsof the
Parties-and the omissionof any reasoningto justify the relevancof the

areas chosen.
6.35 The omissionofthe coastal lengthsdenotesthe basic weaknessin
the Maltesecase, andthe rejectionof the relevanceofcoastal lengthsgoes
hand in hand with the rejectionof the test of proportionalityin its ortho-
dox form.

6.36 Yet it is not only by the comparison of areas that Malta uses
proportionality.The proportionality factor is implicit in the "trapezium"
demonstration'.For Malta haschosena geometrical formwhichiscalcu-
lated to divide the area in rough proportions of1:3,so that Libya will

'Sec paras.7.26an7.27bclow.
'E.g.Maltese McmorialChapterV, sectio4,paras1.27-13 0;apttrIX.section 6.
paras.256-258.
Libyadotnotacctptcithcthebasisforothecalculationofthac figures.lson.4
a to p41,above,
'Sa Mallese MernoriFigureA. atp. 118.Sec alsoChaptcr7,SeB,ibclow,anihc
Annexalthe endofthisVol.1.152 CONTINENTAL SHELF [1501

alwaysappear to be getting roughtythree times as much shelf as Malta.

The fact is that if a triangle istakeand its twosides arejoined by a line
bisecting those two sides (in effect, a "median" line), a lower sector is
produced which is three times as large as the upper sector. And this
remains true whatever the lengthof the base of the triangle. Now if a
"trapezium" isusedinsteadofa triangle,sothat at the apex there isa short
side rather than a point, it makes very little difference:the two sectors

remainin an approxirnateratio of 1:3'.
6.37 Thus, the "trapezium" ismerelyanother form of proportionality,
although unacceptablein thatform. Unlikethe orthodoxand proper test,

however,it isdesigned to eliminate the ratio of two sides (or the two
oppositecoasts). The relative lengthof the apex - be ita mere pointor a
short side - canbe ignored. Solong as the apex is short, the result will
alwaysberoughly 1:3and thiswillbetrue however long thebase.The idea
is ingenious-if possiblylackingin frankness - and it certainly relieson

theproporlionaiiiy of the two sectors.

cxcrcise".See also para.2.45, abovc,discussingthe ratiosbctweenthe relevant coastsof
LibyaandMaltain thepresentcasethemost gcncrousratioto Malbcingroughly1:8. CHAPTER 7
THE INEQUiTY OFMACTA'S PROPOSEDSOLUTION

7.01 The equity-or inequity-of any proposed method of delimita-
tion cannotbejudged by referenceto what maybe claimed as the "inher-
ent" virtues of the method, a theme that seems to pervade the whole
Maltese Mernorial with respectto equidistance. For,if it were correct,

how could one expiain the opposition of the majority of States to the
expressreference ta thismethod inthe tcxtof Article 83of the Convention
onthe Lawof the Sea? And howcouldoneexplainthe repeated affirma-
tions,by ibisCourt andtheCourt ofArbitration inthe 1977AngleFrench
Arbitrarion',that no metbodhas anya priori claim to adoption,and that
the appropriatenesçofany methodisthe result ofthe circumstancesof the
particular case,nd not the result of anyassumedvirtuesofthe method as
such?

7.02 The correct approach to delimitation muststart from the follow-
ing basic principle, recentlyreaffirmedin the 1982Judgment in tTuni-
sia/Lib yase in the followingterms:

"The delimitation istu be effected in accordance with equitable
principles,and taking account of al1relevant circurnstancesg."
.lt is the emphasis onal1relevantcircumstanceswhichis significant, fit
isonly by thecarefulselectionand weighingof al1relevantcircumstances

that the appropriate method-appropriate to the particular case-is to be
deterrnined. As aptly stated by the Court of Arbitration in the 1977
Award-
"...this Court considers the appropriateness of the equidistance
method or any other method forthe purposeofeiTectingan equita-
ble delimitation is a functornreflectioof the geographicaland
other relevant circumstancesof each particular caseg."

7.03 Thus, the appropriatenessof equidistancehasto bedetermined in
this case, notby referenceto any claims as to its inherent virtues oras to
the frequency of its use in agreements between States in other, quite
different situations, but byreference tothe relevant circumstaofethis

particular case.
A. EquidistancIegnoresthe RelevantCircumstances
IncludingTboseof a CeographicaC l baracter

7.04 In the Libyan Memorial(paragraph 7.11) the rather elementary
point was made that, in the natureofthe method, equidistancecan only
take account of geographical factors since it dependsentirely on the

'Anglo-FrenchArbiimtion,Dccisof30 June1977 (Cmnd7438),p. 54. para.84.
*ContinenrafSlicif (Tunisiu/UbynnJamuhiriya). JudgmeI.C.J. Repon1982,
'AngleFrenchArbitrafion,Decisionof30 June1(Cmnd.7438), p. 59. p97.. 154 CONTINENTAL SHELF f1521

relationship of the two relevant coasts-it cannot take account of other
relevant factors such as geomorphology,geology,physicai appurtenance
of shelf to landmass, conduct of the parties, effect of delimitations with

third States or the element of proportionality. Indeed, the further point
was madethat strict equidistancewillin many casesfailto reflecteventhe
essential geographicalreiationships',sincefeatures such as promontories,
offshore islands, convexor concave coastlinesand the like willdistort the

course of an equidistance line.

7.05 Withthe submissionof the Maltese Memorial wenowhave con-
firmationof these propositions. It is quite evidentthat the equidistance

methodproposedbyMalta wouldignoreal1the physicalfactorsof appur-
tenance and the truc geomorphologicaland geologicalstructure of the
@ relevant areaz. This is evident from Mup 17 showing Malta's clairned
equidistance line superimposed ona bathymetric map of the Central

Mediterranean. It is obliviousto the effect of existing or prospective
delimitations with third States8. With regard to proportionality, Malta
professesto disregard it as irrelevant in the case of States with opposite
coasts, but then re-introduces it, in spurious and quite unacceptable
forms'. Of course,by its verynature equidistancecan take no account of

the conduct of the Parties; and the invalidity of Malta's assertion that
equidistance waç established as the status quo has already been noted5.

7.06 Therefore, Malta's virtual silence as to the physical features of

the sea-bedand subsoilis,onreflection,lesssurprisingthan it may at first
appear6. They are factors whichcannot be taken account of by equidis-
tance. Instead, the Maltese Memorialspeaksof theareaas a "geological
continuum7"and quickly slipsinto a discussionof certain geographical

factors, the only factors having any bearing onthe equidistance method.
Malta's failure even to refer to the factor of delimitations with third
States, discussedin Section A. 4. of Chapter 2 above, is remarkable in
light of the undoubted fact that, frorn the 1969 Judgment onwards, the

jurisprudence has consistentlymaintained the relevance of this facto?.

'Sec the commentby Judgc Oda in his dissenting opiniinthc Tunisia/Libyacase.
ConiincnralShei(Tunisia/Libyan AraJamahiriyo), DissentingOpinioI.C.JReports
1982,p. 261,para166.
'Sec Chapter2, ScctionC, above.
'SR Chapter2, ScctionA. 4.. above.
'See Chaptcr6. abovc.
fSee Chaptcr1. abovt.
'T~CSCfeaturcsarc,of course.mentioncdin para.56 of the Maltese Memorialbut then
follows the conclusioinn para. 57 that thc area is a "continuousmntinentalshelf', a
conclusion notborneoutythe facts.
'MulzeseMemorial,para.269;seealsopara.57.
'See the referenccsat para.6.of the Libyan MernoNolSec. too, the Anglo-French
ArbitralioDecisionof30 June1977 (Cmnd.7438). pp.29-31,paras24-28,rcferring to
thepotcntialU.K./lrclandboundary. [1531 COUNTER-MEMORIAL OF LIBYA 155

@ However,after examining Figure A at page 118of the Maltese Memo-

rial-which isbasedon the assumptionthat the entire LibyanCoastas Far
east as approximately the 23" E longitude (at Ras at-Tin) is opposite
Malta - the needforsuchsilenceisapparent. Thisassumptionof Malta
may be said to prejudice not onlya future Italy/Libya delimitation but
alsoa futureGreece/Libya delimitation. Asto the elementofproportion-
ality, this has been the subject of the previousChapter where it has been
demonstrated that the proposedMalteseequidistanceline cannot produce

a result that is even rernotely equitable in the light of the test of
proportionality.
7.01 The relevant geographical factors, however,deserve additional
attention heresincegeographyisthe onerelevantcircumstancethat equi-

distance by its very nature must take account of. In its discussionof
geographical factors, theMaltese Memorial is characterjsed by a degree
of abstraction (as tothe law) and of unreality (as to the facts) which
combine to produce an improper and unacceptableuse ofthis particular
category of relevant factors.

7.08 As to the law,the citation of legalauthority to support the useof
equidistanceas a method that will take full account of the geographical
factors and produce an equitable result is simply incornplete. For with
each and every citation what is missing is a description of the actual
geographical situationthat theCourt (or, inthe casof State practice, the
States in question) had in mind.

7.09 For example, consider the citations f~omthe 1969 Judgment.
The Maltese Memorial relies heavilyon paragraph 57 which States:
"The continental shelf area off,and dividing, oppositeStates, can

be claimed by each of them to be a natural prolongation of its
territory. These prolongations meet and overlap,and can there-
fore onlybedelimitedbymeansofa median line;and, ignoringthe
presenceof islets, rocksand minorcoastal projections,the dispro-
portionally distorting effect of whichcan be eliminated by other
means, such a line must effectan equal divisionof the particular
area involved'".

7.10 It willbe recalledthat atthisjuncture in its Judgment the Court
had nospecificsituation in mind-it wasreferring, quite generatly,to the
discussionsin the International Law Commission and explainingwhythe

Commission had experienced more difficultwiththe equidistancebound-
ary between adjacent States and less difficulty with the median line
between oppositeStates. Now if one postulates the situation of two
'oppositeand equal coasts-and it can fairly be assumed that itwas this
situationwhichtheCourt had inmind-the statement isobviouslycorrect.
For not onlycan these rninorcoastal projectionsbediscounted byvarious

'North Sea ConrineniShtg Judgmenr,I.C.3. Reports 19636,para.57.156 CONTINENTAL SHELF E1541

meansbut, inpractice, theirelTectona medianlineisminimal. Thisisfor
the very obvious reasonlhat the line is controlledby such features over

onlya small stretch of the line,and thereafter the line is controlledonce
more by the main coastline. But if, asin this case,there are no opposite
and qua1 coasts-but on oneside simplya small island groupthe geo-
graphical situationischanged totally. A single pointthen controls avast
segment of the line. The premise upon which the Court's dictum was
founded is removed, and there is simply no warrant for applying this

dictum to a situation which was notin the mind of the Court.

7.11 The same misrepresentation occurs in relation to the Maltese
Memorial'scitations from paragraphs 57 and 101of the 1969Judgment'.
This can be seen from a close look at paragraph 101 of that Judgment.
For itwas said in paragraph IO1(C) of the dispositiJthat-

"(1) delimitation is to be effected by agreement in accordance
with equitable principles, andtaking account of al1the relevant
circumstances, in sucha wayasto leaveasmuchas possibletoeach
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 othe. ..".

Paragraph 101 (C) (2) continued that if, after this process,there are left
areas that overlapthen "these are to be divided... in agreed proportions
or, failing agreement, equally . . .". It is clear that the Court never
contemplated that the wholearea of the continental shelfto be delirnited

was an area of "overlap", as Malta wouldnowhave us assume, but only
this narrow area. The Court's dictum has simply been taken out of
context by hlalta and an artificial "areaof overlap"has been constructed
on the basis of an invalid geometric exercise.

7.12 A similar trick of abstraction pervadesthe use made in the Mal-
tese Memorial of the Decision in the Anglo-French Arbitrarion. At
paragraphs 121 to 124 of the Maltese Memorial under the heading of

"The Significant Rôle of Short Abutting Coasts in Delimitation", the
argument is made that "apart from unusualgeographical elements, any
coastal feature counts equally and mustbegiventhe appropriate control-
lingeiTecte". osupport this argument, the Memorialcitesparagraph 248
of the Decision (which noted that in the Atlantic Sector the relevant
coastswereFinistère andUshant onthe Frenchsideand Cornwall and the

Scillies on the United Kingdom side) and concludeswith the following
astonishing proposition:

'NorrhSpa ConiinentalShell; Judgnrent.I.C,J.Reports 1969para.57and p.54,
pMafreseMernorialpara.122.t para269 ofihc Maftese Mernorial.il55] COUNTER-MEMORIAL OF LIBYA 157

"In such circumstances the equidistance method was applied to
give thesameefTectin principlebothto the veryattenuated feature
of the Cornish peninsula and ta the outlying Scilly Isles as in the
caseof the considerably moresubstantial mainland of Finistère'."

This statement is highly misleading, despite the qualification of a foot-
note2,forit failsto notethat theCourt gaveonlyhalf-effectto the Scillies,

even though the Scillies and the Cornish peninsulaconstitute a much
larger coastline - as compared with Finistèreand Ushant - than does
the coast of -Malta compared with the Libyancoast. And what the
Maltese Memorial fails to bring out is that the 1977 Decisionapplied
equidistance throughout the Englisb Channel precisely because il lay

betweentwo broadly equal coastsin relation to which the Parties them-
selvesagreedthat a medianlinewas appropriate.Asthe Court of Arbitra-
tion concluded:

"It followsthat where the coastlines of two opposite States are
thernselvesopproximafelyequaiintheir relation tothecontinental
shelfnot onlyshouldthe boundaryin normal circumstancesbethe
medianlinebut the areas ofshelfleft toeach Party oneither side of
the median line should be broadly equal or at least broadly

comparable3."
Thus, far from supporting the Maltese proposition,the Court of Arbitra-

lion'sDecisionruns quite contrary to it.
7.13 The same abstract treatrnent of State practice leads to a distor-

tion of the principlestobe derivedfrom it. As was shownin SectionC of
Chapter 5 above', the use of State practice by Malta is at a level of
abstraction such that it is divorced fromthe actual geographicalcharac-
teristicsof each particular case. Thus, to take the examplecited at para-
graph 125 ofthe Maltese Memorial,the useof the median line between

the Faroesand Norway under the Agreement between Norwayand Den-
mark of 15June 1979bdoesnot support the "significanceofshort abutting
coasts".That agreementcannotbe isolatedfromthe relevant geographical
circumstancesof the area, and if regard is had tothe proximityof United
Kingdomterritory (the Shetlandsand the Scottishmainland) and the fact
that an existing median line had beenagreed betweenthose two opposite

Maliese Memorial,para.124.
'Footnot2 to p. 39 of MalrescM~morialdocs Saysornewhatcoyly, "subjectsome
adjustmentin the lattercase:Decision,paras.243-251."Note that the samea10empt
assimilatethe Malta-Libyarclationshipwith thatof the U.K.andFranceis madeai para.
238,althoughat that pointthecamparisonshifislromthe AtlanticSactorto the English
ChannelSector.
'Angk~Frcnch Arbirrorion, Dechioj 30June 1977(Cmnd. 7438). p. 89, para. 182.
[Italicsaddcd.]
'Sce alsothe Annexof ddimitation agrecmcnts.
5.66. abovcandthe Annrxof delimitation agrccmN,o.62.9. Salsoparas. 5.65and158 CONTINENTALSHELF

and equal coasts of Norway and the United Kingdom, no other solution
but a continuation of that same rnedian line was reasonable or feasible

overthe veryshort stretch of boundary betweenthe Faroes and Norway.
Thedifferenceinthe lengthofthat line,ascomparedwiththe lengthofthe
boundary Malta now claims against Libya, will not have escaped the
notice of the Court.

7.14 When the discussionof the actual geographicalcharacteristics of
the presentcasecontainedinthe Maltese Memorialisexamined,the same

kind of unreality ernerges. Inparagraph 238 it is said:

"In the circumstancesof the present case, no intervening islands
or other minor and casua1features of the geography of the area
create any complications."

Again,at paragraphs 262 and 263it is said that "there are nointervening
islands or other abnormal geographical features",and that "there is in
legal terms a complete absenceof abnormal geographical features in the

presentcasen:and, finally," ..the relationship of the Maltese and Libyan
coastlines.is quite unremarkablen.

7.15 This "rnyth of normalitynis, in fact, fundamental to the Maltese
case. It assumes that only "intervening islandsor other abnormal geo-
graphical features" take a situation outof the "normal'".And the Maltese
Memorial States expresslythat the length of the two opposite coasts is

irrelevant:

"In the present case the length of coastlinesisof little or noconse-
quence for the law of delimitation2."

7.16 This is, indeed, an extraordinary proposition. No authority is
givento support it(for the verygood reasonthat noneexists). The Court's
use of "coastal fronts"in the 1969Judgrnent is ignored, doubtlesson the
viewthat this conceptis linked to proportionality- and, in Malta's view,

proportionalityisirrelevantin the present case.The Court'smeasurement
of the relevantcoastal frontsof Libyaand Tunisiain the 1982Judgrnentis
ignored, presumably forthe samereason.Similarly,the Court ofArbitra-
tion'sstress onthe broad equality (in length) of the United Kingdomand
French coasts, tosupportthe medianlinethroughout the EnglishChannel
in its1977 Award, is ignored.The fact that in the State practice the

medianlineisgenerally used betweenoppositecoastswherethe two coasts
are broadly equa13receivesno mention.

'This poinidiscusseingrcaterdetaiaiparas.2.13and2.14.above.andat para.7.21,
below.
'MalieseMemorial,para.264.
'Sccparas5.61-5.97.abvc.11571 COUNTER-MEMORIAL OF LIBYA 159

7.17 Most paradoxical of al],however,isthefact that, far fromdemon-

strating the irrelevanceof coastal lengths,Maltais own "trapezium exer-
cise"dependsupon the lengthof the Libyancoast. Asthe neKt sectionof
this Chapter shows,that wholeartificial constructdependsuponthe cho-
sen lengthof the Libyan coastline- the Maltese "area", the northern or

upper part of the trapezium; is determined by the length of the base, the
lengthof the Libyancoast.Thus,whenMalta saysthat coastal lengthsare
irrelevant whatisreally meant isthat Malta'scoastal length isirrelevant.

7.18 Theconclusionto whichoneis forcedbythe Maltese argument is
totally at variance with the established law.The Court has consistently
emphasisedthe correlation between a State's coast and its shelf areas:

"The geographic correlationbetween coast and submergedareas
of he coastisthe basis ofthe coastal State'slegaltitl...the coast

of the territory of the State isthe decisivefactor for titletosubma-
rine areas adjacent to it'."

And, notonlyisthe coastthe basisoftitle, but it isthe starting pointor the
"startingline" for the delimitation exercisee.

7.19 It cannot t> he case, as Malta contends, that so long asa State
has some coast itmatters not what length that coast is. For the Courts
have repeatedly stressed the element of length:

"There can never be any question of completely refashioning
nature, and equity does not require thata State without accessto
the seashould be allotted an area of continental shelf, any more

than there couldbea questionof renderingthe situalion of a State
with an extensive coas~linesimilar ro that of a S~ate with a
restrictedconstlin2."

"Equity does not, therefore,cal1for coasts,the relationof whichto
the continental shelf is not equal,io be treated as having com-
pletely equal eRects4."

'ConiintniolShelj fTunisiujLibyanArab JamuhiriJudgmenl.I.C.J.Reporis 1982,
p. 61para.73.
'ibi..p. 61para74.
North SeaConfinenfalShelfJu-~mcnt.I.C.J.Re~mrts196. . 49-5para.91.[Italifs
addcd1
'Anglo-FrenchArbirroiion.DecisoJ3O Junc1977 (Cmnd.7438).p. 116,para.249.160 CONTINENTALSHELF [1581

Nor can it be right to relegate coastal lengths to the mere test of propor-

tionality', for the State's Coastis relevant to title, and the area of entitle-
ment isdirectly dependent on the extent of the coast2.This conclusion was
well expressed by Judge Bustamante y Rivero in his Separate Opinion in
the Norih Sea cases - .

"... the conclusion is inescapable that the State which has a
longer coastiine will have a more extensive shelf. This kind of
proportionality is consequently, in rnyview,another of the princi-
ples embraced by the law of the continental shelP."

7.20 The Maltese argument that coastal lengths cannot beconsidered,
as stated in paragraphs 129to 130of ils Mernorial,seernsto bethat equity

requires the cornparison of "like with like", and since the Maltese and
Libyan coastsare very unalike, theycannot be compared; rnoreover - the
argument continues - to compare unalike coastswould becontrary to the
notionof title ips oacto and ab initio.and wouldconstitute a reversion to
the unacceptable doctrine of the "just and equitable share". This sequence

of argument is simply a sequence of non sequirurs'. As was noted in the
previousChapter, in neither its 1969Judgment nor its 1982Judgrnent did
the Court proceedon the basis that the parties had "like" coasts. But if the
Maltese argument isright, howcouldtheCourt, in bothcases, haveregard
to the coastai lengths ofthe parties? And howwasit possibleforthe Court

to dosowithout itselfadopting the verydoctrine it rejected, the doctrine of
the "just and equitable share"? The sequence of argument used byMalta
sirnplydoes not withstand analysis in thelight of the jurisprudence of the
Court.

7.21 Yet it is the treatment of the geographical factors in the Maitese
useof the equidistance method which is mostastonishing. In this regard it
is necessaryto distinguish between the Maltese claim-line, whichis based

on strict equidistance, and the Maltese "trapezium exercise", which is a
forrn of "crude" equidistance. Taking first the claim-line, based on strict
equidistance, it is fair toassume that the Maltese argument forusingstrict
equidistance is based upon its characterisation of the geographical situa-
tion as "normal" or "simplew.Indeed, it isclearly assumed that, giventhe

absence of intervening islands or promontories,the situation must be
"normal5". In theory, however, "normality" cannot be equated with the
absence of promontories or intervening islands. Such a view ignores the

'Sec MalieseMernorial,paras. 129-30.
19July 1974 onthe Issuesof the Lawof the Sca.The Dcclarationrcfersexprtss'(a)
Thesizc of islands."Whaican ihis possiblymeancxccptarcaandIengih?Secpara.4.37.
abovc.
'Norih Sea ConfinentaShcv Judgmeni.I.C.J.Reporls 1969,SeparatcOpinionof Judgc
Bustamantey Rivero,p. 59. para4.
'Sce para.6.16above.
$The"mythof narmality"isalso discusscdatparas.2.13, 2.14 and 7.15, abovc.rnany other peculiarities of geographical configurationwhich can occur
and which have to be considered beforeit can beassumed that the strict

equidistancemethcd willyieldan quitable result. In the presentcase we
have a very clear exarnpleof a significant geographicalcircumstance -
the markeddisparity inthe lengthsof the twocoasts - whichistreated as
"normal" only because it is assumed that promontoriesand intervening
islandsare the sole examplesof "abnormality".

7.22 Thus, the Maltese argument is highlyabstract, and involvesthe
Collowingp'ropositions:

(i) Equidistanceproducesan equitable result betweenopposite

coasts in "normal" situations.

(ii) Here the situation is "normal", there beingno promontories
or intervening islands.

(iii) Therefore, equidistance producesan equitable result.

It can be seen that, exceptin the senseof determining that there are no
promontoriesor intervening islands,this sequence of argument doesnoi
involvean examination of the actual geographical features of the two
coastsatall. What isalsornissingisanindicationthattheoppositecoasts
must generally be of comparable length forthe situation to bea"normal"

one as claimed in (i) and (ii) above.

7.23 The correct approach would require the identificationofthe two
relevant coasts,using "relevantn in the sense that these are the coasts
which abut on thearea to bedelirnited.Thereis,in the MalteseMemorial,
no identificationof the relevantMaltese coast. We have no argument to
show why this or that length of coast is relevant: indeed,we have no
demonstration evenof the basepointswhich governand controlthe actual
claim-line. It is true that we are told that Malta enjoys a considerable

number of basepoints' but there is no basis in logic or in the law of
continental shelf delimitation forsuggesting that the number of base-
points has any significanceper s.?. The number of basepoints achieves
significanceonly whenit bears a relationship to the length of the coast.
The onefeatureof the Maltesecoast whichisstudiously ignoredisitsveTy
short iength.Todraw attention to the short lengthof Malta'scoast would
onlyserve to draw attention to Malta's deceptiveuse of controllingbase-

points. The effect created by multiple useof a single basepoint is, of
course, ta create the illusionof a long coastwhein acruality onlya short
coast is iavolved.

MolteseMemorial,paras.118-120.
'AsMaltarccogniscsinthesentenc"..manypotcntialbaxpointona longmoreor less
rcgularcoastlincarcaisensewastcor tedundant"(para. 120). 162 CONTINENTAL SHELF [lm]

7.24 In fact, if a short coast is placed oppositea long coast, equidis-
tance cannot reflectthe discrepancyincoastal lengths. This illustrated
@ by DiagraniA facing this page. Figure 1(on DiagramA) illustrates the
positionof twoStates, having facingcoasts ofequal length. In that situa-

tion, the Median Line (x-y) adequately reflectsthe similar relationship
that the coast of each State bears to the area of continental shelfg
betweenthem, and where it may besaid that the natural prolongationsof
eachState meetandoverlapinthe samefashion(in the absence,ofcourse,
of any discontinuitiesinterrupting theurai prolongations). In Figure 2
(on Dingram A), the length of the coast of State 1 (A-B) has been

reducedtoone-tenth the lengthofthe coast ofState 2 (C-D). Clearly, the
relationshipthat the coastsof each State in Figurebears to the area of
continentalshelfbetween themhas radically changed fromFigure 1.Yet,
as can be seen on Figure 2, this change produces little effect on the
equidistance line(xl-y'), which showson1y a tendency to curve slightly
upwards to the extreme leftand right of the Figure. Figu3eshowsthat
evenwhenthecoastofState 1isreducedto a meredot,the areas whichthe
equidistancemethod would allot to State I are not significantly different

from those areas allotted to Shte 1 in Figure1 and 2. In other words,
these examples demonstrate how equidistance rnay have the effect of
"rendering the situation oa State with an extensivecoastline similar to
that ofa State with a restricted coastline"'.

7.25 Thisinequitableresultisdue to the way inwhichthe equidistance

rnethod works.On Figure 1it canbe seenthat each point on the Median
Line is arrived at by taking into account one point on each of the facing
coasts. This adequately translates theequal relationship that the two
States bear to the area to bedelimited.On Figure2, however,the equidis-
tancemethodnolongerreflectseach State'srelationshipto the continental
shelf.Whileeachpoint onthe longcoastofState 2 (C-D) is- inturn and
onlyonce - taken into account for the constructionof the line, pAints

and B of State 1 are used as many times as necessary to match the
difference in lengths between the coasts of the two States. Thiss, of
course,further demonstrated by Figure3,whereonesingle pointisshown
as having, accordingto the play of the equidistancemethod, virtually the
same relationship to the continental sheas a long coastline.

7.26 Butthe distortingeffectthat the equidistance method may haveis

not onlydependentonthe relative lengthofcoastsofthe States concerned.
It alsodependson the distance separating them. In fact, the moredistant
State 1 is from State 2, the fiatter the equidistanceline will remain, and
thecloserx and x'and y and y' willbe to each other. Indeed, once the
conditionsfordistortionare presen- suchas a great differenceincoastal

'North SeContinen ~a v Judgmenr,I.C.J. Repo1969,p.49.para91.v611 COUNTER-MEMORIAL OF LlBYA 163

length - thjs elïect is multiplied by distance. However, thisdistortion
occurs not just by virtue of a flattening out of the equidistance line,as
noted above, but - more significantly - because of the larger area of

continental shelfto be dividedbetweea the two Statesdue to the greater
distance between them. As noted by this Court in 1969, the diçtorting
effects of the equidistance method may well be "comparatively small
withinthe limitsofterritorial waters, but producetheir maximum effectin

the localities where the main continental shelf areas lie further out'".
This statement, although made in the context of "lateral equidistance
lines", is equally valid in the present case, wherea great difference in
coastal lengths existsand where the distance between the two States is

considerablygreater than the breadth of their territorial seas.

7.27 The truth isthat theequidistancelineisa rnethodwhollyunsuited
tothe situation of two oppoçitecoasts of markedlydifferent lengths.The
methodissimplyincapable of reflectingthat differenceinlengths,and this

problemis rendered moreacute- and hencethe result moreinequitable
- by the distance which separates the two coasts. This is the true rele-
vance of distance in the present case.

7.28 Thesefacts were recognisedby Libya in its oppositionto Malta's

1972proposalto adopt a medianline solution. Libya's 1973 proposal,in
contrast, took into account the difîerencesin lengthsof coasisand hence
avoidedthe dis~ortingeffectofequidistanceparticularly in the lightof the
large area of continental shelf lying between the relevant coastsof the

Parties. Libyahasconsistently maintainedthat only asolutionthat reflects
this difîerence in coastal lengths can be equitable in the present case.

7.29 If one has regard to the Libyan coastselected as the "relevantn
coast in the Maltese "trapezium exerciseWi2 n the light of its use of the

equidistance method, itis apparent that it is this coastwhichdetermines
the lengthofthe medianline.Theselectionofa Libyan coastas far east as
Rasat-Tin, some 316kilometresfurther eastthan Benghazi, hasnojustifi-
cation otherthan that it isnecessarytoaccommodateathe easterly reach of

'NorrhSeo ConiineniafShelJ,Judgmeni.1.C.J.Reports 1969,p. 3'1,para. 59
'SeeSectionB, below.
'In fact. the Libyan coastdocs not quitc accornmodatethe Maltese cilwould be
necessaryto trcat part of the Egyptianas'relevant" 10achievcthat. See SectionB,
bclow.and the Anncxat thcendofthisVol.1racritiquofthe "TrapeziumExcrcisc".lt is
of interest to note that during the Intervention HcaringTunisia/Li cbayothc
castcrn limitsof the area termcd relevantby Malta wcrcplaccdconsiderablyto the wtst of
Ras at-Tin. Indeed. Counscl for Malta suggcstcdthat the "normalway" for drawing an
quidistanclincbetwt.cMalta andLibyawould bttousea basclindong theLibyan coast
fromRasAjdir toapproxirnatcSidiSucichera townlocatedsomc30kilomeiresnortheast
of Benghazi and somc 285 kilornetWest of Ras at-Tin. Sce Presentatiof Mr. E.
LauterpachtQ.C.,ai the Oral Hcarings in the Tirnisia/Libyacasc. Rqutst byMalta to
Intcrvene.Thursday. 19 March 1981.aftcrnoonsessi(CR 81/2, p.13). 164 CONTINENTALSHELF 1621

the Malteseclaim-line. Nowhere inthe MalteseMemorialisanyexplana-
tion offeredas to why this enormous length of Libyan coastline is "rele-
vant" to the delimitation. In the selection of the Libyan coast actual
geography is irrelevant: the coast is determined solely by the need to
accommodate the Maltese claim, not by geography.

7.30 With the "trapezium exercise",whichis essentiallya simplified
formof equidistance,l1the criticismsenurnerated abovetemain applica-
ble.The irrelevanceof the actual geographyisevenmore markedbecause,
@ as Figure B in the Maltese Mernorial shows, the hypothetical Maltese
coast can be restricted toa single point withoutmakingvery rnuchdiffer-
encetothe resultThe fact that thisone point liesonthe north-facingcoast
of Gozo simplyemphasisesthe total divorceof this method of simplified
equidistancefrom the actuai geographical facts.

7.31 It rnustbe stressed,therefore,that theapparent reliancebyMalta
on the relevantcircumstanceof geographyisa deception: forthe Maltese
method of delimitation- and the whole legal reasoning behind that
method - in fact paysas iittle attention to the actual facts of geography
as it does to the facts of geologyor geomorphology.

7.32 The conciusionto this Section can be statd quite briefiy.Of the
four legally relevantfactors or circumstances,ly, (i) the factors of
gcomorphologyand geology,(ii) geographicalfactors, (iii)limitations
with third States, and (iv) the conduct of the Parties, Malta ignores two
almostentirely. While Malta appearsto take account of one, geography,
in fact itoes not do so. And as to the conduct of the Parties, the one

remaining factor, Malta findsa relevancein its ownconduct whicbdoes
not exist.It can therefore bestated categocicallythat the Maltese Memo-
rial and its method fails to take account of the relevant circumstances,
contrary to the requirement in taw that full account must be taken of al1
relevant circumstancesin order to achieve an equitable result.

B. TbeMaltese"Trapeziurn Exercise"
7.33 The Maltese Mernorial contains four paragraphs (paragraphs
244 to 247) explaining therelevanceof the "Trapezium" shownas Figure
@@ B. Figure A isclearly a demonstrationof the applicationof this exercise
to the area regarded by Malta as relevant to the dispute. The whole
exerciseisdesignedto support the contention by Malta that the rnedian
linewill providean equitable solution in the present case.

7.34 '1is not the intention, in this ofthe Counter-Mernorial, to
givea fullcritique of this exercise:thdonesin the Annexat the enof
this Volume1of the Counter-Mernorial.

7.35 However, it may be of assistance to the Court if the principal
conclusions,set outn detail in tAnnex at the end of this Volume1,are
summarised here in the main body of the Counter-Memorial. Cl631 COUNTER-MEMORIAO LF LZBYA 165

7.36 The Maltese Memorial suggeststhat the rationale for the trape-

zium exercise,as a kind of geometricalproofof the equity of the median
line, rests on three "key elernents".These are:
(i) The distance between Malta and Libya;

(ii) The location of Malta, supporting a "sufficientnumber of
control points"; and

(iii) The extensive Libyan coastline.
7.37 In fact the significanceof these three elernents is neither ex-
plained norobvious.The distance(in fact the heightof the apexabovethe
base) isnot given and proves to be totally immaterial. The number of

control pointsonthe Maltesecoastisof nosignificance(and infact Figure
@ A of the Maltese Memorial uses only one point, lying apparently on the
north-facingcoastof Gozo). What is significantithe third element:the
longeastlwest Libyan coastline.For thisconstitutesthe baof the trape-
zium,and,asweshallsee,it isthe singularpropertyof the trapezium that,
with a short side at the apex, the Iength ofthe base determines the atea.
- This produces the most extraordinary paradox, for Malta's shelf (the
uppersector of the trapezium)isdeterrninedby the length of the Libyan

coast, notMalta'sowncoast, and remains so whateverthe distance or the
kngth of the baseline.
7.38 Thus, simply treating the exercise as an abstract, geometrical
exercise,there is no logiarcogencyin theso-calledrationale offeredby

Malta of the three supporting"key elernents"; twoare irrelevant ontheir
face, and the third wouldseem to defy al1Iogicas a justification forthe
equitabledivisionofthe area ofthe trapeziumby a "median line".There is
nothing "equitable"about it. Iiçsimply a fact that the area is governed
essentiallyby the lengthof the base,and witha short sidefor the apex the
ratio of areas as between the upper and lower sectors (divided by the
median line) is approximately 1:3,

7.39 If oneturns fromexaminingthe trapezium exerciseas an exercise
inabstract geometry, and looksat it as appliedto the actual coaofsthe
two Parties, then other observations havetbe made.

Firsrforal1its"self-evidentn logic,itisnot knownthat this proffthe
equitablenessof the median linehas everoccurred toStates,or to hydro-
graphers, before.

Second,the exercise is, infact, a demonstration (though an inappropri-
ate one) of proportionality, the very test which Malta holds to be
irrelevant'.
Third t,e exercise has nothingto do with the actual wastlineof the

Parties. For the lengthof the apex (Malta's coast) islargelyirrelevant to
'Se paras.6.10-6.24abovc. 166 CONTINENTALSHELF [1641

@@ the exercise and neither FigurA nor FigureB bear any relation to
Malta's actual coast. As to the long, Libyan coast, no explanation is
ofTeredby Malta to showwhythis enormouslerigthof coast is relevant to
this delimitation. The explanation appears to be that the Iong base was
necessaryto accommodatethe longmedianline.That istoSay,withMalta
havingclaimedan equidistancelinefartothe east, inthe openMediterra-

nean,it wasnecessarytodraw a trapezium largeenough (and with a base
longenough) to include withinit a median line aboutsame length as
@ Malta's claim line (see Figure A).
Fourth.as to the "equitable* proportionof 1:3 betweenthe upper and
lowersectors,this isarrivedat byexcludingareas attaching to Malta, and

includingareas as attaching to Libya whichin nosenselie betweenoppo-
site Maltese and Libyan coasts.
F$h, the median line would equally dividean area lying between the
twocoasts,butonlyonthe assumptionthat the twocoastswereequal.This
wouldbeto assumeMalta to havea coast 15.3timesas long asitreally is,
and Libya'scoast, as used in the trapezium, to be dividedby half.

Sixth. for al1the claimed "self-evident" properties of the trapezium
exerciseas a proofof the equiofequidistance, it isin fact impossibleto
use itinrelationtoa Maltese delimitation with either IorlGreece. CHAPTER8

THE APPROACHESOF THE PARTIES TO DELIMITATION
AND AN EQUITABLE RESULT
8.01 Libya'saim sincethe inceptionofthisdispute hasbeento propose
a solutionthat wouldleadto an equitable result.It was forthis reasonthat

Libya's 1973 proposal was not based on equidistance and. instead,
reflected the predominant geographical factorof coastal lengths. Simi-
larly, Libyaneveracceptedthe equidistance formulacontinuallyproposed
by Malta sinceit wouldhave led to a clearly inequitable result andwas,
thus, consideredan inappropriate approachto the solutionof the dispute.
8.02 The Libyan Memorial had as its purposeto set beforethe Court

al1the relevant factors and circumstances of the present case. together
with Libya'sunderstandingofthe principles andrulesofinternational law
relating to delimitation of the continental shelf, and to suggest a result
whichwould beequitable. Since the Libyan Mernorialand this Counter-
Memorial in effectconstitute an integrated presentation of Libya'sposi-
tion',tiçunnecessaryat thisstageto go further intothe factual and legal
basisof Libya'scase:the relevant factorsand circumstancesand applica-
ble principles andlesof international lawhave beenfullyset out. It was

alsoshownin the Libyan Memorial howthe positionof Libyaas to which
areas of the continental shelf appertain to Libya and which to Malta-
separatedby a boundarywithin, andfollowingthe generaldirectioof.the
Rift Zone-would refiect and be consistent withal1the relevant factors
and circumstances of the present case.It is, therefore, not necessarythat
this be demonstratedagain here. However,il is appropriate to reviewthe
positionsofeachofthe Parties inorder to pointup the differences between

the approach of each in applyingequitableprinciplesand in respect tothe
equitablenessof the resulto which their positionswould lead.
8.03 These differencesare brought out by the fact that whereas the
-Libyan approach has been to focus on the relevant factors and circum-
stancesof the presentcase and to finda solutionthat wouldbe equitable,
the approachtaken inthe Maltese Memorialhas beenqnite difierent.This

isweilillustrated bya paragraph in Malta'spleadingwhichpurportsto be
a resume'of the "equitable principlesand considerations relevant to the
present case" where it issaidthat in the "geographical circumstances
presented by the present case,departure from the equidistancemethod
would involvea massivebreach of the principle of non-encroachmentz".
Aside frorn the fact that no attempt is madeby Malta to support this
pronouncement by the facts of the present case orby the law, it is, in
reality,an inversionof the true situatFor.whenMalta blandlyruns its

trapezium lineaacross the eastern boundaryof the Pelagian Sea and out

'Sec para.10of the Introduof this Counter-Mcmoriaalt p. 5, above.
@ MalieseMcmorialpara.234 (k). FAgai p. 11theMoiresMemoriolcvcngowso
farasIOsuggcstthatthc naturalprolongationsof Libya andMalta arcidcntical.
@ ' lbid.FigureA.aip.1B. 168 CONTINENTAL SBELF Il661

acrossthe IonianSea-in total disregardof the geomorphologyof the sea-
bed aswellasof the presenceof Italy and Greece - and claimsa natural
prolongationeastward from a tiny piece of Maltese coast al1the way to
Ras at-Tin on the eastern shore of Libya, it is Malta which attempts to

encroach on areas of shelf which are the natural prolongation
of Libya from its large land territory and extensiveast. This extreme
claim of Malta - across areas east of the area of concern in the present
case that have no relationship to Malta's coasts - fits rather well the
descriptive phraseusedin the Maltese Memorial of a "massiveencroach-
ment". But it is Malta's encroachment on the natural prolongation of
@ Libya and not the reverse. This point is well illustrated by Mop 18.
8.04 Malta has also calledupon the Court, in effect,to put aside the

rules that have evolved inconnectionwith continental shelf delimitation
because Malta is a small island State which presently has no petroleum
resources. However,these facts do not make irrelevant the coasts of the
Parties in the present case; nor dotheyjustify ignoringthe major disconti-
nuitiesin the sea-bedandsubsoilof the continentalshelflying betweenthe
coasts of the Parties and limitingalta's entitlement to the south and to
the east. Yet this is the effectof what Malta has askedof the Court in its
Memorial.

8.05 Libya'spositioncontrasts sharplywiththe inflexibleMaltesedec-
laration that onlythe equidistance solutionwillavoida massive breachof
the principleof non-encroachment. The end result, in Libya'sview,must
survivethe testof an equitabie resuit of whichproportionality is a princi-
pal criterion and the comparative lengthsof the relevant coasts of the
Parties a major factor. Libya believes that a delimitation within and
followingthe general direction of the Rift Zone accords with the test.
However,Malta seeksto disqualifythe applicationof proportionalityas a
test of the equitablenessof the result,just as it seeksto avoidan examina-
tion of the facts of the case. Malta seeks refuge in a series of alleged
principles, in hypothetical examples, in irrelevant considerationsand in'
artificialconstructsand theautomatic applicationof mathematical means

- the equidistancemethod and the trapezium exercise - which do not
deal withihe relevant factors and circumstances.Malta has alsoresorted
in its Memorial to the technique of repeating assertions which were not
initially correct in the expectation, it seems, that with repetition they
might gain plausibility.

8.06 Perhaps the ieading example of this technique isMalta's asser-
tion, which is wovenal1through the Maltese Memorial, that "Malta's
Equidistance Line" has becomethe starus quo in the present case. The
numerous defects in this argument have been dealt with in Chapter 1
above.What is revealingis that Malta, havingstated that the conduct of
the Parties isa relevantcircumstanceof the present case,fails to bringto
the attention of the Court the only example of conduct that might be
regarded to be of legal relevancebecause it involvedthe conduct of boih
Parties, not merely Malta. This was the no-drilling understanding COUNTER-MEMORIAL OF LIBYA 169

between theParties, at the timeofenteringintothe SpecialAgreement,in

areas lyingbetweenthe linespropied by Malta in 1972and by Libya in
1973.In fact, until the Texaco-Saipemincident of 1980, no drilling by
either Malta or Libya hadoccurred there. Libya'svigorousreaction in
1980whenthisunderstandingwas breachedby Malta must beseenin this
light.
8.07 It is quite astonishinghowobliviousthe Maltese Memorial isto

the presenceof neighbouringStates with which there are, or in al1likeli-
hd will be, continental shelf delimitations.Surely, this is an important
relevant circumstance in the present case that must have the effect of
keeping the claimsofal1theStates in thisconstrictedarea ofthe Mediter-
ranean within reasonable bounds and that must affect the present
delimitation.
8.98 The physicalfactors of the presentcase also revealhawdifferent
this case is from other cases of delimitation of the continental shelf
examined in Chapter 5 aboveand analysed in the Annex of delimitation
agreements. The importance and rarity ofthese featuresand the unique-
ness of this particular setting is pointed up by this analysis. Malta's

suggestionthat the examplesof "State practice" selectively discussedin
the Maltese Memorial provideobjective evidenceof the equitableness of
applying theequidistancemethod inthe preçentcase- asidefrom beinga
non se~uitur - is factuaHywrong, as this study of delimitation agree-
ments shows.
8.09 It isalsoimpossiblefor Libya toagreethat the physicalsetting in
whichthis delimitationisto occur can bedescribedon any objective basis
as "simple"or "normalnand, in particular, that thesea-bed and subsoilof
the continental shelf can be viewed as a "continuumn and lacking in
"unusual featyres". The features constituting the Rift Zone and the

Escarpments-Fault Zonewhichinterrupt the continuityof the shelfto the
southand eastofMalta refute completelysucha description. Soalsodoes
the geographicalcontrast ofcoastal lengths.
8.10 Libya hasdemonstrated in considerabledetail that the physical
features constitutingthe Rift Zone which cuisacrossthe shelfartas lying
between Libya andMalta and the Escarpments-Fault Zone forming the
eastern limits of the shelf area underlying the Pelagian Sea are major
discontinuitiesin the sea-bedndsubsoil af the continentalshelf. Likethe
short length of the relevantcoast of Malta incornparison to Libya'smuch
longercoast, these physical factorscannot be brushed aside.They consti-
tute relevant factorand circumstancesof the present case that go to the

entitlementof the Parties toareas of shelf and to the delimitationof such
areas between them.
8.11 Thus, in Libya's view, it is the selection and weighing of the
relevant factorsand circurnstancesof the presentcase - particularly the
physical factors- which is fundamental. By this means an equitable
result maybe reached through the application ofequitable principles,one
ofwhichisthe rtquirement ihat ihe result meetthe test ofproportionality.170 CONTINENTALSHELF [167-1681

Nothingin the MalteseMemorial has indicatedLtio byaany relevant
factsorlegalprinciplesset forthintheLibyanMernoria lequiringany
modificationinthis Counter-Memorial. Accordin aslw.ibe seeninthe
followingpartof this Counter-Memoria tleSubmissions of Libyacon-
tained in its Memorial are confirme and maintainedwithout
supplementation.SUBMISSIONS Libya confirrnsand maintains its Submissionsmadein its Memorialas
follows:

In viewof the facts set forth in Part 1 of the Libyan Memorial.the
statement of the lawcontained in Part Il, and the arguments applyingthe

law to the facts as stated in PartIIIof the Libyan Memorial; and
in viewofthe observationsconcerningthe facts asstated inthe Maltese

Memorial and the statement of law as therein contained, and the addi-
tional facts andthe statement oflaw containedin this Counter-Mernorial;
and

Considering rhai the Special Agreement between the Parties requests
the Court to decide "what principles andrules of international law are
applicable to the delimitation of the area of the continental shelf which
appertains 10the Republic of Malta and the area of continental shelf
whichappertains to the Libyan Arab Republic,and how in practice such
principlesand rules can be applied by the two Parties in this particular

case in order that they may without difficultydelimit such areas by an
agreement" in accordance with the Judgment of the Court:

Muyif pleusethe Court,rejectingal1contrary claimsand subrnissions,
to adjudge and declare as foilowsl:

1. The delimitation is to be effected by agreement in accordance
with equitable principles and taking account of al1 relevant
circumstances in order to achievean equitable result.

2. The natural prolongation of the respective landterritories of
the Parties into and under the sea is the basis of title to the
areas of continental shelf which appertain to each of them.

3. The delimitation should be accomplishedin such a way as to
leaveas much as possibleto each Party al1areas ofcontinental
shelf that constitute theaturai prolongationof its land terri-
tory into and under the sea, without encroachment on the

natural prolongation of the other.
4. A criterion for delimitation of continental shelf areas in the

present case can be derived fromthe principle ofnatural pro-
longation because there exists a fundamental discontinuity in
the sea-bed and subsoilwhich dividesthe areas of continental
shelfintotwodistinctnaiural prolongations extending from the
land territories of the respective Parties.

'Thc nurnbcredSubmissionartastheyappcarin the LibyaMcmorial.174 CONTINENTAL SHELF [172]

5. Equitable principles do not require that a State posseçsinga
restricted coastlinebe treated as if il possessedan extensive
coastline.

6. In the particular geographicalsituation of this case, the appli-
cation of equitable principles requires that the delimitation
should take account of the significant differencein lengths of
the respective coastlineswhich face the area in which the
delimitation is tobe effected.

7. The delimitation in this case should refiect the elernent of a
reasonabledegree of proportionalitywhich a delimitation car-
ried out in accordancewith equitable principlesought to bring
about betweenthe extent of the continental sbelf areas apper-
taining to the respectiveStates and the lengths of the relevant
parts of their coasts,account beingtaken ofany other delimita-
tions betweenStates in the same region.

8. Applicationof the equidistance method isnot obligatory, and
its application in the particular circumstances of this case
would notlead to an equitable result.
9. The principlesand rules of international lawcan in practice be
applied by the Parties so as to achieve an equitable result,
taking accountofthe physicalfactorsand al1the other relevant
circumstances of this case, by agreement on a delimitation
within.and followingthe general direction of,the Rift Zoneas
defined in the Libyan Mernorial.

(Signed) ...............................................q..-......,
ABDELRAZEG EL-MURTAD SIULEIMAN
Agent of the Socialist People's
Libyan Arab Jamahiriya ANNEX

A Critiqueof the"Trapezium Exeicise"

Malta's Memorial providessomefour paragraphs (paras. 244-247) by
@ way of explanationof "The Trapezium" shawnas Figure B. It issaid that
"this figure provides a means of understanding the equitable solution

resultingfromthe useof a median linein the divisionof the areas of shelf
lying between Malta and Libya" (para. 244).
1. TheMernorial'C s ommentary on theFigure

The four paragraphs of the Memorial do not, in fact, provide aoy
rationaleforthe useofthisfigure.The commentarybeginswitha perfectly
acceptable general propositionviz "the equitable solutionwhich the law
calls for is the product of the coastal configurationand the other relevant
circumstances" (para. 245). Itthenidentifiesthree "keyelementsnin the
coastal relationshipsofMalta and Libya, and these need to be exarnined
with care.

First elemeni
" (a) The distancebetween Malta and the Libyan coastline;and
since it irelationship which is the key, it is precisely the
distance, in conjunction with the location of Malta and the

long regularcoast of Libya, which is the significantfactor."
Yet,ifdistanceisthe significantfactor, why isthe distancenotgiven;or,
indeed,why is it not demonstrated that the trapezium workswitha short
distance and not a long distance (or vicversa)? In fact, if Figure B is
lookedat simplyas a geometrical figure itwillbeapparent that the shape
of the trapezium- and therefore the arealratio betweenthe two sectors

north and south of the median line - isdererminedessenrially by the
lengrhof the base ofthe trapeziumchosen for rhejgure. As we shall see,
inreal terms this meansthe lengthof the relevant Libyacaast chasenby
Malta.
Second element

"(b) The location of the Malta group of isiands and the opposite
relationshipthereof tothe Libyan coastlineoducesa particu-
lar efïect:a critically locatedMaltesegroupof islandssupports
a suficient number of control points."

It isnot veryclear whatthiissupposed tomean.The locationof Malta
inrelationto Libyaseemsto benomorethan a repetitionof the elementof
distance.In sofar as it produces"aparticular effect' weare nottold what
thisefïect is. The "critical" locationof Maltasemble, yet another way
ofrevertingtothe factorofdistance.The onlynewelement isthe reference
to Malta supporting "a suficient number of controlpoints".176 CONTINENTAL SHELF Pl

But when one looks at the trapezium, whether as a purely geometric
figure (Figure B), or as a figure adapted to the actual map of the area
(Figure A), it willbe seen that neither figuredepends in any way on the
number of control points on the Maltese coast. Figure A, for example.

seems to depend on one point only, lying somewhat surprisingly on the
north-facingcoasrofGozo; and Figure 0 uses two pointsonly,the east and
Westextrerne points of the short coast of StatA, from which to dropthe
sides of the trapezium. Thus, it is by no means clear that this "second
element" is saying anything (or anything intelligible) at all.

Third elemen~

" (cj The extensivewest-eusrreach of the Libyan coastline, in con-
junction with the "set back" locarionof Malta, results in a
trapezoidal figure: that is to say, the Libyan coastal extent is
appropriately reflected in the southern segment of the trape-
zium (Figure B, Zone 2). and the equidistance method of
delimitation places equitable limits upon the latitudinal and
southerly reach of the Maltese continental shelf entitlement
(Figure B, Zone 2). The median line constitutes a natural

northern boundary to the southern segment of the trapezium."
This, in itsirst phrase, reveals yet again that it is the Libyan coastal
extent, whichconstitutes the baseof the trapezium, that essentiallydeter-
minesthe shape of the trapezium. Itissaid that the Libyan coastal extent

"isappropriately reffected in the southern segment of the rrapezium".
Why so? Where isthe argument or demonstration to showeirherthat the
particular length chosen is the correct length or "relevant coast" or that
Zone 2isan appropriate reflectionofthat coastal length? There is, in fact,
no such argument or demonstration.

In addition,we are told that the median line constitutes a "natural"
northern boundary to the southern segment (i.e.to Libya's shelf). Yet
nowhere are we told why this is "natural": it is the age-old device of
asserting ttiings (preferably withthe aid ofdiagrams whichseem to endow
the assertions with the accuracy and objectivitof the scienceof mathe-

matics) and hoping that they will be believed.
The remainder of this section isinsimilar vein. Without any supporting
argument or demonstration we are simply told that "the principle of
appurtenance is observedn (para. 246); that "the result is in cornplete

conformitywith the principleof non-encroachment" (para. 247); and that
"as a matter of equitable principlesand of ordinary logic...wirhin the
zones betweenthe twocoasrlinesonlyequidistance can produce an equita-
b1esolution" (para. 247).

The conclusionmust be that, on the baçisof the commentary offered in
the Maltese Mernorial, there is no cogency whatever in the reasoning C31 COUNTER-MEMORIAO LF LIBYA 177

ofiered in support of the trapezium exercise. Neverthelitmight con-
ceivablybe the case that, notwithstandingthe paucity of reasoningin the

Memorial, Malta had in fact contrived uporia geornetrical proof of the
equitableness of the equidistance method. It is therefore necessary to
examine the trapeziurn exercisequite independentlyof the lack ofjustifi-
cation in theMaltese Memorial.

2. The Trapezium Exerciseandthe Equidistance Method

There is,toLibya'sknowledge,no known exampleofStates everhaving
used the trapeziurn illustration in devisinga boundary betweenopposite
coasts. True, there must alwaybe a first occasion for any practice.Yet
there isan initial worry in the realisation that what is ofTeredas a self-
evidentdemonstrationof the equityof the equidistancemethod hasnever

before been seen as such by States or their hydrographers.

There is a further worry simply in terms of the inconsistencybetween
the trapezium exerciseand Malta's insistenceelsewherein its Memorial
(especiallyChapterIX) that proportionality is not applicable in the case
of oppositeStates. The Maltese ;issertion,in the "third element", that the

Libyan coastallengthis"appropriately reflected"in the southernsegment
of the trapezium would seem to be an assertion about proportionality.
Moreover, itisclear that the contractionorthe extensionofthe baseofthe
trapezium must affectthe area of the trapezium and, therefore,of the two
sectorsofthe trapeziumdividedby themedianline.One mightbeforgiven
formisconstruingthe trapeziurnexercix as, ifactan attempted demon-
stration of proportionality. The contradiction between this exerciseand
the Malteseout-and-out rejection of proportionalitytherefore remains an

added worry.

Finally, there is the disconcerting contradiction between Malta's
emphasisin paragraph 144 of its Memorial that the coastof the terrilory
of the State isdecisivefactor for title to submarineareas adjaiand to
the simple fact that the trapezium exercise ignoresthe coasts of the

@ Parties. In FigurA of the Maltese Memorialthe Islandof Malta seemsto
betotallyirrelevanttotheshapeor sizeofthe trapezium, which,aspointed
out above, dependson one point somewhereon the north coastof Gozo,
@ facjng Sicily. In FigurB the "short coast" of State A is an entirely
artificial construçt, one has no means oftracing howit relates to the
actual coast of Malta. The same is true for the Libyan coastin Figure B.

However, iisnecessarytoset asidethesewarriesand inconsistenciein
order to concentrate othe real defects of the trapezium exercise.These
defects can be stated in the foroffour propositions.178 CONTTNENTAL SHELF L4]i

(i) Tùe trapeziuminfactassume that theMaltese coastis of
equallength totheLibyancoast

Inthe Figure below,the Maltese trapezium exhibited in FiguBehas
beentaken as the basic form. State A (Malta) hasa coastline AB and
State B (Libya) a coastlinCD. Assuming the median line boundary
(XY) to be a true median line between real,oppositecoasts, the dotted
lines have been inserted to complete the rectangle A'B'D'C'.The coasts
which would be accurately and equitably reflectedby such a median line

boundary would be for Malta, A'B'and for Libya,CD'

STATE A

STATE B

[7 Areasassumed to altash to State Aamilted fmmTrapeiium.

Areasassumed to attactoState 8 bunot ifactlying between
men the lictifioEOBS~Sand beyond the media" iioe.

-Thus, the trapezium "creates" an entirely fictitious coast for

Malta-theline A'B'.InMalta'sFigure8, State A'scoastismultipliedby
15.3.At the same timeLibya'sactual coastisreduced fromCD toCD'.
being dividedby 2. So much for equity not "re-fasbioning nature*! FI COUNTER-MEMORIAO LF LIBYA 179

(ii) The trapeziumassume asproportionalitbetween the two
shelfareasby ignoringareasattacbingtoStateA (Malta)
andaddingtoStateB'sarea (Libya's)areasof shelfwhicb
Libeyùnd thelateralreachofthemediinUneand cannot be

saidtoliebehveen eveathefictitiouscoasts

As theFigur ehownabovedernonstrates,in the northern (or Maltese)
sector there are two large area- indicated by a speckled or dotted
pattern- whichlie directly above the median line and directly between
the Libyancoastand the fictitiousMaltese coast whichare omitted from
the trapezium. They are, inïect, areas ofshelf whichwould beassumed
to attach to State A (Malta) but which are totally ignored by the
trapeziurn.

Bythe sametokenthe hatched-areasin the southern sectorare attached
to State B (Libya) even though theylie beyondthe Iateral reaofthe

median line and couldnotremotely be said to lie "between"the Libyan
and Maltese coasts, or even the extended, fictitious coastA'B'.

It is only by dint of excludingareas attaching to State A (Malta) and
includingquite extraneousareas as attaching to State B (Libya) that the
median line through the trapezium is given some sernblance of
proportionalit.

(iü) The application ofthe trapezium constructo the acîual
area in FigureA of the Maltese Mernorialdemonstrates
thatthecboiceoftherelevant Libyacnoast wasdetermined
solelyby theneedto accommodatethe Malteseclaimline

The question arises as to why Malta has chosen to regard the Libyan

coast as far east.as Ras at-Tin, some 316 kilometres further to the east
than Benghazi,as relevant toa delimitation with Malta. The answer is,
quitesirnpiy,that thiswasnecessary toaccommadatethe Malteseclaimed
equidistance line withinthe trapezium.

@ On Map A followingthis page, theMaltese FigureA has beentaken as
the basic figure,and ariesofpossibletrapeziurnsconstructeOne such
could havea base as far east as Ras Zarrouq (Base A, eastern side a);
another at the southeasterlyextremity oftheGulfof SirteB, eastern
side b); another at Tolemaide (Base C, eastern sidc); and the one
actually used by Malta (BasD, eastern sided). In fact eventhis trape-

ziumdoesnot quitetake in the mostextrerne,easterlypointofthe Maltese
claim (at pointX). The reason for this awkward "gap" between the
Maltese trapezium and the Maltese claim is, presumably,that any trape-
zium whichernbraced the entire Maltese claim linewouldhave to haae
base and an eastern side which met on Egyptian territory.180 CONTINENTAL SHELF [61

Thus, whilst nota perfect fit, the trapezium in FigAreisdesignedto
embrace as much of the Maltese claim, and get as close to PointX, as
possible:andthe baseofthe trapezium hadto be longenoughto accommo-
date thisextremeeasternside.It means,therefore,that Libya's "relevant"

coast has no other rationale than to accommodate Malta's trapezium
construct and,by that means, Malta's most easterly claim.
(iv) Thettapeziumconstructinvolvesdetermining theshelfarea
of StateA byreference,notto thelengthof itsown coast,
butto thelengthof the coastof theoppositeState B

It willbeapparent sirnplyfrom a comparisonof Malta's FiguresA and
Bthat the lengthofState A's(Malta's) coasthasvirtuallynoeffectonthe
shape of the trapezium and, therefore, thsizeof the northern sector of
shelfattaching toStateA. WhetherState A isconceivedofasa shortcoast
or one single point makesverylittle differenceto the shapeand sizeof the
trapezium. The elementwhichgovernsis the length of the base, the coast

of State B (Libya). We thus have the extraordinary situation in which
Malta'sshelfentitlement isto bedetermined byreference tothe lengthof
Libya'scoast,a result sostartling that onemight beforgivenfor forsaking
thelogicalworld of geometry and seeking refuge incommonsense.
Itwouldalso seemto be the property of the trapezium that once the
ratio betweenthe lengthsof the twoopposite coastsis as highas 1:10,the

medianline willallocate the area within the trapezium in the ratio of one
to three. In fact with a trapezium the exact rati1:3is achievedby a
medianline whenthe trapeziumhas an apex, a singlepoint, not a line. If
the ratio of the coast1:10 the ratio of the areas is rather morethan 1:3
(in factitis 1.3:3.1)But as the base gets longerand the ratio of the
oppositecoastsgetslarger than1:10,sothe ratio ofareas getsclosert:3.
Moreover,from that pointon, howevermuch the baseof the trapezium is
extended,the ratio willremain thesame.TheFigur eelowillustrates the
foregoing. Thus, whateverthe lengthof the Libyan coast, Malta wouldalwaysget
one-third of the trapezium area. This conclusion equallyillustrates the
point that Malta's shelf area is made to depend on the Libyan coast, not

Malta's own coast.
3. Tbe Trapium Applied to Other,NeighbouringDelimitations

If the trapezium had any validitasa proof of the equityof the equidis-
tance method it shouldbepossibletoassumethat it would bevalidnot only
in relation to Malta's delimitation with Libya but alsoin relation to
Malta's delimitation with Italy and Greece.
Map 3 foliowingthis page is an attempt to illustrate how the "proor'

would operate in relation to these two States,as wel1as to Libya. The
illustrations,ofcourse, subjectto thecriticismthat the choiceofthe bases
of the trapeziums is arbitrary: but that, indeed, is the property of the
trapeziurn exercise.
The striking featureofthe illustration is that Malta, as an islandwitha
shelf entitlement for 360" around its coasts,does remarkably wellfor its

size. In fact, its size does not really rnatter.
The trapezium isobviouslyill-suitedtoa basecoastlinewhichcannot be
reduced to a straightline.With Italy,for example, the exercisescarwly
works at all, for Sicily is in the wrong place and either gets embraced
within the trapezium or, if excluded, prevents anytrapezium being con-

structedtothe eastvis-à-visItalyInany event,there isanoverlapbetween
the trapeziums with Italy and Greece. Ccrtainly this overlap could be
reduced, but thereis no obvious,rational test by which one could deter-
mine how much of the Greek coast should beused as the base for the
Malta/Greece trapezium.

The possibilitofan Italy/Greece delimitation is necessarilyexcluded,
for Malta's opposite relationship toboth Italy and Greec excludes an
oppositerelationship between Italy and Greece in the same area.
The conclusion mustbe that the trapezium exercisevis-à-visItaly and
Greece is unworkable,producesresults totally inconsistent withexisting
delimitations, and is plainly inquitable. Why, therefore, does Malta

assume that the same exercise producesa valid test of the equity ofthe
mcdianline vis-à-vis Libya? VOLUMEII
Partl

ANNEX OF DELIMITATION AGREEMENTS
TO THE COUNTER-MEMORIAL
OF THE LIBYANARABJAMAHIRIYA A. Organisation of the Material

1. The focusof the ensuing analysis of delimitation agreements is on
delimitations of the continental shelf. It must be noted, however,that
delimitation treaties Vary from agreement to agreement and that the
accords often refer to "maritime boundaries", "maritime frontiers", or

"submarine areas", as well. Nonetheless agreements dealing exclusively
with the delimitationof the territorial sea have not been includedbecause
of their marginal relevanceto a caseconcerningthe continental shelf.Nor
has national legislation,which is unilateral in character, been treated in
this Annex.

2. These agreements have been asçembled and analysed in order to
place Malta'scontentions regardingState practice in proper perspective '.
Libya has attempted not to be selective in its choice of examples of
continental shelf delimitation to present to the Court. Accordingly, this
reviewof delimitation agreements includeseveryexampleconcerningthe

continentalshetfihe detailsof whichare knownto Libya. In Libya'sview,
it is only Fromsuch a completeanalysis that the delimitation agreements
can be accurately examined and proper conclusionsdrawn.
3. By and largethismaterial bas beenarranged chronologically. Occa-

sionally, where two States have negotiated morethan one boundary or
have extendedan existing boundaryby meansof a subsequent agreement,
those activities have been grouped together for ease of reference2.
4. The discussionof each particular examplehas beenstructured inan

objective fashion under common headings such as date of signature,
methodof delimitation specifiedin the agreement, length ofthe delimita-
tion lineand presence,if any, of third State delimitations. A brief com-
ment has been added at the end of each example to point up factors of
particular interest.

5. The analyses of the agreements are followedin each instance by a
map depicting the actual course of the boundary and bythe text of the
agreement (in translation if the originalis not in French or English). The
maps used are based on the new GEBCO series of bathymetric charts

'Libyaconsidcrsthibodyof Statcactiviticbeof lirnitcdrelevariccta theprcsentcase.
andrcservesits position regardinhftheagreementscitedhcrcin. Thequestionof the
Iegalrclevancofthis matcrialis discusscdin the Counter-Mc, aras.5.54through
5.60.
mcntswcrcnegotiatedand these haval1bccndiscusscdundcrNo. 24 hcrcin.ratragrce-C1-21 ANNEX OF DELIMITATIO AGREEMENTS 185

recentlycompletedl. These offerthe most up-todate, uniformportrayal
ofworld-widegeographycoupled withthe bathymetry ofthe bottomofthe
sea. Reference io these maps enables the delimitationsto be viewedin

their overall physicalcontext- that is, in the context of the particular
landmasses and coasts involvedand of the sea-bed, unobscured by the
columnof water lying above.In some instancesseveralindividualdelimi-
tations have been depicted on one map in order to illustrate the relation-

ship each bears Lo others in the same general area. Obviousexamptesof
areas where numerous continental shelf delimitations have been estab-
lished are in the North Sea, the Arabian-Persian Gulf and, to a lesser
extent, in the Caribbean Sea and the eastern portionof the lndian Ocean.
6. Twoother mapshave been includedfollowingthis iniroduction for

convenience of reference. The first rnapshowsthe geographical and geo-
morphologicalsetting of the present case between Libya andMalta and
may beusefulas a pointof referenceincomparingthe physicalcharacter-
isticsof the present caseto thoseexhibitedin other situations. The second

map isa map of the worlddesignedto assist iniocatingthe generalsetting
of each particular delimitation agreement discussedin this Annex.

B. EmergentThemes

7. Ifthere isany single,dominant theme that emerges from acornpre-
hensivereviewof individualdelimitation agreements,it is that every case

is unique. This is so both factually and textually.
8. Textually,a large nurnberof agreements do not specifythe precise
method uponwhichthe delimitarionwasbased.Ofthosethat dogive some
indicationof the method employed,a number referto the useof a median
or equidistance line, sometimes withan explanation that "modifications"

or "adjustments" have been made. Others refer to the use of a fixed
azimuth, a loxodrome, a perpendicular to the Coastor a line of latitude.
Still others recite the parties' desire to establish a boundary in a ''just,
equitable and precisemanner". Some agreements indicatethat delimita-
tion wasagreed in accordance with equitable principles whilein several

instancesthe agreements providethat in the particular case applicatioof
the equidistance method achievesan equitable result. In one exarnplethe
agreement Statesthat the boundary was established "on the basisof the
principle of equidistance or equity as the case requires2".

. .
'The mapsappcaringinthisAnncx havebccnprcpartdby the UniversiofMaryland,
BaltimoreCountyundcrthedircctionScottB. Edmonds, ircctorofCartograpcem-
iccsandareforpurposesofillustraonly. The'GEBCO" stries(GcncralBathymctric
Chartof theOccans)ispublishcdbytheCanadianHydrographcervice.Ottawa,Canada,
undcr theauthorityof the Internatl ydrographcommissio anndthe lntcrnational
OccanographiCc ommissioofUNESCO;5thStries.Insomcinstanceswherc largscalc
mapshavebccnincludcd,foastal lcaturcshavebeetakcnfromUnitedStarcsDelensc
MappingAgency charts.
Sec No. 52herein.186 CO~NENTAL SHELF 12-31

9. What is clear is that the texts of the agreementsseldomshed much
light on the factors or circumstances the parties consideredto be relevant

in establishingaparticular boundary.Thisonly servestohighlight the fact
that existing delimitations are the result of negotiation and that, conse-
quently, the factorsthat playeda rolein an ultimate solution mustremain
làrgely the subject of conjecture. It is possible, forexample,that factors
totally extraneous to considerationsof legal relevance to delimitation of

the continental shelf may also have had an influenceon the result.
10. On the other hand, it is possibleto draw certain conclusions from
the geographicaland geomorphologicalcontext of each case.This, how-
ever,only servesto illustrate thesecondaspect of these agreements which
makes each of them unique in its own right; that is, the factual setting of

each case. To quote from an expert source in this field:
"[Elvery maritime-boundary situationis geographically unique.
In this context,the term 'geographic'is utilized in the basicsense,
that is,the locationalarrangement andthe interrelationoflandand

water. Factors would include, for example, the coastal configura-
tion and relationship; the size, the presence, and the location of
prominentfeaturessuch ascapes,bays,islands,and low-tideeleva-
tions; and relative and absolute scales and distances'".

11. The particularity of each delimitation example is eyident from an
examinationof the accompanyingmaps. Theseattest to the wide diversity
of settingsencounteredand, consequently,tothe widevariety of solutions
reached.The geographical andgeomorphologicalfactorsare quite distinc-
tive in'eachsituation. This isnot toSay that certain parallels cannot be

found. Butto characteriseany particular setting as normal contradictsthe
basic faclsofgeographyand geomorphology.It isa term withoutmeaning
idsuch a context.
12. Another important theme that emerges from an examination of
existingdelimitations is that there is no one method of delimitation that

States havefelt compelledto use in everysituation. A variety of solutions
are encompassed by the agreements. This is hardly surprising given the
multitude of factual situationsStates are facedwith in differentdelimita-
tion seltings.

13. In particular,itisapparent that there hasbeennoautomatic use of
equidistanceand that, particularly in recent years, States have tended to
employ other methods of delimitation. Even in those cases where the
equidistance method obstensiblywas applied, there is no indication that
the States involvedfelt legallyobligated to do sot. Rather,itmay be seen
from the maps of the individual agreements that in those cases where

'Hodgson,Robert D. andSmith, RobertW.,"BoundaryIssueC srcatcdby Extended and
=Thisaspect of thelcgalrclcvanceof thedelimitationagreementsisdiscusscdinChapter5
(C) (1) of thc Counter-Mernorial.c34 ANNEXOF DELIMITATION AGREEMENTS 187

equidistance wasutilised, the coasts of the partieshave generallybeen of
comparable length or configuration and there have been no marked
geomorphological disniptions in the area to be delirnited. Itmay be
supposed that, in thescases, the States involved employed aparticular
method because it was simpleand not contentious and produced a satis-
factory result.

14. In many cases the equidistanct mtthod has tvidently not been
vitwtd as appropriate and the States have established their boundaries
using othermethods. At times, this hasken the caseeven though one or
more of the States involvcdactively supported equidistance during the

Third Conferenct onthe Lawofthe Sea.Spain, forexample,co-sponsortxl
United Nations Document NG 7/2 during the dtliberations athe Third
Conference. This did not prevent Spain from altering its stance in its
continentalshelfdelimitation with France in the Bayof Biscaywherethe
parties employedquite a different method to dclimit the seaward portion
of theirshelf boundary'.So also did the Netherlands- a CO-sponsoorf

Document NG7/2 - agree with Venezuelaon a delimitation araund the
Dutch Antilles which discardd quidistancc infavour of a delimitation
'based upon equitable principleswusingother methods. In a similar vein,
Japan's support for the equidistance method in the Thirdonfertnct did
not hinderitfrom agreeing withthe Republicof Korea ona jointdevelop
ment zone unrelatcd to quidistance in their agreement'.

15. Inshort,an examination ofcontinentalshelfdelimitationssuggtsts
that States havhad a firmappreciation"that ininternational lawthere is
nosingleobligatorymethodof delimitation and that severalmethodsmay
k appliedtooneand thesamedelimitation'".AsthisCourt observedinits

1982ludgmcnt in the Tunisia/Libyacase:
"The subsequentpracticc of States, as isapparent fromtreaties on
continental shelf boundaries, showsthat the equidistance method
has been employed in a number of cases. But it also shows that

States maydeviate from an equidistanct line,and havemadeuseof
othcr criteria forthe delimitation, whenever they faund this a
better waytoarrive atan agreement ..Treaty practice, as wellas
the historyof Article 83 of the draft conventionon the Law of the
Sea, leads to the conclusionthatequidistancernay beapplied ifir
leads to an quitable result; if not, other methods should bc

employed'".
'Soc No.34below.
'Sec Nw. 35and57 bclowOthercxarnplemightbccittdinthircsw. Portionsofthe
Italy-TunisandItaly-Yugosal gavemaentsabandonquidistandcspitthcfactthat
ItalandYugoslaviaupportcdtquidistsasthgeneramethadofdelimitationdurthe
ThirdConference.
'ContinentaSheÿ (Tunisia/LibyanAra&Jamuhiriyol.ludgmrnr.IReports1982.p.
79. para.1I1.
'Ibid.p.79.para. 109.188 CONTINENTALSHELF E4-51

16. What isalsoapparentfroma reviewofthebodyofexistingdelimi-
tationsis that noexampiepresentsa geographicalsituationtruly analo-
goustothat inthepresentcase.Notwostretchesofcoastarepreciselythe
sarnt;nor is the relationshipbetweentwocoastsinone situationexactly
likethatin another.Libyarespectfullyinvitesthe Court to examinethe
mavoftheLibya-Maltasettingwhichappearsimmediatelyfollowingthis
Introductionand to comparethat settingwitheachof the settingsof the
agreements discussed in this Annex. The diversity of situations is
unmistakable.

17. Libya is confidentthat a reviewof each individualdelimitation
agreementdisposes ofMalta'scontentionthat there exists a "cardinal
principltwwhtrcby delimitationof the continentalshelfbctwetn States
withoppositecoastsmustbe byrneansofamtdianorquidistance line. To
the cxtent that iispossibleto glean informationfromwhat amount to
negotiatcdagreements,the texts of the agreementsand the maps that
accompanythem speakfor themselves. ANNEXOF DELIMITATION AGREEMENTS

[Nor reproduced)

(Source:InternationalBoundaryStudy,SeriesA, Limifsin tSem,
Officeof the Geographer, epartmentofState,Washington,D.C.,
No. 11,6March 1970(hereinafterreferrto as"LimitsintheSear"))

[Motreproduced]

(Source:Limits inrheSeas,No. 862 July1979)

[Nor reproduced]

(Source:Limiis itheSeas,No. B8,2October1979)

4. NORWAY-SOV UINION

[Noi reproduced]

(Source:Limits in tSeas,No. 17,27May1970)

5.BAHRAIN-SAUD ARABIA

[Norreproduced]

(Source; Limitin the SemNo. 12,10March1970) CONTINENTAL SHELF

6.GUINEA-BISSAU-SENECAL

[Not reproduced]

(Source:Limirsin the Seas,No. 68, 15March1976)

7. NETHERLANDS-FEDE REAPUBL IFGERMANY

[Nor reproduced]

(Source:UnitedNations,TreatySeries,Vol.550,p.123 ;ibid., Vol.857,p. 143)

[Not reproduced]

(Source: UnitedNations,7heatySeries,Vol551,p. 213;Atlante deiconfini
sortornarini,B.ConfortianG. Francalanci(eds.Milano,Giuffré1, 979,p. 30)

[Not reproduced]

(Source:UnitedNations,Peaty Series,Vol.566,p. 31; ibid., 640,p. 111)

[Nor reproduced]

(Source:UnitedNations,TrearySeriesVol. 570,p. 9;ibid,, Vol880,p. 185)

[Not reproduced]

(Source:InternuiionalLegalMuterials,Vol5,1966;ibid., Vol. 11,1972) ANNEX OF DELIMITATIONAGREEMENTS 191

12.DENMARK-NORWAY

[Not reproduced]

(Source:UnitedNations,TreotySeries,Vol.634,p. 71; ibid., 643.,.414)

[Noi reproduced]

(Source: United Nations,TreutySeries,V592,p. 207;
InternarionalLegulMateriah, Vol. 11972)

14. ITALY-YUGOSLAVIA

[Nor reproduced]

(Sourc~:Lirniisin the SeNo. 9,20 February1970)

(Offsho BroundaryApeementsbetweenAbu Dhabiand Dubai,
signedon 18February1968)

[Nol reproduced]

16. NORWAY-SWEDEN

[Nor reproduced]

(Source:UnitcdNations,TrearySeries,Vol.968,p. 235)

17. IRAN-SAUDA IRABIA

[Norreproduced]

(Source:United Nations,TreatSeries,Vol.696,p. 189) CONTINENTALSHELF

18. GERMAD NEMOCRATR IEPIIBI.IC-POLAND

[Nor reproduced]

(Source:UnitedNations, TrearySeriesVol. 768,p. 253)

19. ABUDHABI-QATAR

[Nor reproduced]

(Source:Limirs in rheSeasNo. 18,29 May 1970)

-

20. POLAND-SOVIE UTNION

[Nor reproduced]

(Source:UnitedNations,TrearySeriesVol. 769,p.75)

21. IRAN-QATAR

[Nor reproduced]

(Source:UnitedNations. TrearySeriesVol. 787.p. 165)

22. INDONFSIA-MALAYSIA

[Nor reproduced]

(S-urce:bits in rheSeas,No. 1,21January1970)

[Nor reproduced]

(Source: Limirsin rheSeaNO.45, 11Aupst 1972;
InrernarionalLegal MareriaVol. 17, 1978,p. 1074) AHNEX OF DEI,IMITATIOAGREEMENTS

[Nol reproduced]

(Source: New Direcrionsin the Lawofthe Sea, Vol.IV, cd. Notdquisteral.,
New York,Oceana, 1975,pp. 91-94(hercinaftcrrefasd to
"'NewDirections in the bw ofrhe Sea"); UnitcdNations, ïieoty Series,
Vol.974,p. 319and Vol.975,p. 3)

25. BAHRAIN-IRAN

[Nor reproduced]

(Source: United Nations,TrearySeries,Vol.826,p. 227)

26.ITALY-TLINISIA

[No! reproduced]

(SourceLjmilinrheSeos.No. 89,7 January 1980)

27. FEDERA RLEPUBLICOFGERMANY-U KINIGEDOM

[Nor reproduced]

(Source: United Nations, TSCI~PV,ol. 880,p. 185)

[Nat reproduced]

(Source: tirnits in the Sem, NoDecentbe1978;
ibid., No.93, 17ust 1981) CONTINENTAISHELF

29.INDoNESIA-THAILAND-MALAYSIA

[Nor reproduced]

(Source:tirnits in the Se81,27Dmmber 1978)

30.BRAZIL-URUGUAY

[Nor reproduced]

(Source: iirnirs inrheSem73,30September1976)

-

31.RNLAND-SWEDEN

[Nor reproduced]

(Source: iimiis in the Se71,16June 1976)

32.ARGE~INA-URUGUAY

[Nor reproduced]

(Source: timiinthe Sew No. 64.24 Oclo1975)

33.CANADA-DENMARK

[Nolreproduced]

(Source:nitedNalions, 'IieolySVol.950.p.147)

34.FRANCE-SPAIN

[Nor reproduced]

(Source: iimirs in the Se83, 1Febmary1979) ANNEX OF DELIMITATIONAGREEMENTS

35. JAPAN-REPUBLICOFKOREA

[Norreproducedl

(Source:New Direcrionrin tLnw of the Sea, Vol. IV, 1975,pp. 113.132)

36. ITALY-SPAIN

[Nor reproduced]

(Source:Limirsin the Sem. No. 90,14 May 1980)

37. SUDAN-SAUD IRABIA

[Norreproduced]

{Source: UnitedNations, TreatySeVol.952,p. 193)

[Noi reproduced]

(SourcerLimirsin IheSeas,No. 66.Decemkr 1975;
ibidNo. 77. 16February1978)

39.FEDEML REPUBLICOFGERMANY-GERMAN DEM~CKAT KIEPUBLIC

[Nolreproduced]

(Source;Limitsin rheSeos.No. 74.5 October 1976)

4. IRAN-OMAN

[Nor reproduced]

(Source:United Nations,eatySeries,Vol.972,p. 265) CONTNENTAL SHELF

Par12

[Nor reproduced]

(Source:Limirsin rheSeas,No. 62,25 August 1975;
ibid., No. 93, 17August 1981)

-

42. IRAN-UNITED ARABEMIRATE (DUBAI)

[Norreproduced]

(Source:Limirs inthe Seas,No. 63,30 September 1975)
-

43. THEGAMBIA-SENEGAL

[Nor reproduced]
(Source:New Direcrionsin rheïuw of the Sea,Vol. VIII, 1980,pp. 104-105)

44. COLOMBIA-ECUADOR

[Nor reproducedj

(Source: I.imiisinthe Seas,No. 69, 1April 1976)

(Con\cniion rrlaiivc tractdc la frontitrc d'Eiaihiablieentrc la RPpub1.q~
ishquc de Mauntanieet leRoyaumedu Maroc. signedaiRabaton 14 April1976)

[Nor reproduced]
-

46. KENYA-TANZANIA

[Nor reproduced]

(Source:Limirsinthe Seas.No. 92,23 June 1981) ANNEX OF DELIMITATIONAGREEMENTS

47.CUBA-MEXICO

[Nor reproduced]

(Source:Th~tecxoftkApmcnt istakm fromthc MalteseMemorial, Annex23)

48. COLOMBIA-PANAMA

[Nor reproducedj

(Source: New Directions in theinw ofrhe Vol.VIII,
1980pp. 88-92)

49. INDIA-MALDIVES

[Nor reproduced]

(SOWC~:Limiis in the SeaNo. 78,24 July1978)

-

50. COLOMBIA-COSR TICA

[Nor reproduced]

(Sour#; New Direcriom ln theinw of the SeVol.VIII,1980,pp.93-96)

51. ITALY-GREECE

[Nor reproduced]

(Source: tirnits in rheSNO..96.6 Junc1982)

52. CUBA-HAITI

[Not reproduced]

(Source: New Directions ine inw of the SeVol.VIII, 1980,p.69-75)198 COWI'INENTALSHELF

53. CUBA-UNITED STATES

[Nor reproduced]

(Source: New Directionsin the Law of the Sea, Vol.VIII, 1980,pp. 66-68)
-

54. COLOMBIA-DOMINICR AEPUBLIC

[Nor reproduced]

(Source: New Direcrionsin theow of the Seo, Vol.VIII, 1980,pp. 78-79)

55. COLOMBIA-HAIT1

[Nol reproduced]

(Source: New Directionsin rheLaw of rheSeo.l. VIII, 1980,pp. 76-77)
-

56. UNITED STATES-VENEZUELA

[Nor reproduced]
(Source: New Directionsin theow of the Seo. Vol. VIII, 1980,pp. 84-87)

57. THENETHERLANDS-VENEZUELA

[Nol reproduced]

{Source; Tractarenbladvan h~rXoninkrgk &r Nederlanden,1978,Nr. 61.
[Unofficitranslatioof thc Spanishrext.])

-

58. INDIA INDONESIA-THAILAND
[Nol reproduced]

(Source:Limits in rheSeas,No. 93, 17August 1981)

59. INDIA-THAILAND
[Norreproduced]

(Source: Limitsn rheSeas,No. 93, 17August 1981) AWNEX OF DELIMITATIONAGREEMENTS 199

hû. AUSTRAI.IA---PAPNUEWGUINEA

flreaty between Australin and thc indcpendeni State of Papua New Guinea.
signcdal Sydneyon 1Dcccrnber1978)

[Nor reproduced]

61. DOMlNlCAN REPUBLIC-VENEZUELA

[Nor reproduced]

(Source: NewDirecrionsin thewof the Sea. Vol.VIII,1980,pp. 80-83)

62. DENMARK-NORWAY

[Not reproduced]

(Source:UnitedNations, Secretariat,Treaty Section.The Englishtranslation of
thisAmernent isreproducedfrom the MolreseMernorial,Ann20)

63. FRANCE-TONGA

[Nol repruduced]

(Source:Journao/fficielde la Républiquefron~aise.1I January 1980)

M. COS'I'RAICA-PANAMA

[Nor reproduced]

(Source; Limitit? tSeasNo. 97,6Deoember1982)

65. FRANCE-MAURITIUS

[Nor reproduced]

(Source: Limitsin the Seas,No. 95, 16Apnl 1982) CONTINENTAI.SHE1.F

66. UNITED STATES-COOI SLANDS

[Noi reproduced]

(Source:U.S. Congress,Senate,96th Cong.,2d Session,
ExecutiveP.(3 Sep. 1980))

67. FRANCE-VENEZUELA

[Norreproduced]

(Source:Journaloffieielde la Républerançaise,16March 1983,p. 782)

68. NEWZEALAND-UNITE STATES

[Norreproduced]

(Source:U.S.Congress,Senate,97th Cong., 1stSession(25 March 1981),
Treaty Doc. No. 97-5)

69. FRANCE-SAINT LUCIA

[Nol reproduced]

(Source:Journal@ciel de la RépubliqueJransai4. March 1981p.1608)

70. ICELAND-NORWAY

[Noi reproduced]

(Source:lnternarional&al Mareriab,Vol.XXI, November 1982,
pp.1222-1226)

71. FRANCE-AUSTRALIA

[Norreproduced]

(Source:Journalofjicielde la Rdpubliquefrançake, 15Fcbmary 1983,p. 562) VOLUME III

DOCUMENïARY ANNEXES (with pocketsectionofmaps)

TO THE COUNTER-MEMORIAL OF

THE LIBYAN ARAB JAMAHIRIYA

Amex 1

LIBYAN LAW NO.66 OF 1973

[Arabic texr not reproduced]

(Unoficial Translation)
LAW NO.66 OF 1973

Concerningthe Nationalizationof 51per centof the OperaringCompanies'

In the Nme of rk People
The RcvolutionaryComand Council
Having regard to the Constitutional Declaration No. 1issued on 2 Shawwal

1389correspondingio II Dcccmbzr1969:and 10:
the Petroleum Law No.25of 1955and the laws amendingil:
the Law No.2Aof 1970on the N.O.C. and lawsrimendinpil:
ihe commerciallaw;
the Law No. 65 of1970 conctming ccrtain provisions relatedto merchants and
comrncrcia companiesand their supervisi:n
the LawNo. 44 of 1973conceming the nationalizalion of 51 per ccnt of Occi-
dcnlai LibyaCo.;
tht Law No. 51 of 1973 on the approval of thc Joint VcntuieAgreement
bclwŒn thc Lihyan Governmenl and Amcrada Libya Petrolcum Corp. and
Continentaltibya Petroleum Co. andMarathon Libya Petroleum Co. Ltd.
and the agretment concludedbciweenthc Governmcnt and those companies
of 12 Rojab 1393corresponding to 11/8/1973; and to the oil Concessions
AgreementsNos. 3.4, 5, 6, 7, 9,0, 11, 12, 13, 14, 15, 162,0, 25, 27,28,
29-31, 32, 33-42, 43,44,45,46,47,50,5157,59,62,71,72,73,83, 119, 120,
124,125,126,131, 132,133and relevant amendingand supplementary agra
ments; and to the Prime Minister'smommcndation and the consent of the
Cound of Miers :

Do hereby issuethis law.

1 nieqjicini GuettoftheLibyanArabRepublic,issuNo.43 of1I Shawwal1393,
corrupondlngto6 Navcmber1973,threkvcnthYcar". CONTINENTAL SHELF

Article1

51 per -en1of al1propertie3and pnvilcges.awei9.shares activitiesnnd .nier-
esls in any form owncd by thc followingoil conipaniesand rclaied io oil conccn-
sion awments shown against the namë of each Company,shall he nationalized
and transferred to the State.

1. Esso Standard of ~ib~aIncorporated. Concession Agreements Nos.3,4, 5,
6.7.
2. fie Libyan AmericanPetroleum Company and Grace Oil and Esso Sirte
CompanyInc. Concession Agreements16,17,20.
3. SheU(Libva) Exoloration and Production Comoanv (Lihva) N.V.< ,nces-
sionÀgre&ntskos. 25,27,28,29,31,32,33,5i), 7i. '
4. Mobil Oil (Libya) Inc. and Gelsenberg(Libya). Concessions9, 10, 11, 12,
13,14,15,50, 57, 62, 72,124, 125,126.
5. Texaco Oil Oveneas Co. and California AsiaticOil Company. Concessions
AgreementsNos. 42,43,44,45,46,47, 51,73, 119, 120, 131, 132 1,33.83.

lïii shall includein particular ail properties and facilitiespertainingto explora-
tion, drilling, c~de oil production, natural gas and its derivatives, transpori,
utilbation. ourification. storaee. exoort includine weUsand ioint nroduction
fields.pip;lines, storagCrescrvoik, and t;rminals. andothe;asscis and
righrp The natural gas plant andils derivativesof EssoStandard isno! included

among the nationdized properties and privileges, and shall continue in its
oresentnwition onor to the en~ ~ ~ - ~ - ~ nrovisionsof this ~ ~ ~~
Al1c8mpanies'whoserights are naconali&referred to in this ArticleshaUbe
alone held iesponsible for al1their obligations,dehts and any claims made hy
any person, or any liabilityto any persin related to the activitiesof such corn-
panies pnor 10 enforcing this law. The govemment shall in no way he held
responsibicfor suchdebts, liabiities or claims.

In lieu d funds, rights and asscts passed to the Stale in accordance with

Article 1,the Statc shall pay to the companicsconcerned a compensation.ïhe
said compensation shall be determincd by a committee or committccs to be
cstabliôhed by a decisionissuedby thc Ministcrof Oil, in the followingmanner:
A. A Counselfrom thc Appeal Court to be nominatcd by the Minisicr of Jus-
Ijm, asChairman.
B. A rtpresentative of the National OilCorporation to be nominatcd by the

Ministerof Oil as a member.
C A reprcseniaiivcof the Ministryof Trcasury to be nominated by the Minis-
terof Treasury, aî a membcr.
In achievingits mission,the committee may be assistedby officiaisorothen
wheneverit deemsnecessary.

Arricle3

By virtue of a resolution issued hy the Minister of Oil, a cornmittee or
committas shall be appointed to carry out the inventory and taking over of the
nationalized funds and assets of the nationaiized comoanies.nie decisions
of such committee/s shall be approved hy a decision isiued by the Chaimian
and Direcior Generalof the National OilCorporation. UWIIMEMARY ANNEXESTO THE COUNTER-MEMORIAIO . F LIBYA 203

Arlicle 4

Thc local manager of each of the abovc referred companies shall preparea
declaration showing ihc financial position of the companieas on the day pre-
cadingthe effmtivcdate of this law basedupon the books ofthe companies.The
declaration shall be fonvarded to the companies' accountsdepartment of the
Minisuy of Oil for rnision for the purposc of pcrforming its tasks, the raid
department may request the companies to provide any clarification or docu-
rncnts, and shall forward the declaration accompanied by its remarks to the
Minister of Oil.

Article 5

Bv virtue of a decision issued bv the Minister of Oil, anv contract, commit-
meit or any legalrelation of anyform that may affectthe value of the national-
ized fun& and rights or the continuation of which may affect theappropriate
conditionsfor operation or investmentmay becancelled.

Article 6
Tbe funds; asseu and rights of the companies owned by the State in accor-
dance with the provisions of Anicle 1 shallbe transfened to the National Oil

Corporation.

Article 7

The areas of the nationalizedconcessions shallbe investedbvthe National Oil
Corporation in panicipaiion with the companies referred to;n Anicle 1.with
the corporation'spanicipation share king 51 pcr cent thercof, and that of the
compaüiesking 49 percent of.
Thc operation will be conductcd by the compaoy opcrating actually before
executing ihis law. By way of a decision issucd by the Minister of Oil,a man-
agementcomrniiiat shallbe appoinltd for this companycomprlsingthrtt mtm-
krs. iwoincludineithe Chairman thereof to rcrircscntthe Government.thc third
representsihc company. The local manager thc operating company shall bc
considered a mcmber of the managcmtnt commiltee unless the company
appoinu another asa membcrin the said committee.
The said committtc shall be rcsponsihlefor managingthc affairs of the com-
pany, represent ihc company with other parlics aswcllas btfore thc courts. in
addirion ~i contmlling operations in the nalionalizcd arcos. The committce's
decisions shallbetaktn by a majority vote, ils decisionsshd becomc effective
uponissuc.
Thesecornmitteeswillbe definedrisfollows:

1. Management committee for Esso Standard Libya asthe company actually
operating on its own and on behalf of Esso Sirte, Grace and Libyan
American.
2. Management committeefor Mobil Oil Libya Ltd. asthe company actually
operating on its ownand on behalf of GelsenbergA.G.

Article 8

Amoseas Company shall continue ils present activitiesas an operating com-
pany on behalfof Texaco Overseasand CaliforniaAsiaticOilCompany andthe204 CONTINENTAI. SHELF

National Oil Corporalion being owncr of 51 pcr cent of the sharcs of both said
comoanits occordinnto the vrovisionsof this law. Thc ooeratina comoanv wiU
ha"; a board of directors t;bc formed by a decision ofihe ~Sistcrof 0.1 of
three niemhers.IWO represcntingthe Governmcnt,one of whomisthc Chimien
and General Direcior, and the third represents the two said companies. De
local manager of the operating company will be considered as a committee's
rnembcrunlessthe twocompanicsappoint another. The board of dircctors uill
be responsiblefor the administration of the company concemingits activitiesin
the tibvan Arab Reoublic and to reoresent it in ils relations withthird narties
and before the court;. The decisions'ofthe board are issuedby the majo'rityof
its memben and are considered effective as soon as issued. The board of
directors may authorize one of ils memben or one of the company'semployets
to exercise certain of its cornpetences.The operations will be subject io the

control of a management committee to be formed and to issue its decisionsin
accordanccwith the situation stated in the aforesaidArticle.
The Minister of Oil mav at the bemnninp of Januan 1975 transfer this
company io a n~n-~rofit-m~kin~~ib~an-comp&~,totally ownedby the N.O.C.
to operate nationalized areas on behalf of the N.O.C. and the other two
companiesmentionedin this Article.

Article 9

Shell Exploration and Production Co. (Libya) N.V. shall be considered,
according 10 this law, asjoining the second party of the Participation
Agreement betweenthe Libyan Governmentand Amerada Petroleum Corp. of
Libya, Continental Petroleum Co. of Libya, Marathon Petroleum Co. of Libya
Ltd. rncniionedabove and be engaged before the Libyan Government and the
N.O.C. in al1 the obligations stated in respect of the second party of ihk
agreement.

Ariicle10
The parcnt companies Io thc Companies referred to inArticlcs 1,7.8 and 9
and thcir affiliates shall undertake to continue providing thc services usually
rcndered to the operating companiesspecificdin the Articles referredtabovc
whenever requestcd by the management committec or the board of dircctors
referredto in thcscArticles.

The servicesprcscribedin the preccdingparagraph shall includethe ttchnical,
financial, tconomic. advisory or lcgal services. inaddition to providing the
expertist and training as wcll as other services relating Io thc nationalized
activity.

ArticleII

The National Oil Corporation and the companies referred to in Article 1,
each in proportion Io their respectiveshare, as prescribed in Articles I and 7
shail pay to the State treasury, through the Ministry of Oil, al1the fees,rems,
rovaities. income taxes.and surtaxes due therefrom asfrom the effectivedate of
this la^.in accordanceto the provisionsof the Pctroleum Law, the concession
agrcemcnÿ referredto above and the agreements amending,supplcmcniingand
relatinr!thereto
~he&companiesshallcontinueto pay thesupplementarypaymcnt referredto
in the Agreementsûmendingthe concessionsof Scptembcr 1970.March 1971. RDCUMENTARY ANNEXES TOTHE COUNTER-MEMORIA L F LlBYA 205

May 1972.and lune I973, duc on each exported barrcl of crude oil exported
and owntû bv thcx companies according to thcir remainder sharc in the
participation pro>~ed thaÏruch a ,upplcmëntary payiiietitshall be 20408 pcr
cent for the mm? prèsentratio for each barre1ro that the governmcor revenue
for prcwnt supplcmcnlan paymcnt willbe stablc wtthout change andunaifccted
asarcsu11of tb; implemeniaiionof the present law.

Article12
The National OilCorporation and Companiesreferrcdto in Article 1shall be
from the effectivedate of this law and each in proportion to its participation
share asprcscribed inthat Article havean undividedand indivisibleshare of the
cmde oil and other hydrocarbons produced, and sball have the right Io dispose
of their share in the way they deem appropriate and shall continue lifting and

ex~ortingthe share of the mrporation fora period of one month effectivefrom
the date this law cornesinto force, pursuant to the option of the corporation.
During tbi month an agreement should be made betwecn the two parties to
make arransements for liftine the comorationh sharc or a oortion thereof
including th; pnms and volu~cs which'are king liftcd and p&es of volumcs
which hart been liftedduring the period ofonc month abovc mcntioned. In ihe
evcnt an aereement isnot rëachcd durina such ueriod an adiustment of cargos
Iifted by the cornpanin (rom the corpo;ation'r'nhare nhouid bc made on The
bais ofcompensaticg thc corporation for cargos cxported by ihc companicsby
aivina the corrioration additional montbly cargos at a rate not lesstban 10per
Eentil the catgos no1lifted by the corpoÏation until such lime the corporation
shallobtain its share.

Article 13

The ernployeesand workcrsof the companiesreferredto in Articles 1,7 and 8
shall continue to pedorm their dutics in compliance wiih iheir rcspccttve
appoiniment and their currtni employmcnt contracts, and no onc may leave
his work or rcfrailh nertfrom unless rclieved by a decision issued by the
rnnnagcment committee or board of directors reftrrcd to in thc rnentioned
Articles.

Article14
Any contract, act or dccisiontakcn, concludor carried out in contradiction

with the prouisioiiaithis lawshall k dtemed void and Banks,corporationsor
individu& arc prohihited Io pay any amount or settle anyclaim or commitmcnt
dut by the parties mentioncd in this law except wilh the approval of the
rnanagcmcntwmmittee or board of directors refcrrcd to in Anicles 7 and 8 of
th'slaw.

Article 15

Whoever comrnits an offencein contradiction with any of the provisions of
this law shall be subiect to imorisonment for a oeriod not exceedina two vears
and a fincnot encxsungfivchindrcd Dinan or any of those pcnaliic;
Whoevtr lails IOcomplywith the provisions ofthe prccedingArticle shallbe
wntcnŒd to pay an aniount cquivaicnt to three timcs the amount lost by the
Suite asa rcsult of hisoffence.2% CONTINENTALSHELF

Arric16
TheMhisicr of Oilshall executcihk law which shallcomeinasfrome
thcdatcof itsissuc,and shallbepublishedintheofiïcialgazelle.

TheRevolutionaryCommandCouncil

(Signed)MajorAbdussalamAHMED JALLOUD,
PrimeMinister.

Euidin ELMABROUK,
Ministerof Oil. WCUMLWAKY ANNEXESTO .THECOUNTER-MEMOKIAL OF LlBYA 207

Annex 2

PE~ROOONSULTAN S.AS., PAGE1 OF FOREIGN SCOUTING SERVICE. MALTA,
JULY 1980,AND PAGE 5OF ANNUAR LEvIEwI~~~M , ACTAJ,ANUARY 1980

ri1
PerroleumRighls

Eight offshoreblocks(7,471sq km) are stillvdid over the Medina Bankarea,
some 150km SE in average of the island and panly conflicting witha Libyan
award.
Rightholden are Amoco (three blocks), Texaco (four blocks) and the Elf
Aquitaine-Optr/Hipanoil/ Wintershdl/Cities Servicegroup (one block).

Erploraiion
In laie 1979sarly 1980the Governrnentannounced plans made on the advice
of theUN for a marine seismic program to the north of the Is!and, but any
informationon possibleoperationss nowconsidered asconfidentid.
Last reporled activityin Malta was a marine seismicsurvey completedduring
1975over theJoc OilMedina Bank blocks (transferredlas1yearto Amoco).

WildcafDrilling
Govemmeni GiimeG s reen Lighifor Medina Bank Drilling. In the absenceof
an agreement with Libyafor an offshore boundary over the Medina Bank area,
the Governrnenthasarked al1rightholdersto proceedwith their drillingplans.

Itis recalledthat ali Medina Bank blocksweregranted during 1974;a Libyan
award made at the same rime to Exxon pmly overlapped blocks4 and 9
(Tcnaco),blmk 16(ElfAquitainegroup)and blocks 10,11. 14(now Amoco).
In t976 thetwocountries had agrccdIo take,the proble10thcInternational
Coun ofJustice ofïüc Hague; howcverno action wassubscqucnilyundcrtaken
bv Libvawhichdocs no1accent a divisionin e.ual.uarts (mcdinnlinc~ri.ci.le)
invie; of its more cxtcndcdGastline.
In 1977dl commitmentsover the Mcdina Bank rights weresuspended.pend-
ingaccordwithLibya.

VI

Last exploration aciivity in Malta wamarine seismicsurveycomplcted in
1975over JricCiil-5Medina Bankblocks.
Thisshows a rcnewal of interel. for offshore arcas of the Sicilian Channcl
where promising oil finds have been made recently in ltalian waters. In the
Maltesepart of ihe Sicilian Channel,righu wereheld until 1976by two groups:
SheUlAgip which drilled two wildcats (MS-Al, MS-A2) and Home which
dnlled one Mldcat [Malta 1). It is belicved that both MS-AI and Malta I had
the Triassic(producing at Ragusa and Gela in nearby Sicily)as their objective,
whilc ihe other weUonly exploredTerliary formations. No positiveresultswere
reported, and no furiher drillingwascamed out in Malta alter 1973.

Enclosure: Synopsis Map(1: 500,000). CONTINENTAL SHELF

Annex 3

PAGE S09AND 110OFRENLJEA DNUPUY,L'ocÉIN PARTAGE

[Nof reproduced]

PAGE 3-4OFMOREL,"CARACTBRESHYDROLOGIQUED SESEAUXECHANGÉES
EKTRELEBASSINORIENTAL ETLEBASSINOCCIDENTAL DELAMEDITERRANBE"

A 150métres,lecourant apparaît maxim(6cm s -1entre les immersio300et
500 mètres.18où les caractCristiaues de I'eau intermCdiaire sont d'ailleurs les
plus marqu'Ces.Dans ces conditions le flux de I'eausortante Btravers ce chenal
estde l'ordre de 0,6 A0,8.106 m3 s-1,la marge donnée tient compte Ala fois de

Ivincertitudesur les positions des stations (rapprochtes) et sur l'imprtcision des
extrapolations nkceisairespour Ctablirj800umétrésle profil de courant.
En considCrant que la base de la couche d'eau d'origineatlantique est dCiii-
tee par l'isohaline 37,50Vm, la coupladfigure 13a permet d'en connaitre
Irpaisscur, sit8t contournt Iccap Bon. Par planimCtricsur cette coupe, on p~ut
en dtduirc que le flux vcrs l'Est de 106 m3 s-1 impliquc pour la couchc unc
vitcsae moyenne perpendiculaiAla coupc de lbrdrc dc 0,2 nŒud, cc qen
tout étaide cause n'estpas invraisernblablc. Annex6

PAGE9 OFOPEC, ANNUALSTATISTICABULLETIN981

[Norreproduced] DOCUME31AXY ANNEXES TO THE COUNTER-MEMORIAI. OF LlBYA 211

Annex 7

million and ww mainly attributable to the

SECTOML CONTRl8VnON X) closurc of Iwo major fimis. namely. Plcswy
GROS5 DO(arfactomi,)T Compancntr (Matta) Ltd and General Inrtni.
'MM mcntr. A fim engagcd in ihc manufacture of
nibbergmds slro rhowcd a dscline in produc-
79,. 1'0 IUI tion of around fM0.4 million. An almort

equivslent torrvar recordcd in the chcmiealr
semoi, mainiy aitributable to lowcr output by
one phamaceutical fim.

Minufacturing industries rhowing a
-igorour srowth rate (of aiound 60 per ceni)
were rhow producing footwcar: the raleof
increareinoutput valueinthirwctar cantrastcd
significantly wiih itr performance in the corn-

parable pericd in the prcviour year whcn thir
activity hadno1cvcn managed io maintain the
value ofoutputreachcdin the fintsir monthrof
1979.Another rcclor rcgistcringhighcrproduc-
tion - whetcar in the previaur comparable
n-iilk.?,-- .......
period it had shownariatic positi-n u,w that
cngagcd in the manufacture of paper andpnni:
ing productr: the value of production in thir
activity row by aiound fM1.8 million cnlirely
duc to higher crponr of wcurity printing.
Manufacturing fimir in thc id recini ah

Whilrt ihs msjorily of indurtrial groupr dirplnycd an incrcasc in productiori value (01
wilhin themaniiIanuringscetorshowic ndgainrmund 8 pcr centj whcrcai in thr corrcs-
lhc valutotprodunioo. fourgmups ragisirrcd pinding pcricd in the prcviuus ycrr production
had suffcrcda Ionsinvaluc icrnir of abo3Pr
shnritalls.A mapot drOpin production was cent.
rcgiricrcd hy tcxrilcs ad cloihing: themain
mnlributonfactmfortk dec!inebcingthc fall Munufatturing fimr in the Iievcragcs
in al* in wmrt mbir. Whcrcss in thr indurlry ptaclically moiniaincd the growth rats
mpaiablc wriod in ihc prcviour yrar ihr crpcriencrd in the prcvioycar (sround IBpcr
cent).In sbmlutc tcms. ihc value of output of
pioduclioo valut ofIhiaaccror hadshownagain
of more thon fM7 millmn. duting the fint-rir ihcx firmrndvancc bdysomcLM0.8million. A
rimniri 01the Far Jnder rc%icw te~t<Lcand gd raie of intrcasc in prcdurtion valuc wai
cothinp firmrrcgrrrcrcoan aln~rnlrquiralcn! rrgiricrcd sswcll tohano rnanutcturing: the
decrcare n' piaiuo on of aruund fhlb 9 valuc of production incrcared. infaci. byalmort
fM0.9 million compared to an advance to
million.
Amihcr group of indurtrier rhowing a fall around fMI million in the fin! six month of
inthcvalue ofouipul-thoughon amuchniore 19M.

rnodcrrle wak - urr tns. cngagcdinrhc pru- Otkr incrcawr in output value rclarcd Io
ducti~n cf "machmer)' itcmi The derltnc furniture mrking and'the production of non-
reg~ccrcd cntnere am., trr wu about CM09 metallic mi!icrslr. which during the fini six CONTINENTAI .HELF

BASIC STATISTICS

UNMPLOWLEh7 Tmil

..............
............... DOCUMENTARYANNEXESTO THE COUNTER-MEMORIAO LF LIBYA 213

Annex8

PACE1 OF MALTESEDEVELOPMENTPMN~~~I-1985

PART 1THEIIEVELOPMENT RECORD
A HISTORICAL PERSPECTIVE

Malta's Fiih Development Plan 1981-85charts the country's development
straiermfor thc fat half of the eiehties.The develo~mentof a nation however
cannoÏbc properly analyscd overa pcnod asshon'as fivcyean and thc ).cars
1981io 1985should h looked ai in thc widerpcrspcctivcof Malta'schangeand
progrss during the secondhalf of the twentiethcentury

Sincethe carly fiftieswhenthe peopleof Malta becameincreasinglyconscious
ni the nead Io detach the countrv's wav of life from its secular dcocndence on
the rsland's strategic value in tiait terra ne an,tional econhic policies
have beenconsistentlygearedtowards the long-term developmcnt goalof a new
sconomic structure. ~his process hm, on théwhole, regisicred a-considerable

degreeof suaas whichhas cvensurpassed initial expectations.
During the last twenty-five yean the Maltese economy has cxpencnced a
majartransformation. This rapid growth is confirmed by various economic
indicators which traditionallv constitute thc vardstick of dcvelooment.The oro-
ducti~cbase of the economihas cxpanded 4th the crcatinn of'ancxpon-bked
indusinal %cior,b large-scalctounst industry andasucctssful switch Io com-
mercial shio re~airini Othcr cconomic stctors havc bccn modcrnizcd and
naLonal in<<ime'hssnsen sharply. Generai cconomicexpansion has in tum been
accornpnnied hg irnprovrd living standards. Moteovcr, thcrr has been a more
eauitablc distnbution amonn ihc pouulation of the bcncfits ansing froni ihc
dcnloment of national resoÜnes,
ih;i achieuemenü arc in theinselvts ronîrete proof ihat the dcvclopment
slrsie# whichharbccnadoptcd hasgivengood results.Ifduly strcnflhencd and
rrinio~od. ii hotds eood DrosDcclsof furiher nrosshit conlinuc10unlold.
The underlyingoijtctke of Malta'secorio&c stratcgy ha been to accelerate
the wwih ratc through new forms of cconomic activity 10 replace thc gains
dcriicd from the traditional forcign military presence. With the closurc of the
foreign military facilitieson the island in March 1979,Malta'seconomic objec-

tives shouldnow however he viewedin a broader, longer-.. COMINENTAL SHELF

Annex 9

PAGE 13OFWORLD BANK W.ORLD DEVELOPMENT
REPOR~:1981

[Nor reproduced] PAGE54 OF SE~ARIAT OFPLANNING, SUMMARY OFTHESOCI@ECONOMIC
TRANSFORMATION PLAN1981-1985

It is stUnated that thepopulation of the S.P.L.A.J. willincreasefrom about
3,245,800in 1980to about 3,960.800in 1985or at an annual compound growtb
raieoi 4.1S. Meanwhile,il is éxpectedthat the non-Libyan population will
increase from about 441,200 in 1980to about 549,600 in1985orantannual
mmpound growth raie of 4.5%. The proportion of non-Libyanpopulation will
beabout 13.9% of the total population in 1985.It is also cstimated that the
number of Libyan population will increase from about 2,804,600 in 1980to
about 3,411,200n 1985or atanannual compound growth rateof 3.9%.

Table18

ESTIMATES OF POPULATION FOR 198011985 (inrhousandr)

growth rate
l

Total Libvanand non-
~ib~an~po~ulation
Libyam
Kon-libyans
Proportion 01non-Libyans
IO total populati(46)

Asregards the estimated number of manpower,it iscxpectcdto increasefrom
about 812.8M in 1980to about 1,061,800in 1985or at an annual compound
growh rat ef 5.5% whilethe numbcr of Libyan manpowcrwillincreasefrom
abolit532,800 in 1980to about 678,400 in 1985or at an annual compound
growth rate 015%. Ir is estimated that the numbcr of non-Libyan manpowcr
will incrcahc irom about 280,000in 19810 about 383.400 in 1985or nt an
annual cornnound~mwth rat= of 6.5%. Ii is expected that the proportion of
non-Libyan*rnanpo%r to total employmcnt willincreasc [rom aboui 3W.in
1980to about 36.$6in 1985. CONTINEMAL SHELF

PACE 39 OF METWAL SLYR.UCTUR AEND PERFORMANCEOF

THE MALTESE ECONOMY

. . iunng pricc index. lncomcs from Government entcrpriscs. wholcsalc and
rctail tradc. insurance, banking and rcal cstate, Public Administration, Military
Scniccr and Pnvatr Services weredeflated using the Servies prie index.
Source Sec mcthod of estimation in Appendix 2-2.The Data uscd are denved
from the Xational Accounts of Malta and the Annual Abstract of

Statistics
Table 2-1 contains an enormous amount of information and we devote the
rest of this chapter to analyse this information.

(1) The Maltese population does not seem to have changed significantly in
size in the last two decades. The trend, howevcr, seems to be of a deciining
nature. Thus the rate of growth of this variable was reduccd from 0.35 percent
durine thc ~eriod 1954-60to 0.06.v~r-cen~ an~ ~o -0.43 ner cent durinc the
pcnod; l%i-70 and 1971-74respectively.This declinc in pophation would;cem
to belargelyduc10 a declinc in binh rates. 11is doubtful. however, whcthcr this
decline in binh rates is due to an unfavourablc assessmcnt on thc vart of the
parents (and persons intended to get mamed) of the cconomic fuiure of the
country. The decline in birth rates is more likebe due to socio-economic
and institutional factors (e.~.,influence of tourism and imvrovcmenl in commu-
nication; introduction of mimage counselling).
(2) The Cross domestic product (at factor cost) incresin.real terms, by

4.24 pcr cent ovcr lhc las1two decades. Thc highest rate of growlh, howcvcr,
would secm to have occurrcd during thc pcriod 19170 and the lowcst during
the period 1971174.Thc point is thifthe Maltese Economy continues to grow
at4.24 per cent pcr annum. ... Anntx 12

PAGE W OF MALTA HANOBOO K981AND PAGE 125 OF MALTA HANDBOO K 977

flSHWEs
The firhinp giounds 01ihe Maltese tradi- fishermen and the trawlers opersted by the
Mallese Libyan Arab Fishing Company Ltd.
fionallishsmenaiewithinmradiusof160Km The wholeselsand retailvalues of fish landed
homiha rhoistifthehbhese Islands.Firhsry
ictiuiliesainsirof kanninati, trawling, longuring these months were CM07 million and
ning for moidfiln. hna scrsen6 alid CMO8mll ion ier~ea~vely
wnom lonp 1 n np For inrnoie firhtng othsr
mofassrabch sotiammal andg81inanet¶
&id &are also usad.ln viaw of Ïoughsear
during the wimsr momhs,the catch during Wholasla Valui and Wsight of
fhisseason isonly aboutone-fihhofthatpre-
valem durim lhs late rummei and late Loully Caught Ash
aubmn ~n-app,waDs amount of frh 1960-1979
bndea ycer y cons sa of good qbs iw fish
IL& 8% w,ordfsn bl4s f ntuna. iea orsam
Catch Whol#rale Value
and slona bas IKarl CM
The Ms.te% Gweirmcnt'a plans erstel.
pond the fshei es inaurtw inoidsi to msal
me local demana la<f shand ihsll.(irh to the
grsalest elbis *nt fmm 1-1 sources
The Gouemmenl slro reeii to enruts thst an
aaea~ate SLW~ 01 fisia avaolable ail the
yeanaund. iiiiimota mhiphsrcanaumption
of Iirh in the laal diet and Io ieduce or do

ma" altogehr with fish impom.
Aswréingly, hiide Ihe crtablishmsrit of
Ih =der firhing l?m opsralsa DY the
Maliese Libwn Arsb Fishina Companv Ltd..

.. . ~~ - ~
runing crifland to roau worn out sngine*
-0.9 sss$<oncein 1?6~t~hase0fbait end

we6~gl.e3he. o\oae<plwsthanthet
disipad r~rnmainsllt.
In thefirn nnc man*, of IWO a total of
areund7% lonneawerecaught bv ttadit~onol CONTINENTALSHF.1.F

FISHERIES

Most fishery activities take place within 100 miles of1
the Maltese Islands for the migratory pelagic type usualIy
found in the Central Mediterranean. The bulk of the fih
usually landed between September and November consists
of dolphin fish Oampuki)and pilot fish (fanfii). About one
third of the catch during May, June and July consists of
mackerel, bogue and scad. The swordfish type of fishing
has gained popularity with an increasing number of fisher-
men. Fish is scarce during the winter months and availabi-
Iity reaches only about one-fifth of that prevalent during
the late summer and late autumn.
Durinj 1976 the fishing industry occupied 895 motor
and 139 other fishing vessels engaging 440 full-time and
567 part-time fishermen. In the same year fish landings
rose by 48,800kgs. to 1,541,700kgs. The retail value of
the fish caught rose byfM43,099 to £M915,282.
Government provides assistance to fishermen to help
them build their fishing boats, replace engines and to buy
Liaitand tackle as well as fuel ata low price. Cold stores
have recently been built and a refrigeration plantnstalled
in Gozofor the storage offish.
Through the aid of the United Nations Development
Programme and with the cooperation of the Libyan Arab
Republic, the Government has set up a fleetof trawlers
capable of al\-year round fiçhing in waters whicthe tradi-
tional fishermen cannot reach. Experts were brought to
train Maltese on these trawlers. Catches increased and the
importation of fresh fish decreased stronglin 1974 and in
1976was stopped completely.

It is expected to expand this project through foreign
aid, in order to be able to provide the market with more
and more fresh fish increasing the average consumption per
head to levels comparable to other Mediterranean coun-
nities on a CO-operativand collecting basis.ment opporhr- DDCUMENTARYANNEXES TO THE COUNTER-MEMORIAL. OF LlBYA 219

Aencr 13

PirCt149OF MALTA GUJBFIINFS FOR PROCRF.Y.S
(DEVLLOPMFNT PUN 1981-1985)

induce cooperative societies to expand and diversifytheir range of activities
as well as to improve their organizational structure. This will increasingly
enable memben to benefit more fullyfrom their own activities.

The Govemment will encourage further developrnent of cooperative
attitudes in the agricultural sector in a way that effectively combines self-
interest and group-interest by allowingself-interest of individualsto become
a driving force in group action. While individual initiative by farmen and
producen willat al1timesbe backed bystateencouragement andsupport, the
Government will aciively seek to promote cooperative foms of joint
endeavour. This ispossible in such activities as the purchaof farm inputs,
marketing, and utilisation and maintenance of farm equipment since in view
of the constraints which handicap Maltese agriculture, such cooperative
foms of action willenable smallindividualfarmers Iobenefit. tosomeextent,
Irom the advantagesof scalethrough largergroupings.

FISHERIES
The main objective for the development of the fishingindustry during
the eighties isto meei the demand for fishto the fullest extent possible €rom
IocaI sources. Full swpe exists for the pursuit of this objective sincofhalf
Malta's current fishconsumption is satisfied by imports of frozen.or canned
fi&. The Maltese Llands. situated in the centre of the Mediterranean Sea,
should be able todevelop a tcchnically efficient and economically viable
fishing industry. Action in this direction was staned during the founh plan.
All future efforts should be dirccted towards the fuller exploitation of the
fisheries resourcesgenerally accessibleto the Maltese Islands.

The objectives of the fishericsdeveloprnent programme for the eighties
are:
- the increase oi the fish catch to satisfy demand for fishproducb by the
population aswcllasthe dcrnand forquality f~hand seafwds by tourists and
taobtain an exportable surplus;
- the tapping of the unexploited and underzxploited fisheries resourees
available to the Maltese fishingindustryboth insideMaltese territorial waters
as wellas in offshore fishinggrounds;
- the availability 07a regular supply of fresh fish by the evening out of
seasonal fluctuations;
- the irnprovement in the nutritional diet of the Maltese population; and

- the reduction of im~ortsof fishand fishoroducts.
Various efforts were undenaken during the seventies to increase local
fishsupplies both bymeansof encouragement to traditional fishermenand by COmNENTAL SHELF

Amex 14

PAGE71 OFDEYELOPSUPPLEMENT FOALTA1973-1980,

of flexibland ,hin;niovatheadership stylies.Naturahly, there
are karning cm awciated with these p~cesses whloh
have ,to be borneby the country. These wsts, hwver, are
themeeihes part of the karraiing cycle .thr~~gh Wh.khthe
Malfese econwily, rnswhale, i,spassing. Thefiml dbjwtiw
of &ese indusbriaûenterprises is workers' ~mnagm arod
ownershi,p. But it wiil ,be a ,mistakeexpect the WC&B~S
atone to shoulikleraheh.U ,burden of .mnning them before
these in!dustiies aFe set hly on thei[ feet.

Joint Ventures

The fact that Malta is attracting to its shores the
invesîment of Arab fvnds i'nproductive enterprises on a
joint venture basis with local and other foreign capital is
a firm indication of the wide oonfidence which exists in
the growth potential of .the Maltese economy. These efforts
to attract and promote further involvement of Arab capi-
tal in the Maltese economy and to increase the range and
extent of Arab participation in the local manufacturing
sector will be actively pursued in the coming ycars.
ltis with this aim .in view that in Ottober 1975 thc
Maltesc and Libyan Governments reached agreement
on the setting up of the Libyan Arab Maltese Holding
Company Limited to develop and execute industrial, corn-
mercial, financial and fishing projects a'nd related activi-
fies and in this way promote the process of industrialisa-
tion in the two countries in a. complemcntary manner.
The ririg1i:nlapitd ,of,the Hoil,di,ngCoimpany whi~chstuod
at UA2rniiklionwas sulbsequ~erWl~nlcreaseby EM'6.4,miUion
in Ju.1~1976.
The activities of the Lifbyan Arab Maltese Holding
Company Limited have sofar been extremely eiicouraging
amndthe results already achieved show there is ample scope
for increased industrial contacts and joint investment prm
jects between the two countries. In August 1976 the Libyan
Arab Maltese Holding Company Limited made its first
major decision when it acquired a fifty per cent share-
holding in the Malta Shipbuildinig ComlpanyLimited which DCCUMEKîARY ANNEXES TO THE COUNER-MEMORIAL OF LlBYA 221

Annex 15

AGREEMEhT BETWEEN LIBYA AND MALTAESTABLISHIN A FISHING COMPANY

AGREEMEhSBEPUEENTHE GOVERNMENTOF THE REPUBLICOF MALTA
AICDTHE SOClALlSTPEOPLE5 LIBYANARABJAMAHlRlYA
FOR IHE ESTABL.ISHMENTOFA MAITESE-LIBYAS FISHIHG COMPANY

Whereas pursuant to minutes of meetingsheld betweenthe SocialistPeople's
Libyan Arab Jamahinya and the Republic of Malta, in Malta on 5-7 Tho-
Alheja 1394Hija?comsponding to 19-21Decemher 1974,and followingfurther
meetin@both pdes agreed to establish a Malta-Libyan Arab Joint Fishing

Companyon the followingbasis: -

Arricl1
The name of the Company shall be "The Maltese-Libyan Arab Fishing
Company".

Articl2

The main officeof the Company shall be in the cityof "Valletta". The Com-
pany mayeîtablish branchesin Malta or Libya,or outside the Iwocountries.

Article3

The capital of the Company shallbe (I,M)0,000)one millionMaltese pounds
and shallbedivided inIo onc hundred thousand (100,000)shares of ten Maltese
pounds (fM10 )ach.The issucd share capital shall bc four hundrcd thousand
Maltcsc pounds (fM4ûC1.000d)ividedinto forty thousand (40,000)shares of ten
Maltcsc pounds(IMIO)each, and thesesharesshall be allottcd as Iollows:
- The ~&ialist Pcoplc's1,ibyanArab Jamabiriya shall hold (20.000)shares;
- The Republicof Malta shall hold(20,000)sharcs.

The management of the Company sboll be vested in a Board of Dircctors
cmnprking six members, th~c of them representing the Socialist People's
Libyan ArabJamahiriya and thrcc representing theMalleseGovemment.
All daisions of the Board shall be taken by a rnajority of al leest five
members. . ~

ïhe Chairman of the Board shall be appointed from among the Maltese
members while the Managing Director shall be appointed from among the
Libyan members.
The General hsemhly shall determine the remuneration of the members of
the Boardof Dùacton.
Article5

The duration of the Comoanvshall be for an indefiniteoeriod but. unlessit is
terminaied earlier, or exteided: hy the shareholdersin gèneralmeeting,it shall
hc dissolvedon iheapseof 50years. Article 6
The Government of Malta shall relend to the Company tht loan made by thc
KuwaitiFund for the setting up of a fishing project in Malta and on thcir par1

the Jamahiriya shall givc to the Company a loan in thc samc sum and on thc
samcconditions.

Article 7

Any dispute resulting from the execution of this agreement should be seitied
on an amicable basis, and if a settlement is not reached through negotiaiions
within threc months, the case may be referred to arbitration on a proccdure to
be agreed by the two contracting parties.

Arricle8

This agreement shall come into force on the date of exchange of the official
notification of its ratification.

Done and signed at Tripoli on II of Shaaban 1398 H corresponding to
July 1978'in two originals, in Arabic and in English, both being authentic.

(Signed) [Illegible], (Signed) [Illegible],

For the Socialist People's For the Government of thc
Libyan Arab Jamahiriya. Republic of Malta. Annex 16

AGREEMEN BEWEEN LIBYA AND MALTA FOR THE SETTINGUP OF AJOINT
F~SHINV GENTURE

AGREEMNT FORTHE SETTINGUPOF A JOINTFlSHlNGVENTUREBEWEEN

THEGOVERNMENTOFTHE LIBYA'IARABREPUBLICAUDTHE GOVERNMENT
OFTHE RIIFUBI.ICOF MAITA

In accordana with thc minutes of the meeting hcld between Colonel
M. Gaddafi, Chairman of thc Rcvolutionary Command Council of the Libyan
Arab Republicand Mr. Dom Mintoff, PrimeMinister ofthc Republicof Malta
held during 19th,îûth and 21st December 1974(comsponding to 5-7 Tha Al
Higga H.);and
In amordancc with theminutes of the meeting betweenthe Prime Ministerof
Malta, Mr. Dom Mintoff,and thc Prime Minister ofthe LibyanArab Republic,
Major Abdul Salam Jalloud, hcld inTripoli on thc 19th May 1975(correspond-
ing to 7 Gomada El Awal 1395H.), and following the meeting hcld inTripoli
in Febmzry 1975 (corresponding to Safar 1395H.),hctwecn Dr. Omar AI
Mugsi,Minister ofState for Food Affairsand Marine Wealth,and MI. Freddie
Micalkf,Minisferof Agricultureand Fisheries;
The two Misttrs have met in Valletta on 10thJune 1975(corrcspondingto
30 Comadi El Awal 1395H.), and to fuither strengthen the existing relations
betwemthe two Rcpublics,haveagreulas follows:

1. Thc Govcrnmcnr of Ihc Lihyan Arab Rcpublic will providc Iwo vc-sels
the Susaand a ncw vesse1- in good condition and tully cquipped for
immediaictrawlcr fishimgoperatioinLibyan and Maltcse waters.These
vesselswilbton loan for a maximum pcriodof six months during whicha
LibyanMaltcse Joint Fishing Company will bc cstablisasdpari of the
adivities of thc Libyan Arab Maltesc HoldingCompaasper instrument
si@ on Monday, 19th May 1975(corrcsponding lo7 Gamada El Awal
1395H.) btiween thc two Governmcnts.
2. The two vcsselswill hc operated by crewvprovidcd by the two countries.
Each country will be responsiblc for the poyment of tht wagesof ils own

crcw.
3. The Malta Governmcnt will providc at their own expenscthe nccessaiy
technid know-how for the operaiion of lhese vessclswilh thc approval of
bothGovernmcnts.
4. Maintenancewillbc at the cxpenseof the Malta Govcrnment.
5. The fuelrequirfor opcrating thesetwo vesselsbclsbad equally.
6. The Malta Govcrnment undertakcs to return 2h(two) vcssels,including
althe quipmcnt, in goodcondition.
7. Thw vessds dl bc usedcxclusivclyfor fishingpurposcs.
S. The catcheswilbcshared equally.
9. A Joint Committee will bc cstahlished immediately betwccn the two
Gmemmems to draw UD the framework of a Lihvan Maltese Fishin-
Company. Signcd in Malta on Tucsday,10thJune 1975(corresponding10 30 GomaduEl
Awal 1395 H.)in two original8wilh thc Arabic and English Languages, buih
tcxtsking equallyouthentic.

CSignedj Dr. Omar ALMUGSI, (Signed) AlfredMICALLEF,

Ministerof State for Food Ministerof Ag~iculture
Affairsand Marine Wealth and Fisheries
forthe Govemmentof the for the Governmentof the
LibyanArab Republic. Republicof Malta. DOCUMFNTARY ANNEXES TO THE COUNTER-MEMORIAL OF LlBYA 225

Amex 17

PAGE 9 OF BURWN. REPORTON THE FfSHlNGINDUSTRYOF MALTA

Chapter One

THE SEmNG

The Maitese Islands consistof Malta, Gozo and Comino with a number of
sd uninhabited islcis.Thcv lic in the centre of thc Mcditerranean Sea about
sixt) miles south of Sicilyand one hundrcd and cighty miles nonh of Afnca
(Figure 1). Th~sgeographicai position. in conjunction wiih the mistaken belicf
Ihat the sea abounds infish. is the Caux of much of the cnticism of the rishina
industry. Whyshould m al tbe'dcpcndent upon imports of processedfish? ~nd
whyshould the fishermenoperate in the creeks andharboun? Butthe producti-
vity of the MeditercancanSea is not high- the crystal clear waterreflecisthe
scarcity of the micro-organismsupon which life inthe sea ultimatcly depends.

Moreover, it is one of the most heavily fished areas in the world and will
bemmt increasingly so in the ycars to come. Meanwhilc,the fmhinggrounds
witbin the range of rhc existingfishingfleet are limited in extent and the avail-
ablercsourŒsmusi be fullyutilised.

THEFlSHlNG GROUNDS

The Maitese Islands lie on the south-western extremity of an extensiveshelf
- over which the watcr does not exceed one hundrcd fathoms in depth -
which extcnàs southwards from thc caslern end of Sicily.This areaisnoi rich
and maior bottom fishcncs lie within de~th of Itss than fifty fathorns. In this
rcsacct Malta isf~-u~ ~ ~as it is situatëd on thc wcstcrneitremitv of a laruc
plak~A over whicbihe dcpths vary from twenty Iofiftyfathoms (figure2). Ïn
the north-easith18platform is barcly four mileswidc and it is lessthan this on

the southcrn and westerncoastscxccpt in the vicinityof Filfla. Eastwards,how-
cvtr, it morc txttnsivc and inciudesthe shallow Hurd Bank whichis of grcai
impo-nŒ to the iîshingindustry. Beyondthe hundred fathom line the bottom
slop rapidly inIo dccpcr wattr and within a short distance dcpths of four to
sixhu---ed fathoms arc rcachcd.
Sim the bnno; (shencs a;? largelyrestricçcto areas in whichihe nca in
lear than rdtytathorniindepth. the fishingintcnsity on the plaifom surround-
ini the irland is hixh Moreover.thc shcliercdcrceks and harbouarc cx~loiied
b~professional fiikemcn particularly in rough wcathcr. This has given'riseto
considcrablcfriction betweenthe amateur and professionalfmhemen.
The morc distant grounds on the coastal shelf of Tunisia and the small
Medina Bankxiuth of Maita are onen to the fishcrmen.Unfortunatelvthere are
onlyjour fishingboats in the c<istjngflcetwhich are largccnoughto makc the
trip safely and ihere are no quaiiiicd navigaiors availablc in the indusiry. In

&equcÏnce, although the productive fisbing grounds off Lampedusa are less
than 100milesfrom Malta, little useis made ofthat area. Annex 18

The fivefactors whichappear to havemilitatedagainst developmentdong the
linesindicatedaboveare:

(1) Lackofcapital (nlthoughgrants and loansare availahlc).
(2) Lack of knowledge of techniques used elsewhcre(although it is acknow-
ledgad that ltalian trawlers have somc of these aids and appear to be
profitable).
(3) Lack of experiencein the financingand opcrating of fishingcompanis and
of financing largerand more sophiiticatedfishingvesscls.
(4) The bcliefthat largcr vesselsnctd larger crews and therefore are not prc-
ritable,i.c.,"A launch rcquiresfour menfor longlining,thereforewhytrawl
with8 to 10men?"

(5) The dilike of Maltese fishermen of staying out at sea for any pend
teyond Iwodays.This mayor maynot hc true but it issaid to be the reason
whv.on existinatrawlers,the crewsare nredominatelvItalian. It is ~ossible
that this situation has developcd,no1b&ausc of a rclÜclanceof the~~alicsc
fishermcnto be awayfrom home but becausethcy prcfcr IO work in family
units, which mus1involvesmall boats within their capital resources. Pro-
viding thesc can offer an acceptable income, andthey will so long as the
market isgrosslyundersupplied,theysecno reason whythey shouldsiayat
%a longer. In otber words, the dislike of spending more time a1 sea is
related to lack of competition and lack of an appreciation of modern fish-
ingmcihods,rnlhcr than an ingraineddislikcof beingawayfrom home.

In discussion withtwo owners,each of whom operares a trawlcr ofapproxi-
matelv 70ft. it was madeouite clear that trawlinn is a orofitable business and
sou1d.k mire profitable iithc distribution and mUarkctiAo gf fish in Malu wu
i>rgkoucdproperly and a dcmand crcated for sll spccicscaughi. At prenent 6
seleciionof the s~eciescauaht is made by the trawlcrsand onlv ihose whichsel1
at high pricesarElanded inMaIfa. The iemaining speciesareiransfemd ai seri
for sale in Sicilyand other ltalian markets. Similarly,somc of thc speciesfetch-

ing a high pricc in Malta arc transfcmd from vcssclsfishing under the ltalian
Oagio Maltcse vcssclsfor sale in Valletta market. Bccauseof this transfer of
part of ~hccatch between vcssclsof different flags, thc statistics of landings
shown in ihc annual tables arc not meaningful,nor are the figuresgiven in thc
officiaitables of the grossearnings of the seventrawlersreferrcdto earlier.
Eamines for the small Maltese trawlers and the Sicilian trawlers. eiven in
confiden&, clcarlyindicatc that a trawler of 7011is an attractive ccon~~icpro-
position and largervessels,unresiricted hy wcather, couldte cvcn more atirac-
tive. However.ëxceot for two vessels.both aporoximatelv 70ft long. there has
ben no developmc~tof this type of fl&t becaÛ;eof the faitors given-earlierand
becausemarketsin Italy are more receptivethan in Malta.
In this repoii on the fishing industry of Malta, Burdon recommendedthe
introduction of larger trawlers. Government aidwas providcd anda number of
trawlm up to 70ft werepurchased. However, the cxpectedgrowth in the traw- MCUMENTARY ANNEXES TO THE COUNTER-MEMOR IF LlBYA 227

Icr ket pas no1niainiaincd and vesselslarger (han 7011werr no1boughi. ?lis

may bc due IOthe fociors lisred cnrlicr, i.c., lack of manngemrnt erperience,
Ixd of crews. lack of exocncncein modcrn fishingtechniquesand operation of
largersophisticatevcssëls. Quitc naiuraily. applkaiions for goveremcnt assis-
tancewere,and continueto be, made largelyby opcrators of smallervcssclsand
thetype ofvesseiswhichare traditional.
ln au of 1969,£18,000was available for grants andLIZ.00 for loans and
beiwpen 1964and 1970£30,000wasgivenas grants and loansfor 16luzzosand
sixlaunches. CONTINENIA LHELP

Annex 19

PAGES73-74 ANU 76OF ANDERSON AND BLAKE **THE LIBYAN

FISHING INDUSTRY IN ALLAN (ED.),LIBYA SINCE INDEPENDENCE

[73-741
INTRODUCTION

With 1.685 kmof coastline. and thc second largest area of continental shclf in
the Mcditcrranean (some 57,000km' io 200 melres of watcr) Libya appcars ta
have every opportunity for fishing. Lihyan waters however are not patiicularIy
high in phytoplankton production, largely because of a shortage of nutrienu.
The north coasts of the Mediterranean are far more favourahle for fish food
prduction, but even these do not rank amang the best fishing grounds in the

world. With catches bv non-Mediterranean States such as Janan taken into
acçount, approximateli 1.2million tonner of fish werecaught inthe Mediterri-
nean and Rlack Sca in 1977of which about thrcc-quartcrs was from the Mcdi-
terranean Sea. Total ~otential vroduction from the~Mediterranean is uncertain.
but it seems clear thaiin some areas catches could he increased and this indudes
f~hing grounds off Libya. Fishstocks are not unlimited, however, and optimum
size of catch has been reached for several species aiready in the Mediterranean
as awhole. At nresent Libva'sfish catch is one of smailest in the Mediterranean
(.Tablel), but ihe ~ib~an-~overnment hopes ta expand production to 8,00%
12,001tonnes by 1995.

HlSTORlCAP LERSPECTIVE

Pre-I~aliaPeriod

There was vcry little indipcnous fishing along the Libyan coast in thc carly
years of thc twentieth century This relative neglect of rishissurprising. bui
ma!. k attrihued Io: coastal waters noted for frequcnt storms; lack of natural
harbours ; absence of a seafaring tradition and inclifferenceto fish eaimo-:
rance about the productivity ofcoastal waters; high price of fish compared with
mçat ; and a small and scatlered population, many of whom luvoured the hiUy
districts of the intcrior to the coast. The last point deserves cmphasis: at the
bcginning of this century Ihc population of Libya was probahly around half a

million, many of whom wcre nomads.
'l'ableMcditcrraneanandBlackSeatïshcatchcsbucoasialStatcs(19771intonncs
. ~
Albania 4,000 I.ibya 4,8034
Aigeria 43,475 Malta 1,459
Bulgaria 10,172 Morocco 33,474
c?PJs 1,189 Ramania 6,142
EaPi 6,683 Spain 140,957
France 44,011 Syria 826
Greece 71,842 Tunisia 38,441
Isracl 3.644 Turkey 138,174
Italy 355,213 USSR 244,098
kbanon 2,400 Yugoslavia 35,248

* FA0 estimate:the 197catchvas actually2,475tonnes
Sourrr:Ywrbooko/FïrherSlorUliVol.44,1977, A01978TablcC37. WCUYENTARY ANNEXES TO THE COUN'rER.MEMORIAL OP LlBYA 229

Dctaiis of fwhing ORLibya beforc the First World War arcskeichy. A few
amall boals engqd in inshorc lïibing, notably in Tripolitanian waters. Tradi-
-~-nal-nnnm fishiop was alreadv hiehlv devcloucd. lar~clvbv the Greeks. and
r---m- 7 ~~- .~-. - > .
sponge production incrcasedduring the ninctee~~hbcntur~to reach an ail:time
rie& of 71.883ka in 1911.Foreign fishing boats (Grcck, Maltese and Ltalian)
dso fshed in Li& watersand nsited Libyanports from time to time
TheIlalian Period 1911-1943

The ltalians had someknowledgeof Libyan waters,and appear to bave been
determinad to exploit their potential for fish, sponges, coralsand the cultiva-
tion ofpearlsAs earlyas 1912fishingboats from Naplesweresent to undertake
fishing trialsfro. .

[76]

-f L250,000 and the spongecatch at fL 30,000in 1958,or about 0.5 percent of
GNP. In gcncral. firhing methods (other than spongc fishing)wcreregarasd
rather primitive,thc catch per man fishingday being aslas10kg, compared
with 100kg in many oiher Mediterraneancountries.
During the later years of this pcriod, the sponge fishing industry vinually
disappearad, while the number of tonnara in operation declinedto fiveoassix
a mult of faiiiingcatchesof tuna.

1970-1980

The 1970switnessedsi&icant advancesin the Libyan fishing industry.Total
catches roseIo ovcr 4,000 tonnes per annum, largclas a rcsult of the opera-
tions of threc companies using modem trawlers to exploit the waters of the
continental shclf. beyond the range of traditional boats. Figuresof catches for
1974-1979showthat Libyan catchesdoubled in about two dccades (Tabl2).

Table2. Libya: lïcatches1974-7(itonrica)

C~mp~~ih 1974 1975 1976 1977 IP78 1979
Libyn FishinCompany 308 173 366 229 2W lu)
Libya-TuniriaCompany 351 659 293 310 430 312
Libya-Cm Company - - - - .. 46rl

Toid 659 832 659 539 630 896
Riwre Seclor

Tripoli 2426 2722 Ibû2 1022 1783 1676
BcnghaEi 280 312 317 316 1123 WO
Zawia,Zuwarah 294 337 197 151 206 560

Total 3668 3973 3401 1936 3725 3604

GrandTotal 4327 4805 4060 2475 4355 45W
Sowrr:Drpm-t d Rodudio~Tripoli.Seplcmbr 1980.

Dunng the 1970s the Government of Libyaevolved plans to devclop the
fishing industryiots optimumlevel.Libyawithout oil ispoorly endowed... CONTINENTALSHELF

Annex20

PAGE -8, 12, A29-4OFDEVELOPING ISLAND COUNTRIES,
UN DOC.TD/B/443/R~v.l

[Nol reproduced]

Annex21

PAGE9 OFTHEANNEX AWACHED TOUN DOCUMENT A1321126,2JUNE1977

[Nor reproduced]

Annex22

PAGE3SAND4 OFDICKINSO TH.EQUAUTY OFSTATES
IN INTERNATIONhW

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Annex23

PAGE510OF REUTERPRINCIPEDSDROITINTERNATIONAL PUBLIC

[Nor reproduced]

PAGE287OFTHETHIRD UNITEDNATIONCSONFEREN CE
THELAW OFTHESEA, OFFICIAL RECORDS. IIL.

[Nat reproduced] DOEUYBNTAKYANNEXES 10 THE COUNTER-MEMORlAl. OF LlhYA231

Annex25

PAGES 87AND 89OFGENERA ALSSEMBL YFFICIARECORDS,
28r~ SESSIONSUPPLEMENT NO.21(A/9021)VOL.III

[Nor reproduced]

Annex26

PAGES232AND 233OF THE THIRD UNITENATIONCSONFERENC ON
THELAW OFTHE SEA, OFFICIARECORD S,L.III

[Nor reproduced]

PAGE 84OFTHE THIRD UNITED NATIONS CONFERENCEON
THELAW OFTHE SEA.OFFrcrARECORD SO.L. VI1

[Notreproducedl

Annex28

PAGE^ OF THETHIRD UN~TE NATIONS CONFERENCEON
THE LAWOF THE SEAOFFICIARECORDS VOL.1

[Nor reproducpd]

PACE79 OFTHE THIRDUNITED NATION SONFERENCEON

THE LPiOF THESEA,OFFICIALRECORD S.L.IX

[Nol reproduced] CONTINENTS ALELF

Annex30

PAGES210-21OFTHE THIRDUNITEDNATION CSONFERENC ON
THELAW OFTHE SEAOFFICIALRECORDS,VOL II

[Nor reproduced]

LIMITSIN THESEAS:N81,27DECEMBE R979,P.6; NO.83,
12FEBRUAR Y979PP.13-14;No.84.1FEBRUAR Y979P.5;
No.97,6 DECEMBE 1982,P5

[Not reproduced]

PAGES 281m 284 OFGILBERTGUILLAUM'E L.ESACCORDD SEDELlMlTRllON
MARITIMEPASSES PAR LAFRANCE",PERSPECTIV ES DROIT DE U MER A
L'ISSUE DU TROISIEME CONFÉRENCEDESNATIONS UNIES. COLLOQUEDE
R~UEN DE 1SOCI~TFERANÇAIS EOUR LE DROINTERNATION1 A98,3

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Annex 33

UNDOCUMENN TS7/2/REv 2ANDNG7/IO/REV2 ..28 MARCH1980

[Not reproduced] DOCUMEMARY ANNEXESTO THE COUNïER.MEMORIAL OF LlBYA 233

Asnex34

PAGES188 ANo190OFTHE UNITED NATIONCONFERENC ON
THE LAW OFTHESEA.OFFICIAL RECORDS. VO111

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A~ex 35

PAGE 42OF ?$EWDIRECTIONS IN LAEWOF THESEA.DOCUMENTS,VOL.1

[Nor reproduced]

PAGFS651652OF KARL-,ISLAND SNDTHE DELIMITATIOOF
THECO~TINE~AL SHELF A FRAMFWOR FKR ANALYSIS", IN
AMERICAHJOUR.VAL OFIA'T~RNATION,!W.Vol.71,1917

[Nor reproduced]

PAGE132 OFDE AZCARRAGA "ESPARA SUSCRIBECON FRANCIAE ITALIADOS
CONVENIOSSOBREDELIMITACI OESUS PUTAFORMAS SUBMARINAS

COYUNES", W REVISTAESPANOU DE DERECHO INTERNACIONAL VOL. XV;I
UNOFFICIATLRANSU~ON

[Nor reproduced] CON'rlNEKT SHELF

Annex38

PAGE S42,749AND75OFFELDMAN ANDCOLSO"N, HMARITIME
BOUNDARI OESTHEUNITEDTATES N: AMERCANJOURNAOF
INTERNATIONLALK VOL7.5,1981

[Norreproduced]

Annex39

PAGE426OFHODGSO ANNDSMITH"BOUNDAI RSSUESREATE DYEXTENDED
NATIONA MARINJEURISDI~ON N,THEGEOGRAPHICAREVIEW,
VOL6.9NO.4,OCTOBE1R979

[Norreproducedj

Annex40

PAGES224-22OPROWET TH,ELECAREGIMEOFISLANDS
IINTERNATION ALW

[Norreproduced] 1,the undmignad, AbdelrazegEl-Murtadi Suleiman, Agent of the Socialist
People's Libyan Arab Jamahiriya, herehyertify that the copy of each docu-
ment attachad as a Documentary Annex in Volume 111of the Counter-
Mernorial submitted by the Socialist PeoplLibyan Arab Jamahiriya is an
amrate mpy: and thai al1translations are accuratetranslations.

(Signed) AbdehazegEL-MURTAD SI LEIMAN,
Agentof the SocialistPeople's
LibyanArab Jamahinya.