Dissenting Opinion of Judge Oda

DISSENTING OPINION OF JUDGE ODA*

1. To my profound regret, 1find myselfunable tosharethe viewsof the
Court on manyessentialpoints. First of all, the Court fails,in my view,to
arrive ata proper appreciationof the "trends" at theThird United Nations
Conferenceonthe Lawof the Sea,andinterprets them simplyby lookingat
a fewprovisions now standing in the draft convention. The Court largely
ignores the changes that have occurred in the concept of the continental
shelfand theimpact that the newconcept of the ExclusiveEconomicZone
may have on the exploitation of submarine mineral resources. It will be
surprising to any student of the law of the sea to find that the words
"Exclusive Economic Zone" appear only once in this lengthyJudgment,

and then only in connection with historic sedentary-fishing rights
(para. 100). Secondly, the Court suggests as the positive principles and
rulesofinternational law toapply in thiscaseonly equitableprinciplesand
the taking into account of al1relevant circumstances(para. 133, A).This
merely amounts to an uninformative rearrangement of the terms of the
main question put to it. It appears simply to suggest the principle of
non-principle. The Judgment doesnot evenattemptto provehow the equi-
distancemethod, whichhasoften been maintained to embody a rule oflaw
for delimitation of the continental shelf, would lead to an inequitable
result. Indeed, it gives that method rather short shrift. Furthermore, the
line suggested by the Court in dealing with the practical method to be
employed in application of the(unspecified)principles isnot grounded on
any persuasive considerations. It is in particular entirely obscure why it

should featurea veeringpoint at theparallel of themost westerlypoint on
the coastline of the Gulf of Gabes. The Judgment appears, to my eyes,
simply as one appropriate to a case ex aequo etbon0such as rnight have
been decided, if the Parties so agreed, in accordance with Article 38,
paragraph 2,of the Statute. But thepresent caseiscertainlynot one of that
kind. Thus 1feelbound to subrnit my own analysis ofit, and, sinceit ismy
duty tofound myassertions,this willinvolvegoinginto considerable detail
upon most of the essential points.

2. My analysis will be presented in the following order : Chapter 1 -
Trends at theThird United Nations Conferenceon the Lawof the Seaand
the status of the draft convention on the Lawof the Sea ;Chapter II - The

traditional concept of the continental shelf ; Chapter III - Sedentary
fisheries and historic rights ;Chapter IV - New trends in the concept of

* A synosical table of contents appears at the end.

143158 CONTINENTAL SHELF (DISS. OP. ODA)

the continental shelf ; Chapter V - Impact of the concept of the exclusive
economic zone on the concept of the continental shelf ; Chapter VI -
Trends in the delimitation of the continental shelf/exclusive economic

zone at the Third United Nations Conference on the Law of the Sea ;
Chapter VI1 - Principlesand rules of the delimitation of the continental
shelf/exclusive economic zone ; Chapter VI11 - Practical method sug-
gested.

SectionI. "Trends" as Interpreted by Tunisia and Libya

3. The Court had been requested, under Article 1,paragraph 1,of the
SpecialAgreement signedby Tunisia and Libya on 10June 1977,to render
itsjudgment as to "Quels sont lesprincipeset règlesdu droit international
quipeuvent être appliquéspourla délimitation" (according to the French
text supplied by Tunisia), or "What principles and rules of international

law may be applied for the delimitation" (according to the English text
furnished by Libya), of the area of the continental shelf appertaining to
Tunisia and the area of the continental shelfappertaining to Libya,and in
rendering its judgment the Court (according to the Tunisian text) is
required "de tenir compte" of equitable principles and the relevant cir-
cumstances whichcharacterize the area, aswellas the "tendances récentes
admises", or (according to the Libyan text), "the Court shall take its
decision accordingto equitableprinciples, and the relevantcircumstances
which characterize the area, as well as the new accepted trends" in the

Third United Nations Conferenceon the Lawof the Sea(UNCLOS III). 1
use these French expressionsin addition to the English ones because of
alleged discrepancies between the translations made from the original
Arabic into French by Tunisia and into English by Libya. Putting the last
part first, it seemed clear that it would be indispensable, in ascertaining
"the principles and rules ofinternational law" to applyfor the delimitation
of the continental shelf, to take account of "equitable principles" and of
"the relevant circumstances whch characterize the area". However, the
Parties professed to have divergent interpretations of the meaning of the

"tendances récentes admises" or "the new acceptedtrends" at UNCLOS
III, and of the role these should play in determining the "principles and
rules of international law".
4. There werecertaindifferences of opinion between Tunisia and Libya
as to how the "tendances récentes admises"or "the new accepted trends"
had taken shape.According to Tunisia, replying to a question 1put to the
Parties at the hearing on 9October 1981 : "The Conference itself has determined the process whereby the
negotiating texts examinedby it become admitted trends in the law of
the sea.Thus in 1978(A/CONF.62/62 of 13April1978) it decided to
identify the outstanding issues still requiring negotiation, whch
signifiedthat anynon-contestedprovision of the Informa1Composite
NegotiatingText (ICNT), or any the contestation of which had been
deferred,constituted atrend admitted at that date (whichwasthe case
with theconcept of the exclusiveeconomiczone, the régimeofislands,
etc.).
The process of identifying the hard-core issues calling for further
negotiation and consultation with a view to reaching compromise
solutions, which would be adopted by consensus or be found gener-
ally acceptable, led to the specification of seven issues of which one

was the delimitation of maritime boundaries between adjacent and
oppositeStates.This means that Articles 74and 83of the 1977ICNT
did not, at that stage, constitute trends admitted by the Confer-
ence.
The Conferencehad also laid downa process for the revision of the
ICNT whereby aprovision could onlybemodified if the newwording
were adopted by a consensus or found by the "college" of the Con-
ference to be likely to offer a substantially improved prospect of a
consensus.
Thus this procedure, decided by consensus at a plenary Sitting of
the Conference, does not leave any room at al1for individual inter-
pretation of what may constitute an admitted trend. It is the Con-
ference itself whichdecideswhat isadrnitted,amongthepoints which
had been left over for discussion, and its decision is expressed in the
form of amendment of thenegotiating text,known as the ICNT inthe
initial phaseand as the draft convention (informa1text)in the second

phase. Finally, the officialization of the draft convention decided at
the latest session definitively reinforced and crystallized the trends
admitted within the Conference, which now cover the whole of the
draft."
Thus Tunisiaconsidered theprovisions of the draft convention on the Law
of the Sea (A/CONF.62/L.78) as reinforcing and crystallizingthe "ten-
dances récentes admises". Libya, on the other hand, took the following
view in its reply :

"The process by which newtrends were accepted in the conference
was the 'consensus method' - which may or may not represent the
position of each Stateon the point. 'Consensus' isa device to permit
an appearance of agreement where voting would not. 'Consensus'
may be influential in development of a rule of customary interna-
tional law, but adoption of a provision by 'consensus'at an interna-
tional conference does not by itself create such a rule."Libya thus did not make clear its views on how the draft convention
reflected new trends at UNCLOS III, but it does not apparently seem to
have been its opinion that the actual provisions of the draft convention
necessarily represented the "trends" of UNCLOS III. What is more, in

1977,when the Special Agreement between Tunisia and Libya was con-
cluded, the decision of UNCLOS III recorded as A/CONF.62/62, and
quoted by Tunisia$ad not yetbeen taken. Thus it must bepointed out that
both in 1977,the time of the conclusion of the SpecialAgreement, and in
1981,the time of thehearing, no commoninterpretation existed as to what
would reflect the "tendances récentes admises" or "the new accepted
trends".
5. If the trends of UNCLOS III or the provisions of the draft conven-
tion on the Law of the Sea had become establishedprinciples and rules of
international law, particularly so far as concerns the delimitation of the
continental shelf,theCourt would naturally havebeen bound to take them
into considerationin itsjudgment, even if it had not explicitlybeen asked

to do so by the provisions of the Special Agreement. However, neither
Tunisianor Libykmade thesemanticallycontradictory suggestion that the
"tendances" or "trends" assuchformed part of the principlesand rules of
international law. Instead, Tunisia stated :

"The Tunisian Governmentconsidersthat the 'recenttrends admit-
ted'can formpart of theprinciples and rulesofinternational lawtothe

extent that they may already have givenrise to a sufficiently abundant
practice to be considered as customary rules." (Emphasis added.)

Libya, on the other hand, stated :

" 'Consensus'may be influential in development of a rule of cus-
tomary international law,but adoption of a provision by 'consensus'
at an international conference does not by itself create such a
rule" ;

and

"New acceptedtrends, within the meaning of Article 1 of the Spe-
cial Agreement, fa11within the purview of the principlesand rules of
international law for the purposes of that Article on&if and sofur as
the Court concludesthat they are generallyaccepted by States soas to
have become principles and rules of customary international law."
(Emphasis added.)

6. If the trends of UNCLOS III or the very provisions of the draft
convention on the Lawof theSeahad not achievedthe status ofestablished
rules and principles of international law, how should the Court have
taken them into account under the Special Agreement of 1977 ? Tunisia
stated : "The 'recent trends admitted' which have not yet reached the
threshold of customary law are nevertheless to be taken into consid-
erationwithinthe framework of Article 1, paragraph 1,of the Special
Agreement, not as elements of the applicable law, for the two Parties
are in agreement that the reference to these trends does not confer
upon theCourta power to decideex aequoetbono,but asfactorsinthe
interpretation of the existing rules."

On the other hand, Libya stated simply: "[Ilt is for the Court to decide
what weight should be given to any 'new accepted trends'." In view of
these cautiousinterpretations, and given the care taken by both Parties to
qualify even such limited endorsement as they accord the provisional

results of the Conference, it would seem that the express reference to the
trends of UNCLOS III in the SpecialAgreement of 1977did not, in 1981,
have such great significanceasis generally thought or may once havebeen
expected. TheCourt was not requestedin delivering its Judgment to take
the trends of UNCLOS III into account as an element separate from the
principlesand rules of international law,but was simplyasked to have due
regard to those trends as material to aiding an understanding of what the
principles and rules of international law are. Yet it would have been
natural for the Court, even without any request to that effect, to pay due
regard to recent developments seenduring thepast decade in thecourse of
thedeliberations of theUnitedNations Sea-bedCommitteeand UNCLOS
III, which may reflect the principles and rules of international law
today.
7. Furthermore, since some provisions of the draft convention on the
Law of the Sea were often referred to, both in the pleadings and at the
hearing, in connection with the delimitation of the continental shelf, it
would have been appropriatefor the Court to express its general viewon
the status of that document in relation to the principles and rules of
international law, and more especially to the development of that branch
of the law of the sea concerned with lateral delimitation. Such a pro-
nouncement would have involvedthe Court as a wholein a closer analysis

ofprevailing trends than it has seenfit to perform,and such an analysis, as
1 see it, ought to have led it to a more fundamental conclusion than
underlies its judgment, and to a correspondinglydifferent approach. As
this analysis is essential to an explanation of my position, 1 propose to
begin it by first sketchingout how the draft convention was prepared.

Section II. The 'cConsensus"Formula of the Third United
Nations Conferenceon the Law of the Sea

8. On 16November 1973 the United Nations General Assembly, by
General Assembly resolution 3067(XXVIII), adopted by 117-0-10votes,
dissolved the United Nations Committee on the Peaceful Uses of the
Sea-bed and the Ocean Floor beyond the Lirnits of National Jurisdiction
(Sea-bed Committee), which had been functioning for the previous sixyears, and confirmed the decision taken by General Assembly resolution

3029A (XXVII) to hold UNCLOS III from the end of 1973onwards. In
proposing the draft of this resolution to the Plenary Meeting, the First
Committee on 25 October 1973 approved the following "gentlemen's
agreement" :

"Recognizing that the Conference at its inaugural session will
adopt ... its procedures, including its rules regarding methods of
voting, and bearing in mind that the problems of ocean space are
closely interrelated and need to be considered as a whole and the
desirability of adopting aConvention on the Lawofthe Seawhichwill
secure the widest possible acceptance,

[The General Assembly] expresses the view that the Conference
should make every effort to reach agreement on substantivematters
by way of consensus ;that there should be no voting on such matters
until al1 efforts at consensus have been exhausted ; and further

expresses the view that the Conference at its inaugural session will
consider devising appropriate means to that end." (A/C. 1/PV. 1936
(provisional).) (Emphasis added.)

9. However,at thefirst (organizational) session of UNCLOS III, heldin
December 1973, no agreement was reached on the rules of procedure.
Efforts to achieve an agreement during the inter-sessional meetings in
February and June 1974were also in vain. Difficulties mainly concerned
thevotingprocedure, which, the delegatesconsidered,might determinethe
character of the text tobe adopted. The rules of procedure, discussions on
which were prolonged for more than a week at the second session in
Caracas, were finally adopted by the Conference on 27 June 1974.Just
before their adoption, Mr. H. S.Amerasinghe, the President of UNCLOS
III, read out the following declaration, which was adopted by consen-
sus :

"Bearing in mind that the problems of ocean space are closely
interrelated and need to be considered as a whole andthe desirability
of adopting a convention on the law of the sea which will secure the
widest possible acceptance,

The Conference should make every effort to reach agreement on
substantive matters by way of consensus and there should be no
voting on such matters until al1 efforts at consensus have been
exhausted." (UNCLOS III, Official Records, Vol. 1,p. 52.) Section III. Negotiating Texts

10. In the course of the second session, held in Caracas in 1974,which
was actually the first substantive session,agreat number of proposals was
presented on subjects relating to the general problem of the law of the sea.
The Secretariat of the Conference prepared aWorkingPaper of the Second
Committee :Main Trends, the purpose of which was to "reflect in gen-
erally acceptable formulations the main trends which have emerged from
the proposals submitted" either to the Sea-bed Committee or to the Con-
ference itself and were to form a basis for its future work (A/CONF.62/
C.2/WP.l, UNCLOS III, Official Records, Vol. III, p. 106).

11. At the third session,in 1975,there wereveryfewofficia1sessionsof

either the plenary or the three main committees. On 18April 1975,the
only day of substantive discussions at the plenary meetings, the President
suggested that the chairmen of the three main committees should each
prepare a single negotiating text covering the subjects entrusted to his
committee,to take account of al1the forma1and informa1discussions held
thus far. It was understood that the texts would not prejudice the position
of anydelegation, and would not represent any negotiated text or accepted
compromise, andthat theywouldbea basisfor negotiation (UNCLOS III,
OfficialRecords,Vol. IV,p. 26).Thereafter al1the efforts of the chairmen
of the three main committees were directed towards the preparation of
such draft articles. Of course individual delegates were likely to have
submitted suggestions for inclusion in these draft articles, but no consul-
tations or negotiations among the delegates, or between the delegates and
the respective chairmen, werereported at all. However, on the final day of
the session, i.e., 9 May 1975,the President stated that the chairmen of the
three main committees had each drafted a singlenegotiating text (ibid.,p.
27). The Informal Single Negotiating Text (ISNT) (A/CONF.62/WP.8 ;
ibid.,pp. 137ff.)was circulated at the closeof the session.The ISNT wasa
mere compilation of the draft articles prepared and submitted separ-
ately by the chairmen of the three main committees, without even

a continuous through-numbering of the articles belonging to the three
separately prepared parts.

12. A note placed by the President of the Conference at thebeginning of
the ISNT explained its character very well :

"In his concluding statement [on 18April 19751 ... the President
stressed that the single text should take account of al1the forma1and
informa1discussions held so far, would be informa1in character and
would not prejudice the position of any delegation nor would it
represent any negotiated text or accepted compromise. It should,
therefore, be quite clear that the singlenegotiating text willserveasa
procedural deviceand onlyprovide abasisfor negotiation. It must not in any way be regarded as affecting either the status of the proposals

already made by delegations or the right of delegations to submit
amendments or new proposals." (Ibid. p. 137.)

The introduction to Part II, covering the subjects entrusted to the Second
Committee and written by the Chairman of the Second Committee, reads
in part as follows :

"The particular nature of this text did not allow theretention of al1
the trends reflected in document A/CONF.62/C.2/WP.l [Working
Paper : Main Trends, as referred to in para. 10 above] and in other
proposals submitted either to the Committee on the PeacefulUses of
the Sea-Bed and the Ocean Floor beyond the Limits of National
Jurisdiction or to the Conference. The aim of the Conference in
adopting the new method for the future stage of its work would have
been defeated had al1trends been retained in this text. It was possible

to amalgamatesome of thealternativeformulationsbut in other cases
it was necessary to choose between conflicting proposals. In certain
cases, a middle course was adopted.

Thejustification for the task entrusted to me is to be found in the
particular nature of the single negotiating text as defined by the
President and in the need to have a worlunginstrument on the basis of
which the process of negotiations can be intensified. 1have endeav-
oured to accomplish this task to the best of my ability and expressthe
hope that it will fulfil the purposes for which it was requested by the
Conference." (Ibid., p. 153.)

13. At the beginning of the fourth session, in the spring of 1976,the

President of the Conference indicated that the next step should be the
preparation by the chairmen of the three main committees of a revised
singlenegotiating text in respect of each of their cornmittees, and that this
revised text would reflect, as far as possible, the result of the informa1
negotiations which had already taken place.Almost al1the deliberations at
this session were, in fact, held during informa1meetings in camera, but
various groups, regional or functional, also held a number of informa1
consultations. No report was submitted to the plenary meeting by the
chairmen of thethreemain committees, and no singlereport on thework of
the working groups within the main committees is to be found. What is
clear is that on the last day of the session the Revised SingleNegotiating
Text (RSNT), consisting of three separate texts, with again separately
numbered articles submitted by each of the three committees, was circu-
lated (A/CONF.62/WP.g/Rev. 1 ;UNCLOS III, OfficialRecords,Vol.V,pp. 125f.).The note by the President,attached tothistext,reads in part as
follows :

"These texts have been prepared entirely on their own responsi-
bility [i.e.,that of the chairmen of the three committees] and willhave
no other status than that of serving as a basis for continued negoti-
ation without prejudice to the right of any delegation to move any
amendments or to introduce any new proposals. The texts must
not be regarded as committing any delegation or delegations to any
of their provisions." (Ibid.)

14. During the fifth session, in the summer of 1976,there was not one
officia1meeting of the SecondCommittee. Al1thedeliberationsconcerning
generalproblems ofthe lawofthe seawereheld in informa1meetings ofthe
committee or in its negotiating groups. However, the report by the Chair-
man of the Second Committee,presented to the Plenary, reflects a general
idea of the work whichhad been done inthe SecondComrnittee during this
session. Six important subjects were given priority in ths session and
entrusted to five different negotiatinggroups for discussion, among them
being "Definition of the outer edge of the continental margin" and "De-
limitation of the territorial sea, the exclusive economic zone and the
continental shelf between adjacent or opposite States". (Ibid., Vol. VI,
p. 136.)

15. For the sixth session, in 1977,there are also very few documents

describing the deliberations on the subject, but immediately after the
adjournment of this session the Informa1 Composite Negotiating Text
(ICNT) (A/CONF.62/WP. 10 ;ibid., Vol. VIII) was circulated, in which,
for the first time, articles were consecutively numbered from 1to 303.A
memorandum by the President of the Conference,attached to the ICNT
reads, in part, as follows :

"It wasunderstood that whilethePresident wouldbe free to proffer
his own suggestions on the proposed provisions of any part of the
compositetext,inregard to any matter which fellwithn the exclusive

domain of a particular chairman that chairman'sjudgement as to the
precise formulation to be incorporated in the text should prevail. The
adoption of this procedure was a recognition of the fact that each
chairman was in the best position to determine, having regard to the
negotiationsthat had taken place, the extent to which changes in his
revised single negotiating text should be made in order to reflect the
progress achieved in the course of negotiations where, in the chair-
man's opinion, such progress justified changes in the revised single
negotiating text and also to decide, even where the negotiationshad
not resulted in substantial agreement, whether such progress as had
been achieved warranted changes which would be conducive to the ultimate attainment of general agreement. It was also understood
that, so far as issues on which negotiationshad not taken place were
concerned, there should be no departure from the revised single
negotiating text unless it was of a consequential character. This
understanding was scrupulously observed in the course of the prepa-
ration of the informa1composite negotiating text. There is no ques-
tion, therefore, of joint responsibility being assumed for the provi-
sions of the text by the President and the chairmen of the three

committees.The chairman of each committee bears the full respon-
sibilityfor those provisions of theinforma1compositenegotiating text
which are the exclusiveand special concern of his committee.This is
not an enunciation of a new doctrine of collective irresponsibility.

The Conference also agreed that the composite negotiating text
would be informa1in character and would have the same status as the
informa1singlenegotiating text and the revised singlenegotiating text
and would, therefore, serve purely as a procedural device and only
provide a basis for negotiation without affecting the right of any
delegation to suggestrevisionsin the searchfor a consensus. It would
be relevant to recall here the observation made in my proposals
regarding the preparation of this text that it would not have the

character and status of the text which was DreLarAdbv the Interna-
tional Law Commission and presented to the Geneva Conference of
1958and would, therefore,not have the status of abasic proposal that
would stand unless rejected by the requisite majority.
Special attention was given,in the course of the preparation of the
informa1 composite negotiating text, to the need for CO-ordination
between thedifferent parts of therevisedsinglenegotiating text where
there appeared to be contradictions or unnecessaryrepetition." (A/
CONF.62/WP.lO/Add.l ; ibid., p. 65.)

16. The seventh session in 1978 needed two weeks to agree on the

organization of the work of the sessionand on 12April1978 it adopted the
report of the General Committee (A/CONF.62/61) as amended. (Deci-
sions printed asA/CONF.62/62 ;UNCLOS III, OfficialRecords,Vol. X,
p. 6.) It was agreed that this session should give priority to the identifi-
cation and resolution of the outstanding core issues and that the Confer-
ence should also discuss and resolve al1 other issues which remained
outstanding. Negotiating groups of limited size,but in which al1delega-
tions werefree toparticipate, wereestablished to dealwith sevenhard-core
issues, which included the subjects "Definition of the outer limits of the
Continental Shelf and the question of payments and contributions with
respect to the exploitation of the continental shelf beyond 200miles ;
Definition of the outer limits of the continental shelf and the question of

revenue sharing" and "Delimitation of maritime boundaries between
adjacent and opposite States and settlement of disputes thereon". It was167 CONTINENTAL SHELF (DISS.OP.ODA)

further agreed that any modifications or revisions of the ICNT should be
made in the following ways :

"10. Any modifications or revisions to be made in the Informa1
Composite Negotiating Text should emerge from the negotiations
themselvesand shouldnot beintroduced on theinitiative ofany single
person, whether it be the President or a Chairman of a Comrnittee,
unless presented to the Plenary and found, from the widespread and
substantial support prevailing in Plenary, to offer a substantially
improved prospect of a consensus.

11. The revision of the Informa1 Composite Negotiating Text
should be the collectiveresponsibility of the Presidentand the Chair-
men of the main committees,actingtogether as a team headed by the
President. The Chairman of the Drafting Committee and the Rap-

porteur-General should be associated with the team as the former
should be fully aware of the considerations that determined any
revision and the latter should, ex officio, be kept informed of the
manner in which the Conference has proceeded at al1stages." (A/
CONF.62/62 ;ibid p.8.)
17. The seventh session,in the spring of 1978,and the resumed seventh
session, in the summer of 1978, did not succeed in revising the ICNT,
though a number of reports of committees and negotiating groups were
presented at plenary meetings. Apart from the fact that the plenary held

severalforma1meetings to discuss substantivematters in the spring, most
of the discussions are believed to have taken place either at informa1
meetings of the cornmittees or in the negotiating groups. The reports
presented at the plenary meetings indicated that it was extremely difficult
to reach agreement on outstanding issuesin any committee or negotiating
group.
18. Towards the end of the eighth session, held in the spring of 1979,
lettersfrom various regional groups wereaddressed to thePresident of the
Conference, and several reports of committees and negotiating groups
werepresented to the Plenary, which held several forma1meetings to deal
with them. At the close of the eighth session, on 27 April 1979,the Presi-
dent and the chairmen of the main committees,together with the Chair-
man of the Drafting Committee and the Rapporteur-General, met, in
conformity with paragraphs 10and 11of the decisions taken by the Con-
ference on 12April 1978regardingthe organization of work, as quoted in
paragraph 16above, to consider revision of the ICNT. The subject-matter
that the team wasexpected to deal with wastheoutcome of the work of the

negotiatinggroupson certain hard-core issues.According to the explana-
tory memorandum of the President of the Conference attached to the
ICNT/Revision 1 : "[The team] .. recognized that it had to assumethe responsibility
of determining what criteria toapplyindeciding whether a giventext
enjoyed widespread and substantial support in Plenary and, there-
fore, offered a substantially improved prospect of consensus. The
President, it was recalled, had reiterated that the very nature of the
concept of a package deal must mean that no delegation'sposition on
a particular issue would be treated asirrevocableuntil at least al1the
elements of the 'package'as contemplated had formed the subject of
agreement. Every delegation, therefore, had the right to reserve its
position on any particular issue until it had'received satisfaction on
other issues which it considered to be of vital importance to it.
The team recognized that the discussionin Plenaryhad proceeded
on thebasis of the reports made by the Chairmen of Comrnittees and
Negotiating Groups and of the proposals and suggestions placed by

them before the Plenary. In those circumstances, it did not feel
empowered to consider anyproposals not coveredby thesereports for
the purpose of determining whether they commandedsufficientsup-
port in thePlenary tojustify their incorporation in anyrevision at this
stage. The President recalled that he had very clearly stressedin the
Plenary that al1outstanding proposals and issues would receivefur-
therconsiderationand that therevisioncontemplated would remain a
negotiatingand not a negotiated,text. It was accordingly agreed that
theproper description of the status of the text could best be conveyed
by the title 'Informa1Composite Negotiating TexURev.1'.

The team agreed that it was most important that the President
should stress, in this explanatorymemorandum, that it had been able
to address itself only to the texts placed before the Plenary by the
respective Chairmen and by the President and that, accordingly, as
the Presidenthad already recognizedin the Plenary,many issues and
proposals had not yet received adequate consideration and should
form the subject of further negotiation during the resumed session."
(A/CONF.62/WP.lO/Rev.l, pp. 18f.)

Thus the first revision of the ICNT was prepared as Informa1Composite
Negotiating Text/Revision 1 (A/CONF.62/WP.lO/Rev.l), on 28April
1979. Further efforts were made at the resumed eighth session, in the
summer of 1979,when a number of reports were received by the Plenary
from the regional groups and the negotiating groups, as well as from the
committees.

19. At the ninth session,in the spring of 1980,the Conference was able
to carry negotiations to the stage where, after a forma1 debate in the
Plenary on some reports from various groups, the collegium (previously
called the team) found itself in aposition to undertake the secondrevision,thus producing Informa1 Composite Negotiating Text/Revision 2 (A/
CONF.62/WP. 10/Rev.2). In the explanatorymemorandum by the Presi-
dent of the Conference, it was stated :

"To avoid any misunderstanding as to the status of the second
revision which is now presented,the President would wish to empha-
size that it must be regarded as a negotiatingtext which provides, in
the bestjudgement of the collegium,abetter basis of negotiation and
one that offers a substantially improved prospect of a consensus."
(Ibid., p. 22.)

20. During the resumed ninth session,inthesummer of 1980,theresults
of thenegotiations on outstanding issuesin themain comrnittee and in the
Plenary were discussed during the generaldebate, and the collegium took
note of thoseresultsand of thestatementsmadeinthecourse of the general
debate. The conclusions reached by the collegium were reflected in the
revision of the ICNT/Revision 2, and the collegiumunanimously decided
to adopt the title "Draft Convention(Informa1 Text)" for this third revi-
sion (A/CONF.62/WP. 10/Rev.3). It was stated in the explanatory mem-
orandum by the President that the observationsmade by him with regard
to the nature of the ICNT/Revision 2would apply with equalforce to this
new text. In other words, the draft convention(Informa1Text) was not a
negotiated text but still remained a 'hegotiating text", i.e., a basis for
negotiation whch had not itself beennegotiated,and therefore wasnot to
be represented as a set of proposals already enjoying a measure of mul-
tilateral acceptance.

Section IV. Draft Conventionon the Law of the Sea
21. At the resumed tenth session,in the summer of 1981,the text of the
draft convention wasrevised as the draft convention on the Lawof the Sea

(A/CONF.62/L.78) and the Conference recognized that the text as so
revised would no longer be an informa1 text. It would now be
"the officia1Draft Convention, subject to the following three condi-
tions :
First, the door would be kept open for the continuation of consul-
tations and negotiations on certain outstanding issues.The results of
these consultations and negotiations, if they satisfy the criterion in

A/CONF.62/62, willbe incorporated in the Draft Conventionby the
collegium without the need for forma1amendments.

Secondly, the Drafting Comrnittee will complete its work and its
further recommendations,approved by the Informa1Plenary, willbe
incorporated in the text.
Thirdly, in view of the fact that the process of consultations and negotiations oncertainoutstanding issueswillcontinue,the timehas,
therefore, not arrived for the application of Rule 33 of the Rules of
Procedure of the Conference. At this stage, delegations will not
be perrnitted to subrnit amendments. Forma1 amendments may
only be submitted after the termination of al1negotiations." (Ibid.,
p. xix.)

Thus even the 1981draft convention is not yet a finalized text to be put
to the Conference at its final stage for adoption.

22. Although the document entitled "Draft Convention on the Law of
the Sea", whch started as apaper suggestedby the President of UNCLOS
III, now has thestatus of an officia1document of the Conference, the draft
stillrequires various procedures and ample timebefore it can eventuate in
treaty law. It is expected that the "informally" edited draft convention on
the Law of the Seaas a whole willbe put to a vote or, preferably, adopted
by consensus (or acclamation) at one of the sessions of the Conference to

be held in 1982.Evenif the Conferenceagrees toadopt thiscomprehensive
text,it willstillhave to be signedby theplenipotentiary delegatesof States.
Even after being signed by States, the Convention must still be ratified in
order to become effective.According to Article 308 of the draft conven-
tion. the Convention will enter into force 12 months after the date of
dep& of the sixtieth instrument of ratification or accession, but of course
this article itself may be changed before being finally adopted by the
Conference. Whether or not the obtaining of the specified number of
ratifications willbe difficult was, of course, not amatter for the Court to
estimate. Although there is no doubt that when that number of ratifica-
tions has been obtained the Convention willbe binding upon those States
which have ratified or acceded to it, even this does not necessarily mean
that the text of the Convention will then have embodied or crystallized
pre-existing or emergent rules of customary law. (Cf. I.C.J. Reports 1969,
p. 41, para. 69.)

23. Itis however possible that, before the draft of a multilateral treaty
becomes effective and binding upon the Statesparties in accordance with
its final clause, some of its provisions will have become customary inter-
national law through repeated practice by the States concerned. In this

connection, certain provisions of the draft convention, which have been
inherited from the provisions of the 1958Conventionson the Law of the
Sea, may of course be regarded as already representing customary inter-
national law. In addition, what has been formulated with almost world-
wide CO-operationthroughout the decade may contribute to the develop-
ment of customaryinternational law, quite apart from theentry into force
of the draft as treaty law. However, the simple fact that the draft conven-
tion was prepared on the basis of the consensus formula adopted at
UNCLOS III, and that this document wasformalized at the suggestion of
the President of the Conference and was declared as being no longer aninforma1text, can hardly mean that the provisions of thedraft convention
are nowregarded or should be regarded as reflecting the principles and
rules of international law.
24. In UNCLOS III it was tacitly agreed that al1items should be dealt
with as a "package", and the suggestion of strict adherence to the con-
sensusmethod as an axiomatic procedure has been closelyfollowed. Such
procedure and method isan experiment without precedent in the history of
international law, and thus UNCLOS III can be described as a great
laboratory or workshop of international law.The experiment started inan
agewhen the ocean,occupyingtwo-thirds of the globe,whichhad htherto
beenconsidered mainly asan areafor communication andthe transport of
goods between nations, began to attract the interest of al1nations as an
arena for the acquisition of natural resources.To the extent that the ocean

was utilized only for purposes of communication and transport, there had
been no causeto excludeinterests other than one'sown.In the present day,
however, interests in the resources of the ocean, inevitably reflecting
individual national goals, have become mutually exclusive. In these
changed circumstances, what was really necessary was a new vision of the
ocean to replace the longstanding concept of the freedom of theseaswhich
had been valid during the age of maritime traffic. In point of fact, al1the
effortsdeployed in the great workshop of UNCLOS III havebeen directed
towards constructing an imposing edifice representing a régimeof the
oceanlikely to be voted into existenceirrespective of what it may bode for
thefuture. Unable to clingto the aimof true worldharmony, the delegates
havefelt compelled to content themselveswith cobbling together a patch-
work of ideas which are not necessarily harmonious. 1would be the last
person to underestimatethe difficultyof securingacceptance of an entirely
coherent vision, but asthe viewsof some individual nations are bound to
be sacrificed in the end, 1have to Saythat such a sacrificewould only be
worth making for the sake of such a vision.

25. As can be seenfrom the processwhereby the ISNT, the RSNT and

the ICNT weredrafted, the draft convention on the Law of the Seastarted
as simply a compilation of texts separately presented by the three main
comrnittees of UNCLOS III on their own individual responsibility. In
1975,working in complete isolation, not only from one another but also
from the majority of the member States,each chairman had to prepare the
ISNT as a first draft of the series in the few weeks granted to him. Each
chairman simplyborrowed someprovisions fromthe 1958Conventions on
the Law of the Sea,some of which,on the basis of long-term practice, had
been considered established as customary rules without much reconsider-
ation of their merits,orpicked up somecompletely newinstitutions, which
being formally or informally presented to the Sea-bed Committee or
UNCLOS III, put fonvard a political compromise to settle strongly-
opposednational interests which had by that time not received any exten-sivediscussion. Few efforts havebeen made to align thesenotions with the
longstanding rules of customaryinternational law, and a somewhat short-
sighted political compromise is reflected in the so-called "package deal".
This statement of mine is not meant to blame or criticize the persons
engagedinthe preparation of the draft at UNCLOS III, but ismade simply
to indicate the process of the preparation of the negotiating texts. Thus
while neither collaboration among the main cornmittees nor exhaustive
studies by thedelegateshad presided over thecompletion of thefirst draft,
in other words the ISNT, thereafter efforts to closely examine each pro-
vision were sometimes considered as hampering the progress of the Con-

ference, again because of the "package deal" procedure and the consensus
method. The delegates, discouraged from dealing with the various pro-
posals put before them, and, despite their probably feeling some doubts
and dissatisfaction, had to CO-operatefor the sake of building up a new
uniform text. Thus we now have the draft convention on the Law of the
Sea.Whether the result produced by thisgreat laboratory of international
lawwillproveto bereallyworkable issomethingthat willhavetobejudged
inthe future.TheCourt wasnot in aposition, at least whiletheexperiment
was still going on in the laboratory, todepend on a half-finishedproduct,
and did not have to regard a simple glance at the formulated text of the
draft convention as indicative of established or embryonicprinciples and
rules of international law.

26. As stated before, there was at least agreement between the two
Parties that the new (UNCLOS) trends could be applicable in the present
case only to theextent that they had become customaryinternational law.

In this light, the above outline and summingup of the UNCLOS process
should suffice to show that the Court did not have to attach great impor-
tance to theactualprovisions of thedraft convention on the Lawof the Sea,
at least at the stage they have reached at the beginning of 1982.Thus the
Court should have sought enlightenmentfrom UNCLOS III not in those
provisions alone, but much rather in the progress of the discussions
underlying them. Bythe same token, it should have cast the net wider and
based its considerations of trends in the law of the sea over the past few
decades on analtogetherbroader survey.In order to understand thetrends
in the law of the seaover thepast fewdecades,in thecontext of thepresent
case,it is extremely important to realize,for one thing,that the concept of
the continental shelf has fluctuated for the past ten years or so and, for
another, that the introduction of the new concept of the exclusive eco-
nomic zone was calculated to have a great impact on the concept of the
continental shelf. CHAPTER II. THETRADITIONA CLONCEPT OF THE CONTINENTA SLHELF

SectionI. Early Claims to the Continental Shelf and
Scholarly Views Thereon

1.Pre-historyof the claims to the continentalshelf

27. To deal with the delimitation of the continental shelfin early 1982,
when the status of the 1981draft convention on the Law of the Seais not
yet certain and it cannot, therefore, be regarded as a sure guide, it is
essential to reflectmon how the conceDt of the continental shelf has
emergedand becomeestablished in international lawand to plot the curve
of itsdevelopment. The term "continental shelf" wasnot unknown evento
lawyers before the Second World War. In the late 1930s,learning that a
foreign fleet might be sent to the Eastern Bering Sea for the scientific
investigation of Salmon, the fishing industry on the Pacific coast of the
United States successfullysought to have Bills introduced into Congress
for the extension of the territorial seas, with a view chiefly towards
monopolizing fishing sites. Accordingly a Bill passed by the Senate on
5 May 1938provided that United Statesjurisdiction was to extend to al1
thewatersand submerged land adjacent to the coast ofAlaska lyingwithin
the limits of the continental shelf having a depth of water of 100fathoms

(approximately 200 metres) (US, S.3744,75th Congress,3rd Sess.(1938) ;
83CongressionalRecords,IV,4260,6423). No action was taken on this Bill
by the House of Representativesprior to adjournment. Further Billswere
introduced in both Houses of Congress in order to extendjurisdiction, not
so much in terms of thecontinental shelf,but rather by reference to certain
geographicalfeatures, such as a depth of water of 100 or 200 fathoms.
Nothing came of those Bills either.

28. However,the régimeofthecontinental shelfhad neverconstituted a
part of international law prior to 1945.In this respect,mention should be
made of the arbitral award given by Lord Asquith of Bishopstone in 1951
in a dispute between a British oil company and the Ruler of Abu Dhabi
(International Law Reports, 1951,pp. 144ff.). The question at issue was
whether the British company whch had been granted an exclusiveoilcon-
cession covering the territory of Abu Dhabi should simultaneously have
beengranted anexclusiveoilconcessioncoveringthecontinental shelf.The
award rejected the contention of the British company that the concept of

the continental shelf as territory of the coastal State was an accepted fact,
particularly in 1939,when the companyhad been granted the concession,
and that Abu Dhabi therefore could not grant it to others. This award
clearlyindicated the fallacy of consideringthecontinental shelf asbelong-
ing ipsojure to the coastal State. It was thus afortiori impossible to regard
the continental shelf as being ipso facto subject to the jurisdiction of
the coastal State within the ambit of any positive international law. 174 CONTINENTAL SHELF (DISS. OP. ODA)

29. The methods for extracting oil advanced so far in the period after
the Second World War that it became possible to build artificialinstalla-

tions out tosea. The possibility of exploiting resources, especially petro-
leum, contained in the continental shelf attracted the attention of the
world. A number of Statesmade claims to their offshoresubmerged areas
with a viewto securing the resources contained therein. The United States
proceeded by claiming the submarine areas described in the well-known
Truman Proclamation of 1945 :

"1,Harry S.Truman, President of the United States of America do
herebyproclaimthe followingpolicy of the United States of America
with respect to the natural resources of the subsoiland sea bed of the
continental shelf.

Having concern for the urgency of conserving and prudently uti-
lizing its natural resources, the Government of the United States
regards the natural resources of the subsoil and sea bed of the con-
tinental shelfbeneath the high seasbut contiguous to thecoasts of the
United States as appertaining to the United States subject to its
jurisdiction and control .. ."
It was obviously the aim of the United States to prevent other Statesfrom
drawing near the United States coast for the purpose of exploiting sub-
marine mineral resources. It was at the same time indicated by the gov-
ernment authorities that, withinthe meaning of theProclamation,theterm
"continental shelf" applied to areas where the sea-bed lay at depths not

exceeding 100fathoms.ManyothercoastalStates followedthisprecedent,
probably because they would have much to gain and nothing to lose by
claiming the resources off their coasts. Some States asserted that the
continental shelf formed part of their national territory ;others claimed a
limitedjurisdiction over the shelf for the purposes of exploitation of its
resources ;while stillothers claimed ownership of the resources contained
in the continental shelf. Al1 these claimants, however, in one way or
another, asserted an exclusive right to certain limited areas of the subsoil
beneath the high seas.The areas definedas being subject to the control of
their respective coastal States were sometimes measured in terms of dis-
tance from the coast. However,the 100-fathomisobath, asemployed inthe
United States claim, or the 200-metre isobath became commonly under-
stood as being the limit of the continental shelf.

2. ScholarIyviewson the continentalshelf doctrinepriorto the 1958 United
Nations Conference onthe Law of the Sea

30. While the concept of the continental shelf was quite new to inter-
national law in the post-war period, there were many arguments about
it among scholars until the Convention on the Continental Shelf was
adopted by the United Nations Conference on the Law of the Seain 1958.
These arguments may have been overtaken by events, but awareness of
them enhances understanding of thebasiccharacter of theconcept. Views on the status of submarine areas varied greatly from scholar to scholar.
Some simply took the concept of the continental shelf for granted, while
others used borrowed ideas and views. Perha~s because of their lack of
confidence in formulating a cohesivedoctrine, many werecontent simply
to list the various views on the subject. Hence it was not easy in the
post-war period to glean from any scholar any solidly grounded views
which could properly be considered as valid support for a claim to the
continental shelf. This difficulty was aggravated by the failure of some
publicists to make sufficiently clear distinction between lex lata and lex
ferenda.
31. As often pointed out, there were certain precedents for the exploi-
tation of submarine areas, and some scholars discussed the status of the

latter in this connection. During the last century a coal mine whch
extended far out to sea was excavated off the Coast of Cornwall. The
decision of SirJohn Patteson, arbitrator, in 1856was that the right to own
al1mines and minerals lying under the high seas was vested in the Crown
and, to give effect to the recommendation of the arbitrator, the Cornwall
Submarine Mines Act was enacted in 1858 (21 & 22 Vic., Chap. 109,
p. 624). As another example, the use of the subsoil beneath the sea had
attracted a great deal of attention since the project of building a tunnel
between England and France was first mooted in the 1870s.No question
wasraised asto the right of these twocountries to build a tunnel under the
high seas. These two examples indicate that there was nothing in interna-
tional law prohibiting the utilization of the subsoil for the purposes of the
exploitation of resources or communication.

Inthese casesthe legal status of the submarinearea wasnever discussed
except in relation to their actual use that is, there was no examination of
the concept in the abstract. No claim to anything more than a tunnel or a
mine had ever been asserted in relation to submerged areas. It was well
understood that thejurisdiction of thecoastalStatecould be extended into
the tunnel or the mine, though only solongas they might exist, but that it
would not extend to any of the submarine areas as a whole. It should be

noted that the principle of the occupation of submarine areas as terra
nullius was taken to be applicable only to a coal mine or a tunnel.

32. Oppenheim-Lauterpacht held that the subsoil of the sea could be
occupied only by the construction of a tunnel extendingfrom the territory
of the coastal State (International Law, Vol. 1, 8th ed., 1955, p. 630).
The views maintained by Colombos are expressed in his statement that

"[ilt would ...be unreasonable to withhold recognition of the right of
a littoral State to drive mines or build tunnels in the subsoil, even
when they extend considerablybeyond the three-milelimit of terri-
torial waters, providedthat they do not affect or endanger the surface
of the sea" (InternationalLaw of the Sea, 4th ed., 1959,p. 62). 176 CONTINENTAL SHELF (DISS. OP. ODA)

H.A. Smithunderstands theprinciple of occupation to mean thebuilding
of a tunnel or the diggingof acoal mine (TheLaw of theSea, 3rded., 1959,
p. 82).This viewwas widely held by scholars (such as Kelsen and Gidel)
who concluded that submarine areas were terranullius.A fair inferenceto
be drawnfrom these viewswas that there wasno principle of international
law to prevent the driving of a tunnel or a mine through submarine areas,
and that jurisdiction thereover would be vested exclusively in the exca-
vatingState. Those publicists did not seemto haveconsideredtheprinciple

of occupation or control of submarine areas in general,and it is open to
doubt whether their description of submarine areas as terra nulliusever
really reflected the true state of affairs. In any case, explanation of the use
of submarine areas in terms of occupation of terra nulliusappears both
superfluous and misleading. The doctrine of occupation in international
lawhad generallybeen invoked solelyfor the exerciseof Statejurisdiction,
quite independently of simple use of the area. The fact that submarine
areascould beutilized for transportation by means of tunnelsand explored
for exploitation by means of mines should not have led to the conclusion
that the entire submarineareacould be possessed bya State in terms of the
occupation of terra nullius.If the areas were indeed terra nullius,it might
have been maintained that submarine areas in general would be possessed
by any State, by virtue of contiguity or geographicalidentity, whenever a
tunnel or acoal mine wasconstructed. But, sofar asweknow, fewscholars
consideredthe territoriality of submarine areas ingeneral.Hence it can be

concluded that submarine areas were never viewed as an area, like a
landmass, that could be acquired by a State. These scholars who presup-
posed that the submarine areas were terra nullius seemed to adopt an
incorrect approach to the problem.

33. The claim to the continental shelf initiated by the United Statesin
1945was different from certain of the precedents mentioned above, and
was quite unique under international lawin the way that not the useof the
specific part of the submarine regions, but the exercise of exclusivejuris-
diction overvast areas of the high seas,wasclaimedby thecoastalState for
the purpose of exploiting the minera1 resources in the areas beneath
them.

34. Realizing that the doctrine of the continental shelf required theo-
reticalunderpinning in order to enable thecoastal State to reserve to itself
exclusive jurisdiction over the exploitation of submarine minera1 re-
sources, somescholarsmaintained that thecontinental shelfbelonged ipso
jure tothe coastalState.Thisidea of thecontinental shelf asbeing ipsojure
subject to thejurisdiction of thecoastalStatehad its rootsinthe geological
unity or geographicalcontiguity of the continental shelf in relation to the
Coast.Those specialists who favoured ths idea, however, werenot always
consistent, since they had to attach some legal significance to unilateral
declaratory claims to the continental shelf. First, according to one view, the submarine shelves were appropriated
by a unilateral proclamation. But, if effectivecontrol was required for the
acquisition of a terra nullius, the continental shelf could not have been
possessed by any State, giventhe then state of development of technology.
Accordingly the concept of notional occupation was introduced. A dif-
ferent viewwasalsosuggested,to the effectthat, whilethecontinental shelf
was not appropriated by an individualproclamation, customary law had
evolvedfromthegreatnumber ofproclamationsconcerningthe shelf.This
doctrine emphasized that, since no objection had been lodged by other
States to dispute such claims, they had been tacitly accepted, effective
control being dispensed with as a pre-requisite to effectiveappropriation.
Some scholars were of the opinion that the doctrine of the continental
shelf,whilenot yet expressiveof anorm ofgeneral customary law,couldbe
considered asembodying anorm ofgeneralcustomaryinternational lawin
fieri, instatu nascendi.Without reference to customaryinternational law,a
similar conclusion was reached by some who maintained that the compe-
tenceof thecoastal Stateto regulate theexploitation ofnatural resourcesin

theoffshore submerged lands wasnow one of the generalprinciples of law
recognized by civilized nations, and therefore a rule of existing interna-
tional law.Thesedoctrinespresupposed atheory ofcontinental shelfrights
based on thecontiguity or continuity of thearea with the coast, which was,
infact, obviously something new tointernational law. Secondly,there was
also agroup of scholars who were reluctant to admit that the continental
shelf had so far been subject to the control and regulation of the coastal
State.While not denyingthepossibilitythat thecontinental shelfmight be
susceptible to occupation, they did not believe that current attempts at
control were sufficient to meet international standardsfor the acquisition
of the space. Al1 of those who relied either upon the significance of
proclamations or upon effective occupation seemed to depend, perhaps
subconsciously, on a premise that the space contained within the conti-
nental shelf must be conceived of as terra nulliusin the existinginterna-
tional legalorder. The continental shelf wasanalogized to a dry landmass
which could be the object of national possession. This premise, by remov-
ing the submarine areas from the sphere of lawpertaining to the high seas,
implied that there was apoint in time at whichthecontinental shelfceased
to be terra nulliusand became national territory. A number of publicists
had not the slightest doubt of the validity of their own assumption of the
analogy of submarine areas to the landmass.

35. There was,further, adifferent scholarlyviewwhichmaintained that
the submarine areas had always been tacitlyregarded as an international
realm which could never be possessed by any State. According to it, the
submarine areas, like the superjacent waters, were not terra nullius,and
there was no reason for subjectingthe two domains to radicallydifferent
régimes.Theoretically,just as each State had been free to catch fish, so it
had alwaysbeen free to utzlizethe resources containedin thesubsoil under
the high seas, either by "driving out" from the coast under itsjurisdiction, 178 CONTINENTAL SHELF (DISS.OP. ODA)

or by installations embedded in the floor of the sea. But no State could
incorporate submarine areas beneath the hi& seas into its national terri-
tory. It necessarilyfollowed that anydoctrine of acquisition or appropria-

tion was a radicalbreak with the traditional development of international
law.It wasthus suggestedthat by introducingthe régimeofthecontinental
shelf in the post-war period the attempt was being made to effect a
revolutionarychangeintheprinciple of thefreedom of thehi& seas,which
previously had prevented any Statefrom exercisingjurisdiction over that
area.
36. 1presumethat one of thecharacteristics of the legaldoctrine on the
continental shelf advocated by a number of scholars after the Second
World War was that the claim to exclusivecontrol and jurisdiction of the
coastal State over the submarine areas was substituted for the demand for
useof thesubmarine resources.The doctrine of thecontinental shelf - that
is, the claim to exclusive control- was restricted by some to the simple

legalization of national exploitation of the shelf's minera1resources.While
any doctrine which would make it impossible to utilize the natural
resources would certainly be undesirable, it should be noted that the
exploitation of submarine areas beneath the high seas had not been pro-
hibited under international law. The scholars in question simply over-
looked thefact that a régimeof thecontinental shelfwould not necessarily
be required for the actual exploitation of submarine areas. Secondly,most
scholars were not fully alert to the fact that exploitation of submarine
resources being conducted in the high seas came under the head of useof
the sea and, whilefailing to deal with such exploitationinconnection with
the régimeof the high seas, they tended to discuss simply the status of the
sea-bed or the subsoilfor this exploitation. Yet if theresourcesbeneath the
high seas had created any difficultiesininternational law, this would have

been simplyfor the reason that the mode of utilization might sometimes
hinder other uses of the seas, such as navigation or fishing.

Section II. Basic Conceptof the ContinentalShelf in the
1958 Conventionon the Continental Shelf

1. Draft preparedby the International Law Commission
37. While the régimeof the continental shelf as lex lata had been
discussed by many scholars, primarily from the theoreticalpoint of view,

theUnited Nations International Law Commission endeavoured to estab-
lish a lex ferenda for the monopolistic exploitation by coastal States of
offshoresubmarine resources. Since 1950,the question of the continental
shelf had been treated by the Commission as one of the most important
parts of the régimeof the high seas. The received concept underlying the
régimeof thecontinental shelfhad gonelargelyunchallengedin thecourse
of seven years' debate by the Commission. The Commission never ques-tioned the advisability of endorsing itas a basis of positive lexferenda. On
the other hand, the views of the Commission on the outer limit of the
continental shelffluctuated continually throughout this seven-yearperiod,
and no firm decision could be taken on this point.

38. At its 1950 session, the International Law Commission took the
view that a coastal State could exercise control and jurisdiction over the
sea-bed and subsoil of the submarinearea off its Coastin order to explore
and exploit the natural resourcesexistingthere. It held that thecontinental

shelfwasnot tobe considered aseither resnulliusorrescommunis,andthat
the right of a coastal State was independent of the concept of occupa-
tion.
39. The fundamental principle contained inthe 1951draftdid not differ
in nature from what had been discussed in 1950,and was stated as fol-
lows :

The continental shelf is subject to the exerciseby thecoastal State
of control andjurisdiction for the purpose of exploringit and exploit-
ing its natural resources." (International Law Commission Yearbook,
1951, Vol.II, p. 141.)

Thus the exerciseof control and jurisdiction for the purpose of exploring
the continental shelf and exploiting its natural resources was held to fa11
within the competence of each coastal State. The Commission, however,

remained consistent in excluding the treatment of submarine areas as res
nullius,hence in defining the right of the coastal State over thecontinental
shelfwithout reference to thenotion of occupation or anyforma1assertion
by the sovereignState. It further rejected the proposition that anynumber
of proclamations over the previous decade would have created new cus-
tomaq law. It took the position that

"[ilt is sufficient to Saythat the principal of the continental shelf is
based upon general principles of law which serve the present-day
needs of the international community" (ibid., p. 142).

In the 1951draft the continental shelf was defined as covering submarine
areas "where the depth of the superjacent waters admits of the exploitation
of natural resources of the sea-bed and subsoil". The Commission con-
sidered that "technical developments in the near future might make it
possible to exploit resources of the sea-bed at a depth of over 200metres",
and, moreover, that

"the continental shelf might well include submarine areas lying at a
depth of over 200metres but capable of being exploited by means of installations erected in neighbouring areas where the depth does not
exceed this limit" (International Law Commission Yearbook, 1951,
Vol. II, p. 141).

40. In its 1953 draft, however, the International Law Commission,
mindful of the need for clear definition of the outer limit of thecontinental
shelf, adopted a depth of 200 metres as the sole criterion, taking the view
that "the text previously adopted does not satisfy the requirement of
certaintyand ... is calculated to giverise to disputes" (International Law
Commission Yearbook, 1953,p. 213).For the rest, the 1353draft followed

the basic idea adopted in 1951,except that the right of control and juris-
diction was replaced by "sovereign rights", and Article 2 was accordingly
frarned in the following terms :
"The coastal State exercises over the continental shelf sovereign
rights for the purpose of exploring and exploiting its natural re-
sources." (Ibid., Vol. II, p. 212.)

41. In its 1956final draft the Commission reaffirmed thisbasicconcept
of sovereign rights for the purpose of exploring the continental shelf and
exploiting its natural resources, and retained the last-mentioned position,
in identical terms, as Article 68 (InternationalLaw Commission Yearbook,
1956,Vol. II, p. 264).It was understood that the rights conferred upon the
coastal State covered al1 rights necessary for and connected with the
exploration and exploitation of the natural resources of the continental
shelf and that such rights included jurisdiction in connection with the
prevention and punishment of violations of the law. The rights of the

coastal State were to be exclusivein the sense that, if it did not exploit the
continental shelf,it was onlywith itsconsent that anyone elsemight do so.
The following views expressed by the Commission in 1956 are worth
quoting in order properly to understand the fundamental concept of the
continental shelf :
"(7) The rights of thecoastal State overthecontinental shelfdonot
depend on occupation, effective or notional, or on any express pro-
clamation.
(8) The Commission does not deemit necessary to expatiate on the

question of the natureand legalbasis of the sovereignrights attributed
to the coastal State. The considerations relevant to this matter cannot
be reduced to asinglefactor. Inparticular, it isnot possible tobasethe
sovereignrights of thecoastal State exclusivelyon recent practice, for
there isnoquestion in thepresent caseofgivingtheauthority of alegal
rule to a unilateral practice resting solely upon the will of the States
concerned. However, that practice itself is considered by the Com-
mission to be supported by considerations of law and of fact. In
particular, once the seabed and the subsoil have become an object of
active interest to coastal States with a view to the exploration and
exploitation of their resources, they cannot be considered as res nul- lius, i.e., capable of being appropriated by the first occupier. It is
natural that coastal Statesshould resist any such solution. Moreover,
in most cases the effective exploitation of natural resources must
presupposethe existenceof installationson the territory of thecoastal
State.Neither isitpossible to disregardthe geographicalphenomenon

whatever the term - propinquity,contiguity, geographical continuity,
appurtenance or identity - used to define the relationship between
the submarine areas in question and the adjacent non-submerged
land. Al1these considerations of general utility provide a sufficient
basis for the principle of the sovereign rights of the coastal State as
now formulated by the Commission." (InternationalLaw Commission
Yearbook, 1956, Vol. II, p. 298.)

With regard to the outer limit of the continental shelf, however, the
Commission'sdraft was again revisedin 1956so as to covernot only areas
within the 200-metre isobath but also areas outside it, provided that
exploitation of the natural resources there remained feasible :

[Tlhe term 'continental shelf' is usedas referring to the seabedand
subsoil of the submarine areas adjacent to the Coastbut outside the
area of theterritorial sea,toa depth of 200metres(approximately 100
fathoms)or, beyond that limit, to where the depth of the supejacent
waters admits of exploitation of the natural resources of the said
areas." (Ibid., p. 264.)

2. Therégimeof thecontinentalshelfadopted inthe 1958Convention on the
ContinentalShelf

42. At the GenevaConference on the Lawof the Seaof 1958,most, but
certainlynot all,Statesentereduponthedeliberationswithout questioning
theglobalconcept of thecontinental shelf,andanyargumentregardingthe
fundamental status of this submerged area wassoon dropped.Whetherthe
right to be vested in the coastal Stateshould be sovereignor exclusivewas
strenuouslydebated. The most important question, however,relatednot to
the forma1description but to the substance of that right. The provision of
the draft of the International Law Commission was taken as it stood in
Article 2, paragraph 1,of the Conventionon the Continental Shelf,so we
again find :

"The coastal State exercises over the continental shelf sovereign
rights for the purpose of exploring it and exploiting its natural
resources." 43. However, a fewnew paragraphs wereadded to this basicconcept of
the continental shelf during the deliberations of the Conference. Para-

graph 3as it now stands wasintroduced at the suggestionof Cuba and was
adopted by 41-7-12 votes at the Fourth Committee ; it had, however,
alreadybeen clearly stated in the 1956commentary on the Commission's
draft. Article 2, paragraph 3, thus now reads as follows :
"The rights of the coastal State over the continental shelf do not
depend on occupation, effective or notional, or on any express pro-
clamation."

Article 2, paragraph 2, States :

"The rightsreferred to in paragraph 1 of this articleare exclusivein
thesensethat if thecoastal State doesnot explorethecontinental shelf
or exploit itsnatural resources, no one may undertake these activities,
or make a claim to the continental shelf,without the express consent
of the coastal State."
Thisparagraph was based on an Argentine proposa1 already adumbrated
in thecommentaryonthe 1956draft and adopted by a 36-6-25vote, and to

a certain extent on a Yugoslav suggestion, adopted by 37-5-24.It might
well be said, however, that the Yugoslav intention was not propèrly
reflected because its proposa1 had been to the effect that "if the coastal
State doesnot exercisetherightsunderparagraph1, .. .no onemayclaim to
its continental shelf without its express agreement" (emphasis added).
Only the latter part of the Yugoslav proposa1 was incorporated by the
Drafting Committee into the text of the Convention. It appears that this
error indrafting wasduetothefactthat intheminds ofmany delegates the
concept of the right of each coastal State over the continental shelf had
become limited to the solenotion of activeexplorationand exploitation of
the shelf'sresources.At anyrate, itissubmitted thatparagraph 2shouldbe
interpreted as meaning that anyone is prevented from exploiting the
resources contained in the continental shelf off the Coast of the State
without the express consent of that State, and that any State is prevented
from claiming title to this continental shelf in terms of prescription or
occupation or for anyother reason, evenin the casewhere thecoastalState

has not undertaken any exploitation of these resources.

44. The 1958Convention on the Continental Shelf paved the way to
control of the continental shelf. There was some doubt whether this Con-
vention had simply codified existing customary rules or promulgated a
new legal norm. However, it had certainlydisposed of various theoretical
controversiesconcerningindividual claims by many States to submarine
areas off their shores.

45. With regard to the outer limit of the continental shelf, France,
Greece, Italy and theUnited States ofAmerica at the 1958Conferencehad
hesitated to accept the provision that the limit of the continental shelf be 183 CONTINENTAL SHELF (DISS.OP.ODA)

measured by such an uncertain criterion as "exploitability". They had
favoured the depth of 200 metres, but a proposa1by France to this effect
(A/CONF.13/C.4/L.7) was rejected. Yugoslavia, the United Kingdom,
India, Canada and the Netherlands had proposed that it might be pref-
erable to specifya depth-line of 550metres, as being nearer to the deepest
edge of the continental shelf and more likely to result in an agreement
which could remain unaltered for a considerable period (A/CONF.13/
C.4/L.12 as amended, L.24/Rev.l, L.29/Rev.l, L.30 as amended, L.32);
their proposals were, however, eitherwithdrawn or rejected. On the other

hand, the proposa1 of the Republic of Korea, simply suggesting the "ex-
ploitability" criterion (A/CONF.13/C.4/L.l I), and that of Panama, sug-
gesting inclusion of the continental slope within the definition of the
continental shelf(A/CONF. 13/C.4/L.4), wereboth alsorejected.Finally,
theoriginal draft prepared by the International Law Commission, with an
additional clause concerning an island (which will be explained later in
para. 149),was adopted, 51-9-10.France, Germany, Italy, Japan and the
Netherlands opposed theoriginal draft. Again, at theplenary meeting, the
French delegate tried to remove the concept of exploitability from the
original text, but in vain. Thus the width of the continental shelf was
provided for as follows :

'ArticleI
. ..the term 'continental shelf'is used as referring (a) to the seabed
and subsoil of the submarine areas adjacent to the Coastbut outside
thearea of the territorial sea, to adepth of 200metres or, beyond that
limit, to where the depth of the superjacent waters admits of the
exploitation of the natural resources of the said areas ; (b)to the
seabedandsubsoil of similarsubmarine areas adjacent to thecoastsof
islands."

46. It must be said that thereference to the "exploitability" concepthad
been so framed as to express the very opposite of the Conference'sinten-

tion, which had clearly been to sanctionextension of the limit of the (legal)
shelf beyond the 200-metre isobath to where the depth of the superjacent
waters ceasedto admit of the exploitation of the natural resources. How-
ever, even on that reading, much ambiguity remained over the interpre-
tation of the criterion of exploitability.There was insufficient realization
of the consequences of the fact that eachcoastal State was free to grant to
anyforeigncountry or foreign nationals the right to exploreitscontinental
shelf or to exploit the natural resources therein contained. Hence coastal
States without sufficiently advanced technology could always encourage
foreigninvestment or technicalassistance with a view to exploration and
exploitation of the resources contained within the continental shelf, their
claim to which, beyond the 200-metre isobath, would thus be ipsofacto
substantiated. Thus understood, the concept of exploitability had to be
continuously reinterpreted in terms of the most advanced standards of 184 CONTINENTAL SHELF (DISS. OP. ODA)

technology in the world. The logical outcome of this is, finally, that the

exploitation of submarine resources beyond even the 200-metre depth
must always be reserved to "the coastal State", which is empowered to
claim any area where the depth of the superjacent waters admits of
exploitation. Implicitly, therefore, al1the submarine areas of the world
were divided among the coastal States by this 1958 Convention on the
Continental Shelf. Solely the problem of delimitation remained. It is
unlikely that such an interpretation was what the delegates at the Con-
ference actuallythought they wereapproving.Generallyspeaking, most of
them seem to have been under an erroneousimpression that thanks to this
exploitability test, exploration and exploitation beyond the 200-metre
isobath would only gradually become permissible in parallal with the
progress of marine technologies.

SectionIII. Developmentof Ideas concerning
Delimitation of the ContinentalSheIf

1. Draft prepared bythe International Law Commission

47. In order to understand the proper method for delimitation of the
continental shelfin the caseof adjacent or opposite States,asprovided for
in the Convention on the Continental Shelf,we have to return to the 1945
Truman Proclamation, which stated :
"In cases where the continental shelf extends to the shores of
another State, or is shared with an adjacent State,theboundary shall
be deterrnined by the United States and the State concerned in
accordance with equitable principles."

"Equitable principles" in relation to delimitation of the continental shelf
of opposite or adjacent States were mentioned in several of the unilateral
declarations subsequently made by States.

48. At its second session, in 1950,the International Law Commission
agreed that boundaries should be established where two or more neigh-

bouring States were interested in the same continental shelf. The draft
prepared in 1951contained the following provision :
'Yrticle 7

Twoor moreStates towhoseterritoriesthe samecontinental shelfis
contiguousshould establishboundaries in the area of the continental
shelf by agreement. Failing agreement, the parties are under the
obligation to have theboundaries fixed by arbitration." (International
Law Commission Yearbook, 1951,Vol. II, p. 143.)

It was also proposed that, if agreement were not reached and a prompt
solution wasneeded,theinterestedStatesshould be under an obligation tosubmit to arbitration ex aequoet bono.The term "arbitration" was used in
the widest sense and included possible recourse to the International Court
of Justice. Meeting objections raised by some governments, Professor
J. P. A. François, Special Rapporteur on this subjectin the International
Law Commission, was inclined to replace arbitration ex aequo et bon0
by the procedure of conciliation,and thus suggested the followingprovi-
sion :
'Yrticle 7

Two or more Statesto whose territories the same continental shelf
is contiguous should establish boundaries in the area of the conti-
nental shelf by agreement.Failing agreement,the parties are under
the obligation to subrnit the dispute to conciliation procedure."
(A/CN.4/60, p. 129.)

49. The Committee of Experts on Certain Technical Questions con-
cerningthe Territorial Seamet in April 19.53in responseto the request by
the SpecialRapporteur. The questionput by the SpecialRapporteur wasas
follows :

"How should the (lateral) boundary line be drawn through the
adjoining territorial sea of two adjacent States? Should this be
done
A. By continuing the land frontier ?

B. Bya perpendicularline on the coast at the intersection of the land
frontier and the coastline ?
C. By a line drawn vertically on the general direction of the coast-
line ?
D. By a median line ? If so, how should this line be drawn ?To what
extent should islands, shallow waters and navigation channels be
accounted for ?" (A/CN.4/6 1/Add. 1, English Annex, p. 6.)

The reply to this question by the Cornmittee of Experts was as follows :
"1. After thoroughly discussing different methods the Cornmittee
decidedthat the(lateral)boundary through the territorial sea if not
already fixed otherwise - should be drawn according to theprinciple
of equidistance from the respective coastlines.

2. In a number of casesthis may not lead to an equitablesolution,
which should be then arrived at by negotiation." (Ibid., pp. 6 f.)

In this connection the Committee of Experts made the following obser-
vations :

"The Committee considered it important to find a formula for
drawing the international boundaries in the territorial waters of States, which could also be used for the delimitation of the respective
continental shelves of two States bordering the same continental
shelf." (Ibid., p. 7.)

In parentheses, the narrative must here be interrupted in order to point out
that the Court, in the present Judgment (see para. 119) seems to have
overlooked the conclusions of this Committee by simply stressing the
questions which that bodyhad had put toitby the SpecialRapporteur of
the International Law Commission.
50. In 1953,theInternational LawCommission, apparently on thebasis
of the recommendations of the Committee of Experts, proposed the for-
mulation of a general rule based on the principle of equidistance, recog-
nizingthat, whilethat principle wasto provide the generalrule, it wouldbe
subject to modification in caseswhere anotherboundary line wasjustified
by special circumstances. The text suggested by the Commission in 1953
for the case of adjacent States was as follows :

'Yrticle 7
1. [The case of opposite States]

2. Where the same continental shelfiscontiguous to the territories
of two adjacent States, the boundary of the continental shelf apper-
taining to such States is, in the absence of agreement between those
States or unless another boundary line isjustified by special circum-
stances, determined by application of the principle of equidistance
from the base lines from which the width of the territorial sea of each
of the two countries is measured." (International Law Commission
Yearbook, 1953,Vol. II, p. 213.)

The commentary by the Commission on this provision reads as fol-
lows :
"[W]hile ... the rule of equidistance is the general rule, it is subject
tomodification in casesin whichanotherboundary lineisjustified by
special circumstances. As in the case of the boundaries of coastal
waters, provision must be made for departures necessitated by any
exceptional configuration of the Coast as well as the presence of
islands or of navigable channels. To that extent the rule adopted
partakes of some elasticity." (Ibid., p. 216.)

51. The International Law Commission further revisedthe text in 1956,
as follows :

'Yrticle 72
1. [The case of opposite States]
2. Where the samecontinental shelfis adjacent to the territories of
two adjacent States, the boundary of the continental shelf shall be
determined by agreementbetween them. In the absenceof agreement, and unlessanotherboundary lineisjustified by specialcircumstances,
the boundary shall be determined by application of the principle of
equidistance from the baselines from whch the breadth of the terri-
torial sea of each of the two countries is measured." (International
Law Commission Yearbook, 1956, Vol.II, p. 264.)

The cornmentary attached to the provision stated :

"As in the case of the boundaries of the territorial sea, provision
must be made for departures necessitated by any exceptional con-
figuration of the Coast,as well as the presence of islands or of navi-
gablechannels.This casemay arisefairly often, so that the rule adop-
ted is fairly elastic." (Ibid., p. 300.)
The International Law Commission also proposed, in Article 73 of the

draft, that anydispute arisingout oftheinterpretation or application ofthe
régimeof the continental shelf should, in principle, be submitted to the
International Court of Justice.

2. Article 6 of the Conventionon the Continental Shelf
52. At the Geneva Conference in 1958,Venezuela could not accepi the
idea that, ifthere wereno agreement, theboundary lineshould, asageneral
rule, be the equidistance line, because the situations whch existed in

different parts of the world were too various tojustify theadoption of any
suchgeneral rule.Accordingly, Venezuelasuggestedthat "the boundary of
the continental shelf ...shall be determined by agreement between them
or by other means recognized in international law" (A/CONF.13/C.4/
L.42). For different reasons, Yugoslavia proposed deletion of the words
"and unless another boundary line isjustified by special circumstances"
fromthe 1956draft (A/CONF. 13/C.4/L.16) because, according toit, that
criterion was vagueand arbitrary and likelyto giverise to misunderstand-
ing and disagreement. The Yugoslav delegate asked whether, and how,
such specialcircumstances wereenumerated in international law,and who
should be charged with interpreting their application. The proposals of
both Venezuela and Yugoslavia were rejected by the Fourth Committee.
The United Kingdom proposed the following provision :

"In the case of adjacent States, the boundary of the submarine

areas . . shall,in the absenceof agreement onanyotherboundary,be
determined by the application of the principles of equidistance from
the nearest points of the baselines from which the breadth of the
territorial sea of each of the two States is measured." (A/CONF.13/
C.4/L.28.)
According to the British delegation -

"[Tlhemedian linewould alwaysprovide thebasisfor delimitation.
If both the States involved weresatisfiedwith theboundary provided
by the median line, no further negotiation would be necessary ; if a divergence from the median line appeared to be indicated by special
circumstances, anotherboundary couldbe establishedby negotiation,
but the median linewould still serveasthestarting point." (UNCLOS
1,Offici Relcord so,l. VI, p. 92.)

After some queries had been raised by France and the Netherlands as to
whether such agreements would be lirnited to cases where there were
special circumstances, the United Kingdom proposa1 was withdrawn in

favour of the Netherlands proposal, in whch the United Kingdomjoined
as CO-sponsor (A/CONF.13/C.4/L.23). This joint proposa1 was in fact
substantiallyidentical with the relevant provision of the 1956draft of the
International Law Commission and was finally adopted by the Fourth
Committee by 29-16-9 votes. Thus Article 6 of the Continental Shelf
Convention came into being.

1. Where the samecontinental shelfis adjacent to the territories of
two or more States whose coasts are opposite to each other, the
boundary of the continental shelf appertaining to such States shallbe
determined by agreementbetween them. In the absence of agreement,
and unlessanotherboundary lineisjustified by specialcircumstances,
the boundary is the median line, every point of which is equidistant
from the nearest points of the baselines from whichthe breadth of the
territorial sea of each State is measured.
2. Where the samecontinental shelfis adjacent to the territories of
two adjacent States, the boundary of the continental shelf shall be
determined by agreement between them. In the absence of agree-
ment, and unless another boundary line is justified by special cir-

cumstances, the boundary shall be determined by application
of the principle of equidistance from the nearest points of the base-
lines from which the breadth of the territorial sea of each State is
measured .. ."
53. Somesuggestionsweremade during the 1958Conference as to what
"special circumstances" would mean in thiscontext.TheUnited Kingdom
explained that -

"Among the specialcircumstances whichmight exist there was,for
example, the presence of a small or large island in the area to be
apportioned ;he suggested that, for the purposes of drawing a boun-
dary, islands should be treated on their merits, very small islands or
Sandcays on a continuous continental shelf and outside the belts of
territorial sea being neglected as base points for measurement and
having only their own appropriate territorial sea. Other types of
special circumstances were the possession by one of the two States
concerned of special minera1exploitation rights or fishery rights, or
the presence of a navigable channel ;in al1such cases, a deviation from the median line would bejustified, but the median line would
still provide the best starting point for negotiations." (UNCLOS 1,
OfficialRecords, Vol. VI, p. 93.)

Although restricted tothe caseofopposite States,there wasalsoaproposa1
by Italy, which read as follows :
"Where in the proximity of coasts whch are opposite to each other

there areislands belongingto the said continuouscontinental shelf,in
the absence of agreement, theboundary is the median line everypoint
of which is equidistant from the low-waterline along the coast of the
said States, unless some other method of drawing the said median
line isjustified by special circumstances." (A/CONF.I3/C.4/L.25/
Rev.1 .)
This Italian proposa1 was rejected by 3-31-18 votes at the Fourth Com-
mittee. No other argument is to be found in the records of the Conference

on what the "special circumstances" could be which might justify a line
other than the equidistance line.

54. With regard to the compulsory settlement by the International
Court of Justice of any dispute concerning the continental shelf, the
Netherlands suggested that the following clause be added :
"In the case ofjudicial proceedings relating to the application of
Article 72, the [International]Court [of Justice] shall have power to

decide ex aequo et bono whether a boundary line other than that
defined in that article is justified by special circumstances." (A/
CONF. 13/C.4/L.62.)
Thisprovision was adopted by the Fourth Committee following a roll-cal1
vote of 33-15-14. Both Tunisia and Libya abstained from voting. At the
plenary meeting, this provision was put to a vote only after the Optional
Protocol of Signature concerning the Compulsory Settlement of Disputes
had been adopted and, though obtaining 38-20-7votes,it wasrejected asit

had failed to achievetherequired majority of two-thirds of the Conference.
Thus, contrary to the original intention of the International Law Com-
mission, the settlement of disputes concerning the delimitation of the
continental shelf did not become subject to compulsory settlement, either
by the International Court of Justice or by any other means, under the
Convention on the Continental Shelf, in that compulsory settlement was
provided for onlyin aseperateinstrument :the Optional Protocol. Infact,
though the Convention on the Continental Shelf came into force on
10June 1964,the Optional Protocol had not yet become effective.190 CONTINENTAL SHELF (DISS. OP. ODA)

55. Thus the Convention on the Continental Shelf suggests the deter-
mination of the boundary of the continental shelf between opposite or

adjacent States by agreement, without providing for any compulsory set-
tlement of disputes. In so doing, it confers on a principle of general law,
concerning the settlement of disputes, priority over any principles or rules
that may be applicable to the particular subject-matter, without saying
what those may be. Thus there is no compelling principle of delimitation
which must be respected by the terms of such agreement as may be
reached. Hence the Convention refrains from mentioning any specific
principle or rule until it comes to the event of failure to agree. But this, in
my view, does not mean that the Conference intended deliberately to
belittle the importance of such principles or rules during the process of
reaching agreement. On the contrary, considering that it must have had
some doctrinal basis for the second sentence of each paragraph of Arti-
cle 6,1 suggestthat the Conference meant to provide guidance both before
aswellas aftertheascertainment of anyfailure to agree(both beingphases

in which there is an "absence of agreement"). The implicit intention of
Article 6 was therefore, 1believe, most probably to the following effect :
whether in the case of agreement or impartial third-party determination,
the principles and rules of international law to be applied should be that,
unless another boundary line is justified by special circumstances, the
boundary in the case of adjacent States should be determined by appli-
cation of the equidistance principle. In other words, the Convention may
be interpreted to mean that it suggested the "equidistance/special-circum-
stances" method as a normal basis of agreement as well as of third-party
determination. Certainly some difficulties still remain in determining
whether another boundary lineisjustified by specialcircumstances or not,
and this too should havebeen a matter for negotiation between theparties
orfor decision by a third Party. This applies with particular force if there
does not exist any established rule as to what is meant by "special cir-

cumstances".

Section IV. Significance of the 1969Judgment of the Court

1. The continentalshelf as a rule of customary international law
56. The argument asto whether the concept ofthe continental shelf was
valid only as between Statesparties to the 1958Convention on the Con-

tinental Shelf,which became effective on 10June 1964,or had been gen-
erally accepted as customary international law, was ended by the Judg-
ment of the Court in 1969,when the Court stated that :
"19. ... [Tlhe rights of the coastal State in respect of the area of

continental shelf that constitutes a natural prolongation of its land
territory into and under the -kt ipsofacto and ab initio,by virtue
of its sovereigntyover theland, and as an extension ofit inan exercise of sovereign rights for the purpose of exploring the seabed and
exploiting its natural resources." (I.C.J. Reports 1969, p. 22.)

The concept of the continental shelf was thus given a firm place in the
framework of customary international law. However, it is extremely
importantto notethat the substance or content of the rightsenjoyedby the
coastal State were not newly fashioned by the 1969Judgment. The Court
qualified the rights of the coastal States, in the samewayasprovided in the
Convention, stating as follows :
"19. ...In short, there ishere an inherent right. In order to exercise
it, no speciallegalprocesshas tobe gonethrough, nor haveany special
legal acts to be performed. Its existence can be declared . .but does
not need to be constituted.Furthermore, the right doesnot depend on

itsbeingexercised.To echothelanguage of the GenevaConvention, it
is 'exclusive'in the sense that if the coastal State does not choose to
explore or exploit the areas of shelf appertaining to it, that is its own
affair, but no one else may do so without its express consent."
(Ibid.)
57. The phrase 'Ipsofacto and ab initio" should not be interpreted as
meaning anythingother than what isexpressedin the 1958Convention. In
spite of this phrase, such a right of the coastal State, not being effective
retroactively, did not exist "ipsofacto andab initio7'priorto the time when
the régimeof the continental shelf found itself in the realm of customary
international law. The Court did not giveany additional interpretation to

the concept of the continental shelf,but simplydeclared the right defined
by the 1958Convention to be one established under customary interna-
tional law without necessarily depending upon the specificprovisions of
that Convention. The concepts of "ipsofacto andab initio" wereemployed
by the Court in 1969simply to strengthen the régimeof the continental
shelf, which had not yet achieved a firm status in international law. The
Court observed :
"100. ...This régimefurnishes an exampleof alegaltheory derived
from a particular source that has secured a general following. As the
Court has recalled in thefirstpart of itsJudgment, it was the Truman
Proclamation of 28 September 1945which was at the origin of the

theory, whose special features reflect that origin. It would therefore
not be in harmony with this history to over-systematize a pragmatic
constmct the developments ofwhichhaveoccurredwithin arelatively
short space of time." (Ibid., p. 53.)
TheCourt stated, as quoted above, the concept that "the continental shelf
.. .constitutesa natural prolongation of its land territory into and under
thesea" and repeated that the "shelf area isthenatural prolongation [ofthe
land domain] intoand under the sea" (para. 39).It alsotalked of "the more
fundamental concept of the continental shelf as being the natural prolon-192 CONTINENTAL SHELF (DISS. OP. ODA)

gation of the land domain" (para. 40),and of "the natural prolongation of
continuation of the land territory or domain, or land sovereignty of the
coastal State, intoand under the highseasviathebed .. ."(para. 43).In the
context of the 1969Judgment the outer limit of the continental shelf was
not at issue, the North Sea being a shallow sea with the exception of the
(irrelevant) Nonvegian Trough, and thus the area beyond the 200-metre

depth of water wasnot dealt with at that time. Just as the 1958Convention
on theContinental Shelfdidnot revealanypreciseidea as tothe outer limit
of thecontinental shelf,sothe 1969Judgmentdid notattempt to define the
outer lirnit, or the full expanse of the continental shelf, by use of the
concept of "natural prolongation". No, that concept was used simply
to justify the appurtenance to the coastal State of the continental shelf
geographically adjacent to it.
58. In this connection 1would further point out that the fact that the
continental shelf was given a firm place in the framework of customary
international lawdidnot necessarilymean that theactual provisions of the
Convention on the Continental Shelf reflected customary international
law.Inits 1969Judgment, the Court,partly for the reason that reservation
may not be allowedfor Articles 1-3of the Convention, held the viewthat -

"63. ...[Tlhesethree articles[Articles 1-31[are]the oneswhich,it is
clear, were then regarded as reflecting, or as crystallizing, received or
at least emergent rules of customary international law relevant to the
continental shelf,amongst them the question of the seaward extent of
the shelf ; the juridical character of the coastal State's entitlement ;
thenature of the rights exercisable ;the kind of natural resources to
which these relate ; and the preservation intact of the legal status as

high seas of the waters over the shelf, and the legal status of the
superjacent air-space." (I.C.J. Reports 1969, p. 39.)

1subrnit that this statement went too far in sayingthat "received orat least
emergent rules of customary international law" had appeared not only
withregard to thejuridical character of the coastal State's entitlement and
the nature of the rights exercisable, but also with regard to some other
aspects. 1shall have occasion below to refer to theproblem regarding the
kind of natural resources to whch these rights relate.

2. Meaning of Article 6 of the Convention on the Continental Shelf

59. The Court stated in its 1969Judgment that Article 6 of the Con-
vention on theContinental Shelf,whichprovides for the application of the
principle of equidistance in the case of another boundary not being jus-
tified by special circumstances, did not embody or crystallize any pre-

existingemergent rule of customary lawand could not bebindingupon the
States which were not parties to the Convention (ibid., p. 41, para. 69).
The Court stated as follows : "55. ... [I]tisclear that at no timewasthenotion of equidistanceas
an inherent necessity of continental shelf doctrine entertained. Quite
a different outlook was indeed manifested from the start in current
legal thinking." (I.C.J. Reports 1969, p. 35.)

It was further of the view that -
"58. ... But in fact, whereas a median line divides equally between
the two opposite countries areas that can be regarded as being the
natural prolongation of the territory of each of them, a lateral equi-

distancelineoften leavesto one of the Statesconcerned areas that are
a natural prolongation of the territory of the other." (Ibid., p. 37.)

Minimizingthe meaning of theprinciple of equidistanceasprovided for in
Article 6 of the Convention, the Court seemed to find significance in the
requirement of agreement between theparties and in equitableprinciples,
both of which are also provided for in Article 6 of the Convention. The
Court stated :

"55. ... It was, and it really remained to the end, governed by two
beliefs ;- namely, first,that no one singlemethod ofdelimitation was
likelyto provesatisfactoryin al1circumstances,and that delimitation
should, therefore, be carried out by agreement (or by reference to
arbitration) ;and secondly, that it should be effected on equitable
principles. It was in pursuance of the first of these beliefs that in the
draft that emerged as Article 6 of the Geneva Convention, the [In-
ternational Law] Commission gavepriority to delimitation by agree-
ment, - and in pursuance of the second that it introduced the excep-
tion in favour of 'special circumstances'.Yet the record shows that,
even with these &tigations, doubts persisted, particularly as to
whether the equidistance principle would in al1 cases prove equi-
table." (Ibid., pp. 35 f.)

"72. ...In thefirst place, Article 6issoframedas to put second the
obligation to make useof theequidistancemethod, causingit to come
after a primaryobligationto effect delimitation by agreement. Sucha
primary obligationconstitutes an unusual preface to what is claimed
to bea potentialgeneral rule oflaw.~ithout attempting to enterinto,
still lesspronounce upon any question of jus cogens,it is well under-
stoodthat,inpractice, rulesofinternational lawcan,byagreement, be
derogatedfrom in particular cases,or asbetween particularparties, -
but this isnot normally the subject of any expressprovision, as it isin
Article 6 of the GenevaConvention. Secondly the part played by the
notion of special circumstances relative to the principle of equidis-
tance as embodiedin Article 6, and the very considerable,still unre-
solvedcontroversies as to the exact meaning and scope of thisnotion,
must raise further doubts as to the potentiallynorm-creating charac-
ter of the rule." (Ibid., p. 42.)194 CONTINENTAL SHELF (DISS.OP.ODA)

"85. ...It emergesfrom thehistory of the development of the legal
régimeof the continental shelf, .. that the essentialreason why the
equidistancemethod is not to be regarded as a rule of law is that, if it
were to be compulsorilyapplied in al1situations, this would not be
consonant with certain basic legal notions which, ...have from the
beginning reflected the opiniojuris in the matter of delimitation ;
those principles being that delimitation must be the object of agree-
ment between the Statesconcerned,and that such agreement must be
arrived at in accordance with equitable principles." (Z.C. Reports
1969, p. 46.)

60. According to my understanding, the ostensiblesolution of suggest-
ing that, since there is no obligatory rule applicable in al1 cases, the
delimitation is to be effected by agreement, is no solution at all. As 1have
pointed out above (para. 55)in my analysis of Article 6 of the Convention
on the Continental Shelf, the rule calling for delimitation by agreement
remains simply a rule concerningprocedure and cannot constitute a prin-
ciple or rule of delimitation. Neither is there anything specific to delimi-
tation in the requirement to reach such agreement in accordance with
equitable principles, while the declaration that use of the equidistance
method must be denied the status of a rule of law on account of some a
priori incompatibility with this requirement is a dictum that could only be
justified if it had been proved that the line reflecting equitable principles

couldnot be, or couldonly by coincidencebe, an equidistanceline. Suffice
it to Saythat a rule may be a rule, even a paramount rule, and yet not have
to be "compulsorily applied in al1situations".
61. The Court in 1969found that the equidistanceprinciple could not
be a rule of law, yet it could not suggest any alternative. It stated:

"83. ... [AISbetween States faced with an issue concerning the
lateral delimitation of adjacentcontinental shelves,there are stillrules
and principles oflawtobe applied ;andinthepresentcase it isnot the
fact either thatrules are lacking, or that the situation is one for the
unfettered appreciation of theParties. Equally, it isnot the casethat if
the equidistance principle is not a rule of law, there has to be as an
alternative some other single equivalent rule." (Ibid p. 46.)
It held in theoperativeparagraph of theJudgmentthat there was "no other
single method of delimitation, the use of which is in al1circumstances
obligatory" (para. 101). In place of suggesting a method, it provided a

definition whereby theappurtenance of a givensea-bedarea toa particular
State could be ascertained orrecognized :theareainquestion had tobe the
"natural prolongation" of that State's land territory. Whatever method
could be devised for applying that definition might thus be an aid to
delimitation, but it couldhardly be described as a method of delimitation.
This idea of natural prolongation, which was to play a role in the de-
velopment of the legal régimeof the continental shelf, was embodied by
the Court in the following requirement : "85 (c) . ..[Tlhecontinental shelf of any State must be the natural
prolongation of its land territory and must not encroach upon what is
the natural prolongation of the territory of another State." (I.C.J.
Reports 1969, p. 47.)

In the operative paragraph of the Judgment the Court further stated :

"101. ...[Dlelimitation istobe effected ...in suchawayastoleave
as much as possible to each Party al1those parts of the continental
shelf that constitute a natural prolongation of its land territory into
and under the sea,without encroachment on the natural prolongation
of the land territory of the other." (Ibid., p. 53.)
1find, however,that theCourt in 1969didnot makeclearwhat it meant by
"natural prolongation", despite the enurneration of factors in para-

graph 101of theJudgment. One sensesthat, once this concept had served
the purpose of casting doubt on the proximity test (which might have
pointed to the use of the equidistance method), the Court felt reluctant to
be more explicit.
62. One may reasonably wonder whether the equidistance method
would have been so decisively rejected in 1969 had it not been for the
peculiar circumstances of the case under consideration. After all, in several
places the Court then acknowledged that there were some advantages in
the equidistance method, for instance when it said :
"22. ...It has never been doubted that the equidistance method of
delimitation isaveryconvenientone, theuseofwhichisindicated in a

considerable number of cases. It constitutes a method capable of
being employed in almost al1circumstances, however singular the
resultsmightsometimes be,and has thevirtue that ifnecessary ...any
cartographer can defacto trace such a boundary on the appropriate
maps and charts, and those traced by competent cartographers will
for al1practical purposes agree.
23. In short, it wouldprobably be true to saythat no other method
of delimitation has the same combination of practical convenience
and certainty of application." (Ibid., p. 23.)

On theother hand, theCourt suggestedthat certain inequities might result
from the application of the equidistance method :

"89. It must next be obsemed that, in certain geographical circum-
stances whichare quite frequently met with, the equidistance method,
despite itsknown advantages,leadsunquestionably to inequity, in the
following sense :

(a) The slightestirregularity in a coastline isautomatically magnified
by the equidistance line as regards the consequences for the
delimitation of the continental shelf.Thus it has been seen in the
case of concave or convex coastlines that if the equidistance
method is employed, then the greater the irregularity and the further from the coastline the area to be delimited, the more
unreasonable are the resultsproduced. Sogreat an exaggeration of
the consequences of a natural geographical feature must be reme-
died or compensated for as far as possible, being of itself creative

of inequity." (I.C.J. Reports 1969, p. 49.)
63. Even the Federal Republic of Germany, whch was opposed to the
application of Article 6 of the Convention as embodying customary rules

of international law,wasnot necessarilyagainst the "equidistance/special
circumstances" method. At the time, 1argued on behalf of that Party as
follows :
"The useof amedian lineisamethod of demarcation which,ifused
in proper geographical context, and if no unsound subsequent con-

clusions are drawn from its existence, can lead to cornmonsense
results andjust and equitable solutions." (I.C.J. Pleadings, NorthSea
ContinentalShelJ;Vol. II, p. 54.)

1 then referred to :

"Article 6, paragraph (2), of the Geneva Convention on the Con-
tinental Shelfwhich, eventhough not binding on the Federal Repub-
lic of Germany as treaty law does represent a facet of international
law by virtue of the high sentiment which it embodies." (Ibid.,
p. 62.)

It has 'already been pointed out that, even in 1953, the Committee of
Experts on certain technical matters regarding the territorial sea held the
viewthat the principle of equidistance might not lead, in certain cases, to
an equitable solution evenforthe delimitation of theterritorial sea,and the
necessity for departure from the general rule of equidistance had repeat-
edlybeen stressed sincethereport of theInternational LawCommissionin
1953.In 1969,submitting that the formalistic application of equidistance
linescould quite easilylead to an odd result, 1expressed myviewon behalf
of the Federal Republic of Germany as follows :

"The use of this method for apportioning thecontinental shelfwas
mentioned as a merepossibility, and could not evenremotelyimply a
mandate for the use of this method in al1situations. The fact that the
equidistance method was designed primarily to delimit territorial
water boundaries is al1the more important when we consider that in
such a case relatively short distances from the coastal front are
involved, and the extreme, and even sometimes bizarre, results
reached by strictlyapplying theequidistance method to apportion the

continental shelf at greater distances from the coastline cannot come
into play." (Ibid., p. 57.) 64. 1certainly share the view of the Court when it stated :

"24. ...The plea that, howeverthismay be, theresults can never be
inequitable, because the equidistance principle is by definition an
equitable principle of delimitation, involves a postulate that clearly
begs the whole question at issue." (I.C.J. Reports 1969, p. 24.)

Yet it is notproPei to Saythat because there are some exceptions there
should not be any rule, unless the exceptions are sonumerousas to negate
theutility or existenceof therule.Theproblem wasthat incertain casesthe
application of the equidistance method might bring about some effect of
distortion contrary to the notion of equity. Thus the Convention on the
Continental Shelf suggested the concept of special circumstances, al-
though what was meant by this was not clearly indicated. The Federal
Republic of Germany suggested the notion of the coastal front or façade,
by the application of which distortion due to application of the equidis-
tance method could have been avoided. The intrinsic merit of an equi-
distanceline wasnot as such rejected in the 1969Judgment. However, the
Court then seems to have fallen short of a proper appreciation of the
equidistancemethod and, inparticular to have ignoredthefullpotential of
theformulacontainedinArticle6 oftheConvention. In pointing this out, 1
wishto makeit clearthat 1am concerned solelywith theunderstanding of
the Convention, and not with the status of its provisions in 1969.

CHAPTER III. SEDENTARY FISHERIE S ND HISTORIC RIGHTS

65. In its Submissions in the Memorial, Tunisia stated as follows :
"2. The delimitation must not, at any point, encroach upon the
area within which Tunisia possesses well-established historic rights,
which is defined laterally on the side towards Libya at line ZV 45O,

and in the direction of the open sea at the 50-metre isobath."
Libya, on the other hand, stated in its submission in the Counter-Me-
morial :

"4. The 'fishing rights' claimedby Tunisiaas'historic rights',even
if and where ascertained, are in any event irrelevant to shelf delimi-
tation in the present case."

As the Judgment properly States, the historic rights remain to be con-
sideredin themselves(para. 104),and whether thesehistoricrights claimed
by Tunisia should be upheld irrespective of the delimitation of the
continental shelf is not a point with which the Court has to deal in the
present case. However, also as properly indicated in the Judgment (para.
103), Tunisia has argued that the longstanding practice of sedentary
fisheries serves to demonstrate that the areas in question belong to theTunisian landmass asits extension under the sea.Tunisia further argued in
theoral proceedings that there is a striking coincidencebetween thestatus
of"... Tunisia's sedentary fisheriesand the way they fit into the theory of
the continental shelf [CR 81/9, p. 471"and claims that this should have an
impact on the delimitation of the continental shelf. Tunisia had also
attempted to prove that
"The delimitation of the continental shelf must logically take
account of the objective situation created from time imrnemorial by

Tunisia's historic rights in the Gulf of Gabes, whch ... constitutes
one of the oldest and most natural manifestations of natural prolon-
gation [CR 81/13, p. 311."
In view of these arguments put forward by Tunisia, 1feel that 1have to
expatiate somewhat on the doctrine concerning sedentary fisheries in
relation to the claim to the continental shelf.

Section I. Past Practice and Doctrines

1. Exploitation of sedentaryspecies

66. In some regions of the world, such as the offshore areas of Tunisia,
Sri Lanka and Australia, the exploitation of resources attached to the
sea-bed, such as pearl shell, sponge, bêche-de-merand oysters, has been
conducted for many years in areas more than three miles from the coast.
No complaint has ever been reported that such sedentary fishing in itself
has contravened any articulated rule of international law. Mostly these
activitieshave been carried on by inhabitants of thecoast, and the coastal
authorities have often exercised certain controls over such activities, but
this fact is of little significance, since these controls were exercised over
their own nationals. Onlywherecoastal authorities attemptto appropriate
these fisheries does a real issue aris- and some such attempts have been
made.
67. The pearl fisheries on the banks of Ceylon, extending to a distance
of 6 to 21 miles from the coast, were subject to the 1911Colonial Act of
Great Britain, whichauthorized the seizureand condemnation of anyboat
found within the limits of the pearl banks, or hovering about them. These
pearl fisheries, however,had been regulated sincetimeimmemorial by the

successiverulers of the island, and this practice had met with the acquies-
cence of other nations. Vattel's statement "Qui doutera que les pêcheries
de perles de Bahreïn et de Ceylan ne puissent légitimement tomber en
propriété ?" (Le droit desgens ouprincipes dela loi naturelle, 1758,Car-
negie'sed.,p. 247)hasbeen quoted with approval by many scholars. While
maintainingthe freedom of the seas,Vattel recognized a specialinterest of
the coastal State regarding the area around the coast. He attempted to
assigncoastal fishing areas to the exclusivecontrol of the coastal State, but
he did not differentiate betweenregular and sedentary fishing. It shouldbe
noted that Vattel's remarksmay serveasjustification for the institution ofjurisdictional areas, but his concern was notparticularly sedentary fishing
underthehighseas.Furthermore, hewasnotinterested in thebedof thehigh
seas.In Vattel's day, no consistent doctrine of the extent of the high seas
had found wide acceptance, and no breadth of the territorial seas had
definitely been fixed. While recognizing that waters adjacent to the coast
and stretchingfora commoniy-agreed-on distance should beconsidered as
part of the national territory, hedid notattempt tojustify theclaimtopearl

fisheries on the basis of the special character of sedentary fishing itself in
terms of the occupation of the sea-bed.

68. In 1871,Sir Travers Twiss responded to an enquiry by the British
Government about dues levied by the Bey of Tunis upon the British
subjectsengaged in fishingsponge and other marine products off the coast
of Tunis :

"There isno objection on principle to the Beyof Tunis asserting an
exclusiveright to the fructus of the banks off the Coast of Tunis to
which Sponges and Polypi attach themselves,although the banks in
question are at agreater distance than three milesfromthe Coast-line,
provided the Bey can shew a prescriptive enjoyment of such fruc-
tus." (Smith, Great Britain and the Law of Nations, Vol. II, 1935,
p. 122.)

At the time Twiss wrote, the concept of a three-mile territorial belt was
gaininggeneral approval. Despite this,Twissdidnot believethat sedentary
fisheries should be treated in the same way as the sea-bed. He considered
sedentary fisheriesbeyond three milesto form aproblem distinct from that
of occupation of the sea-bed.
69. The practice of control by Ceylon and Tunis, as well as its justifi-
cation as advanced by Vattel and Twiss, related solely to the right of the
coastal State vis-à-viscertain specificmarine products, and this right had
been recognized even before the modern concepts of the high seas and the
territorial seas had evolved. This point cannot be too strongly stressed.
From these specialcircumstances scholarsgratuitously derived the idea of
possession of the sea-bed. Discussing the occupation of the sea-bed by
sedentary fisheries, Sir Cecil Hurst, when, in 1923-1924,he wrote his
influential article "Whose 1sthe Bed of the Sea ?" (British Year Book of
International Law,Vol. 4),began with the premise that the exclusiveright
to pearl shell, a product of the subsoil of the sea-bed, is derived from

ownership of thesea-bedwhere the shellbank lies.Hefelt,conversely,that
ownership had been acquired through the exploitation of pearl shell,
spongeand bêche-de-mer.Wecannot but note the circularreasoning in his
argument, even though, until recently, it was widely accepted in Britain.
Oppenheim-Lauterpacht,one of the outstanding British treatises on inter-
national law, states that - "[IJt is not inconsistent with principle, and is more in accord with
practice,to recognise that, asa matteiof law,a State may acquire, for
sedentary fisheries and for other purposes, sovereignty and property
in thesurface of the sea-bed." (InternationalLaw,Vol.I,8th ed., 1955,
p. 628.)

Thisopinion seemsto imply that sovereignty over the sea-bed,and hence,
the right of exclusiveuse, isobtainedthrough positive acts of exploitation.
But if the acts of exploitation are not in themselvesexclusive,it is difficult
to seehowa right of sovereigntycan be derived from them. If, on the other
hand, the use is exclusive,but based upon an assertion of sovereignty, the
argument seems to collapse because of a glaring petitio principii. Smith
mistakenly interpreted the Twiss statement as "recognising the principle

that thebed of the seacan be acquired by prescriptiveoccupation" (Smith,
GreatBritain and the Law of Nations, Vol. II, 1935,p. 121).On another
occasion,he stated his belief that this practice had established that "par-
ticular States may acquire by usage and undisturbed possession an exclu-
sivetitle to the small portions of the seabed in which these products areto
be found" (Smith, The Law and Custom of the Sea, 3rd ed., 1959,p. 81).
Colombosindicated,in hs veryworthwhilework on thelawof the sea,that
the surface of the sea-bed was of a piece with the waters of the open sea
aboveit. He allowed,however,that, with reference to the pearl-shelling off
the Coast of Ceylon, a limited portion of the bed of the open sea was
susceptible of occupation, "[e]xceptionally,on grounds based on historical
andprescriptiveconsiderations" (TheInternationalLaw oftheSea,4thed.,
1959,p. 61). In my view, the concept of possession or occupation of the
sea-bed need nothavebeendrawn into a situation wherethe only issuewas
control by the coastal State over certain exceptional fishing activities,
conducted beyond the territorial limit.

70. 1do not find any compelling logical necessity for consideringthe
exploitation ofresources attached to the sea-bedin terms ofthe legalstatus
of the submergedlands. There is no need to talk about the occupation of
thesea-bed, when theactivities involvedin acquiring the resourcesoccur in

thewaters aboveit. Theonly time "occupation" maycorneinto play iswith
reference to the waters above the resources being exploited whle harvest-
ing is being carried on. The question shouldnot be whether resources are
swimmingin the ocean or attached tothe sea-bed but, rather, what human
activities are required for their exploitation. The so-called sedentary
fisheries pertained rather to thehgh seas than to the sea-bed. 1defend the
view that, since both types of fishing are carried on in the high seas, the
exploitation of resources attached to the sea-bed is not different from
regular fishng, and that there was no reason why the same legal rules
should not have applied to both. Such few reasons as have ever been put
forward to justify either the exclusion of sedentary fisheries from the
generalrégimeof the high seasfisheries,or theirinclusion inarégimeofthe
sea-bed are,inthelastanalysis, unconvincing. In fact,althoughtheir views on occupation of the sea-bedwereperhaps somewhatwide of the mark, the
ultimate goal of Hurst and like-minded scholars was surely to protect
historic rights ;and their primary argument seems to be based on pre-
scription of fishing, with only secondary importance being attached to

occupation of the seabed. Only a rationale similar to that used for exclud-
inghistoric bays from the régimeof the high seasmight havebeen invoked
to create an exception for certain coastal States.

2. Fishing bymeans of embeddedequipment

71. Fishing carried on with permanent equipment has been seldom
discussed, and then only on a rather theoretical basis. Gidel is one of the
fewwhohaveconsidered thisproblem. Hewaswellawareofan inadequate
understanding of sedentary fisheries, in the sense of occupation of the
sea-bed, but he felt that sedentary fishing,comprising, as it did, an excep-
tion to the general rule, was to be permitted only under strict conditions,
while ordinary fishing was an incident of the freedom of the seas. Gidel's
views are clearly shown in this statement :

[Translation ]

"To endeavour to reconcile the lawfulness of sedentary fisheries
outside the limit of the territorial waters with the concept of freedom
of the high seas is ... to persist in the attempt to square the circle.
Sedentaryfisheries and freedom of thehigh seasare notcompatible as
concepts of like rank and value." (Le Droit internationalpublic dela
mer, Vol. 1, 1922,p. 500.)

Gidel did not completely deny the legality of such usage when the part of
the sea in question had been utilized for the purpose of sedentary fishing
for many years past and such usage had not been protested by other
nations. It should be noted that Gidel was not concerned with anv iuris3J
dictional issue,but solelywith the utilization of the seasfor the purpose of
exploiting the resources. The reason for this seems to be that Gidel's
approach to the lawof sedentary fishing was coloured by a preoccupation
with the problems posed by permanent installations or equipment (ibid.,
p. 488).At anyrate,the two-folduseof the term "sedentary fishing" can be
traced back to Gidel and has since been a source of confusion. The
assertion of this great jurist that sedentary fishing conducted from a
permanent installation or with permanent equipment is, in the absence of

long usage, incompatible with freedom of the high seas, has found too-
ready acceptance.
72. For, even when discussing sedentary fishing carried on through
permanent installations or equipment, it was excessive, hence inappro-
priate, to speak in terms of occupation of the sea-bed or of freedom of the
seas.Admittedly, the useof such techniquesmightinterfere to somedegree
with navigation and regular fishing, but the difference between "perma- 202 CONTINENTAL SHELF (DISS.OP. ODA)

nent" equipment and fishing vesselswhich are stationaryfor anylength of
time was not of great significance. Sinceexploitation of resources was the
important factor, and since such exploitationhad been clearly established
as consistent with the freedom of the seas, there was no reason to attach
different legal rules to equally inoffensive methods. The constructionof
permanent installations or equipment might havebeen subject to technical
rules provided by international law. Even so, the prohibition of exploita-

tion of marine resources from special equipment would not have been
justified. Beinglegallypermissible, such activities may wellbe claimed by
coastal States as creative of historic fishing rights in suitable cases.

73. To sum up two types of fishing are included in the category of
"sedentary fishing", but, contrarytothedoctrines of scholarsin ths field,I
do not believe that "sedentary fishing", in either sense, should have been
treated independentlyfrom regular fishing and in terms of the occupation
of the sea-bed. Of course, the peculiar problems arising from different
methods would have required appropriate solutions within the régimeof
thehigh seas.It should have been remembered that sedentaryfishing wasa

type ofhuman activitylongprotected by international law.In the ageprior
to the Truman Proclamation in 1945,there was no ground for suggesting
that sedentary fishing, and means of occupation of thesea-bed,could have
justified the exclusive claims of the coastal State to wider areas to the
offshore submarine regions. If there was any legal doctrine prior to the
1958Conference on the Law of the Seait may have been derived from the
long usage of sedentary fisheries, whch could have given rise only to a
claim to historic rights to those specific fisheries. It might have been
claimed that, because of the long-termpractice of sedentary fishing, his-
toricrights to such fishing - but not to anysubmarine areas - werejusti-
fied.

Section II. Sedentary Fisheries inthe 1958 Conventions
on the Law of the Sea

1. Draft preparedby the International Law Commission

74. Few problems seem to have been discussed by the International
Law Commissioninvolvingmore complicatedconceptsand depending on
lessreliable data than theproblem of sedentary fisheries.In hisfirstreport
on thehigh seas,subrnitted to the Commission,Professor J. P.A. François,
the Special Rapporteur, stated :

"Fisheries may be described as sedentary either by reason of the
specieswith which they are concerned, that is to Sayspeciesattached to the soi1or irregular surfaces of the sea bed, or by reason of the
equiprnent employed, for example stakes driven into the sea bed."
(A/CN.4/17, p. 31.)

Without a doubt François had borrowed this concept from Gidel. He
explainedthat sedentary fishing, as such, wasallowable, although it might
be not in conformity with the principle of freedom of the seas.

75. In his 1951report, François recognized the existence of two ques-
tions :

"(1) May a State regulate sedentary fisheries unilaterally ?

(2) May aState reserve sedentary fisheries for its own subjects ?"
(A/CN.4/42, p. 51 .)

He submitted for approval the following theory
"Sedentary fisheries characterized by the effective and continued
useof apart of the high seaswithout anyforma1and repeated protests
against such use having been made by other States, and particularly
by such States as,by reason of theirgeographicalsituation,could have
put fonvard objections of particular weight, shallbe recognized to be

lawful, provided that the rules governing them allow their use by
fishingcraft irrespective of nationality and are limited to maintaining
order and conservingthe beds in the best interests of the fisheries by
means of duties fairly assessed and collected." (Ibid., p. 62.)

The first part of this proposal, reading "les pêcheriessédentaires ... sont

reconnues commelicites" appearsirrelevant to either of the two questions
concerningthe State's control which François himself had raised, for it is
concerned solelywith the legality of fishingactivities.At its 1951session,
while freely admitting its ignorance on the subject of sedentary fisheries,
the International Law Commission adopted the following text :

"The regulation of sedentary fisheriesmaybe undertaken by aState
in areas ofthe high seascontiguous toits territorialwaters, where such
fisheries have long been maintained and conducted by nationals of
that State,providedthat non-nationals are permitted to participate in
the fishing activities on an equal footing with nationals. Such regu-
lation will, however, not affect the general status of the areas as
high seas." (International Law Commission Yearbook,1951, Vol.II,
p. 143.)204 CONTINENTAL SHELF (DISS. OP. ODA)

The discussion on the subject indicates that the majority of the Commis-
sion thought that sedentary fisheriesshould be regulated independently of
the problems of thecontinental shelf.The Commission took the viewthat
the special position of sedentary fisheriesjustified recognition of special
rights attaching to coastal States whose nationals had been carrying on
fishing there over a long period. The Commission did not discuss the

generalproblem of sedentary fisheries, considering only the specificcase
where coastal Stateshad carried on sedentary fishing off their coasts for a
long period of time. It was somewhat uncertain of its conclusions and
awaited comments by member States before proceeding further. Among
the countries that sent comments on the 1951 draft, Norway stood out
from the rest in that it held the view that so-called sedentary fisheries
should not be treated in a different way from other fisheries. On the basis
of comments by several governments on the provision in the 1951draft,
François, in his 1953report, prepared a provision on sedentary fisheries
that wasnot far in substance from theconcept in the 1951draft, which that
body had adopted (InternationalLaw CommissionYearbook,1953,Vol. II,
p. 49).

76. Only at the 1953session of the Commission, held almost contem-

poraneously with the outbreak of a dispute between Australia and Japan
concerning pearl-shelling off the former's Coast, Mr. (later Sir Hersch)
Lauterpacht and others wereof theopinion that the problem of sedentary
fisheries should be treated together with that of the continental shelf,
where the coastal State is permitted to exercise its sovereign rights to
explore and exploitresources. Asaresult oftheseviews,the separate article
on sedentary fisheriesasproposed in theFrançoisreport wasdropped, and
the topic was included in the 1953draft of the régimeof the continental
shelf. The Commission was of the opinion that, except for cases in which
nationals of other States have existing rights in them, sedentary fisheries
are subject to the sovereignrights of the coastal State overits continental
shelf (ibid., p. 214). In 1951exploitation of resources of the sea fell into
three categories :regular fisheries,sedentary fisheries and the continental
shelf. By 1953there were two classifications :regular fisheries on the one
hand, and thecontinental shelf,including sedentary fisheries, on theother.
"Products of sedentary fisheries" as understood in 1953 meant only

natural resources attached to the bed of the sea. In respect of such seden-
tary fisheriesaspearl-shelling, theInternational Law Commissionin 1956
maintained its earlierposition. In the comrnentary to the 1956draft,it was
stated that :

"the products of 'sedentary' fisheries,in particular, to the extent that

theywerenatural resourcespermanently attached to thebed of the sea
should not be left outside the scope of the régimeadopted [for the
continental shelf]" (International Law Commission Yearbook,1956,
Vol. II, p. 297).205 CONTINENTAL SHELF (DISS.OP.ODA)

It wasindicated that the existing rights of nationals of other Statesshould
be respected. However, apart from the case of acquired rights, the sover-
eignrights of the coastal State over its continental shelf werealso to cover

sedentary fisheries.
77. On the other hand, fishing by means of equipmentembeddedin the
floor of thesea-bed, whichhad been alsocategorized assedentary fisheries,
became subject to specific treatment differentiated from the fishing of
resources sedentary at the sea-bed. In his report to the 1956session, the
Special Rapporteur pointed out that there was one aspect of the question
which the Commission had overlooked, namely fisheries regarded as
sedentary because of the equipment used, e.g., stakes embedded in the
sea-floor. In his opinion, ths class of fisheries was not covered by the
Commission's draft of 1953.He suggested that the original article in the
1951draft be reintroduced for these fisheries. In 1956 the Commission
accepted the Rapporteur's view and decided that it was still necessary to
have-anarticleregulating fisheries involving equipment embedded in the
floor of the sea. The 1956draft provided under the section on fishing, as
follows :

"The regulation of fisheries conducted by means of equipment
embedded in the floor of the sea in areas of the high seas adjacent to
the territorial sea of a State, may be undertaken by that State where
such fisheries have long been maintained and conducted by its
nationals,provided that non-nationals are permitted to participate in
such activities on an equal footing with nationals." (Ibid.,p. 293.)

This provision was not essentially different from the wording of the 1951
draft, although the latter wasconcernedprimarily with sedentary fisheries
in the sense first alluded to above :fishing for objects attached to the
sea-bed. The Commissionconsidered in 1956that :

"Banks where there are fisheriesconducted by means of equipment
embedded in the bed of the sea have been regarded by some coastal
Statesas under theiroccupation and asforming part oftheir territory.
Without wishing to describe these areas as 'occupied'or as constitut-
ing'property' of the coastalState,the Commissionconsidersthat the
specialposition of these areasjustifies specialrights being recognized
as pertaining to coastalStates whosenationals have been carrying on
fishing there over a long period.
The existing rule of customary law by which nationals of other
States are at liberty to engage insuch fishing on the same footing as
the nationals of the coastal State should continue to apply. The
exercise of other kinds of fishing in such areas must not be hindered

except to the extent strictly necessary for the protection of the fish-
eries contemplated by the present article.
The specialrights which thecoastal State mayexercisein suchareas
must be strictly limited to such rights as are essential to achieve the 206 CONTINENTAL SHELF (DISS.OP.ODA)

ends for which they are recognized. The waters covering the seabed
where the fishing grounds are located remain subject tothe régimeof
the high seas." (Ibid.)

78. Thus thefinal draft of 1956on the lawof the seadealt in completely
different wayswith two types of fisheries,both of which may properly be
classified as sedentary fisheries. Article 68 related to the régimeof the
continental shelf and Article 60 was a separate provision for fisheries
conducted by means of equipment embedded in the floor of the sea.

2. Provisionsof the 1958 Conventions onthe Law of the Sea

79. Paralleling the different treatment accorded the two types of sed-
entary fisheries by the International Law Commission, the Geneva Con-
ference in 1958 took up the problem of these fisheries separately. The
fishing of sedentary resources attached to the sea-bed was examined as
part of the problem of thecontinental shelf in theFourth Cornmittee, and
fishing carried on with equipment embedded in the sea-floor was dealt
with in the Third Cornmittee in charge of high sea fisheries.

80. In the Fourth Comrnittee the delegates differed on the kind of
resources to be included in the provision which defined the fundamental
concept of the continental shelf. Many European coastal States insisted
that the list should be limited to mineral resources. TheTapanese delegate
warned that the inclusion of sedentary fisheries in the concept of conti-
nental shelf would lead to a restriction of the freedom of the seas, and he
explained that resources livingin the sea should be coveredby the general
régimeof fishing. A radically opposite view, supported by the delegates
from Burma and the Republic of Korea, maintained that even "bottom-
fish" should beincluded in theresources of thecontinental shelf.Proposals
were submitted respectivelyby Sweden,Greece and the Federal Republic
of Germanv to re~lace the words "natural resources" in the draft of the
International Law Commission with the expression "minera1 resources"
(A/CONF.13/C.4/L.9, 39, 43).This would have had the effect of exclud-
ing sedentary fisheries from the régimeof the continental shelf.

In contrast, the Burmese proposa1 stated that :
"[tlhe term 'natural resources' includes so-called bottom-fish and
other fish which, although living in the sea, occasionally have their
habitat at the bottom of the sea or are bred there" (A/CONF.13/
C.4/L.3).

As a compromise between the two opposing views, a new proposa1 was
jointly submitted by Australia, Ceylon, India, Malaya, Norway and the
United Kingdom : 207 CONTINENTAL SHELF (DISS.OP.ODA)

"The natural resources referred to in these articles consist of
minera1and other non-living resources of the seabed and the subsoil
together with livingorganisms belonging to sedentary species, that is
to Say,organisms which, at theharvestablestage,either are immobile
on or under the seabed or are unable to move except in constant
physical contact with the seabed or the subsoil; but crustacea and
swimming species are not included." (A/CONF. 13/C.4/L.36.)

The sponsoring States intended to draw a line between the minera1 and

sedentary resources on the one hand, and fish resources, including crus-
tacea and bottom-fish on the other. Introducing thisproposal, the Austra-
lian delegateexplained that it was in his view senselessto give the coastal
State sovereign rights over such minera1 resources as the sands of the
sea-bed, but not over the coral, sponges and the living organisms which
nevermovedmore than afewinchesor afewfeet on thefloor of the sea.He
emphasized that that did not apply to crabs and other crustacea, which
could move aconsiderabledistance. The proposals of Sweden etal and the
proposa1 of Burma were al1heavily defeated, while thejoint proposa1 of
the six States was eventuallyadopted by the Committee. At the plenary
meeting, that portion of thejoint proposa1preceding the semi-colon was
separately voted on and approved by the vote of 62-4-2, and became
Article 2,paragraph 4,of the Convention. However, the exclusion relating
to crustacea (of which Mexico had almost secured the deletion in the
Committee) was disapproved by a vote of 14-43-9.

81. In point of fact,l1the provisions except Article 2, paragraph 4, of

the Convention on the Continental Shelf were drafted to be applicable
mainly to the exploitation of the minera1resources of submerged lands,
and not to the exploitation of sedentary species. Although 1 do not now
hesitate to admit, in view of the lack of protest against this particular
provision and of some repeated practices over the past two decades, that
sedentary species will be treated as continental shelf resources, the un-
necessary nature of the consolidation of the exploitation of sedentary
specieswith the régimeof the continental shelf was quite clear at the time
of the adoption of the 1958Convention on the Continental Shelf.

82. The original provision concerning fishing by means of embedded
equipment in the 1956draft of the International Law Commission, which
had nothing to do with the concept of conserving marine resources, was
neverthelessreferred to theThird Committeetogether with theproblem of
theconservation oflivingresources ofthe highseas.Despite the viewofthe
Nonvegian delegate that it did not deal with an urgent issue of interna-tional law suchas should concern theConference, the followingprovision,
promoted in large measure by Ghana, was finally adopted by the Thrd
Committee :

"Article 13
1. The regulation of fishenes conducted by means of equipment
embedded in the floor of the sea in areas of the high seas adjacent to
the territorial sea of a State may be undertaken by that State where
such fisheries have long been maintained and conducted by its
nationals, provided that non-nationals are permitted to participate in
such activities on an equal footing with nationals except in areas
where such fisheries have by long usage been exclusivelyenjoyed by

such nationals. Such regulations will not, however, affect the general
status of the areas as high seas.

2. In this article, the expression 'fisheries conducted by means of
equipment embedded in the floor of the sea' means those fisheries
using gear with supporting members embedded in the sea floor, con-
structedona siteandleft there to operate permanentlyor, ifremoved,
restored each season on the same site."
83. Article 13 as thus drafted does not present a general régimeof
fishing by means of equipment embedded in the floor of the sea. The
coastal State may regulate such fishing only "where such fisheries have

longbeen maintained and conducted by its nationals". The coastal Stateis
allowed, on ths specificcondition, to applyits own national legislation to
foreign fishermen who are engaged in this type of fishing in the areas
concerned. This undoubtedly would not havebeen in conformity with the
traditional principle of freedom of the seas, despite the provision in the
Convention to the effect that "such regulation willnot, however,affect the
general status of the areas as high seas". The only basis 1can seefor such
derogation is the presence of a historic right. This construction is surely
justified by the fact that participation on an equal footing by foreign
nationals in this type of fishing is prevented "where such fisherieshave by
longusagebeen exclusivelyenjoyedby . ..nationals [ofthecoastal State]".
This clause may be interpreted to mean that exclusivefishingis allowable
to the coastal Statein areas where it has long kept out foreign fishermen
who would otherwise have fished there. However, 1believe that no case
exists to which this provision, as thus analysed, would be applicable.

84. After having explained the wayin which the two types of sedentary
fisheries had longbeen interpreted from a legalpoint of view,particularly
since the last century, 1have thus attempted to show that the relevant
provisions of the Geneva Conventions were not necessarily drafted upon

the basis of a correct interpretation of the past practice of such fisheries. Leaving aside the problems involved in the provisions relevant to seden-
tary fisheries in the Geneva Conventions, namely Article 2, paragraph 4,
of the Continental Shelf Convention and Article 13 of the High Seas
Fisheries Convention,the thought was never expressed in any of the 1958

Conventions on the Law of the Sea that these sedentary fisheries ought
properly tohavebeen made aground for claimingsuchareas of thesea-bed
as continental shelf.

SectionIII. SedentaryFisheriesat the Third UnitedNations Conferenceon
the Lawof the Sea
85. The subject of sedentary fisheries is one of those left almost
untouched by delegates in the Sea-bed Committeeand UNCLOS III. In
the ISNT of 1975,the treatment of sedentary fisheries as a resource of the
continental shelfwas taken for granted in terms of Article 2,paragraph 4,

of the Geneva Convention on the Continental Shelf. This provision was
not touched at al1throughout the ISNT, the RSNT and the ICNT and its
revisions, and it now stands as Article 77, paragraph 4, of the 1981draft
conventionon the Law of the Sea.Irrespective of whether this provision is
workable or not, no doubt remains that it cannot constitute a basis for
justifying a title to thecontinental shelfby reason of sedentary fisheries,as
suggested by Tunisia. A provision concerning fishing carried out from
embedded installations, as in Article 13of the High Seas Fisheries Con-
vention, completelydisappeared in the ISNT. No reason for this disap-
pearance is tobe found in the Officia1Recordsof UNCLOS III. Practically
noattention waspaid to thisproblemthroughout UNCLOS III, but it may
well be that, because of the 200-mile exclusiveeconomic zone, sedentary
fisheries in terms of fishingfrompermanently fixed installations,as apart
of high seas fishing, would not have made any sense under the new
régime.

SectionIV. Historic Rights
86. In connection with the Submissions of Tunisia, as referred to in
paragraph 65 above, 1would briefly like to touch upon the question as to

whether the areas west of the ZV 45" line within the 50-metre isobath, as
claimed by Tunisia, would have constituted a part of its historic waters
because of itslongstandingpractice of fisheries,whether sedentary or not.
With regard to historic waters, including historic bays, sufficient expla-
nation is given in paragraph 104of the Judgment. Inheriting almost word
for word theprovisions of the 1958Convention on theTerritorial Seaand
the Contiguous Zone, the draft convention on the Law of the Sea pro-
vides : 'Article10. Bays

6. The foregoing provisions do not apply to so-called 'historic'
bays, or in any case where the system of straight baselines .. .is
applied."
As stated in paragraph 104 of the Judgment, no effort to elaborate on
historic waters, including historic bays, has been made since 1958,yet in

my viewthe question whether or not the Gulf of Gabes may be claimed by
~unisia as historic waters or historic bays because of its longstanding
sedentary fisheries is not relevant to the present case. It also seems ne-
cessaryto point outthat theconcept ofhistoricwatersmay be claimedonly
wherestrict adherence to the geographical conditions required forinternal
waters (such as bays, straight baselines) might lead to a somewhat in-
equitable result because of the longstanding exercise of powers by the
coastal State concerned. The area claimed by Tunisia, extending to off-
shore areas Westof the ZV 45" line not framed by anypart of the Tunisian
Coast, apart from the Gulf of Gabes, does not meet the geographical
conditions for internal waters.

87. What, however, the Court fails to recognize is the fact that at the
1958Conference the question of historic title was taken up in connection
with the delirnitation of the territorial sea. In the draft prepared by the
International Law Commission in 1956,at least in the provision concern-
ing the delimitation of the territorial waters between two adjacent States,
there was no reference to historic titles. In the course of the 1958 Con-
ference, Norway suggested a provision concerning the median line for the

delimitation of the territorial shelf between adjacent States :

"shall not apply, however,where one of the States concerned through
prescriptive usage has acquired the right to delimit its territorial seain
a way which is at variance with the provision" (A/CONF.l3/C. 1 /
L.97).

The words "through prescriptive usage" were replaced by the words "by
reason of historic title". The Norwegianproposa1wasadopted by theFirst
Committee, and thus Article 12of the 1958Convention on theTerritorial
Sea and the Contiguous Zone provides as follows :

"1. Where the coasts of two Statesareopposite or adjacent to each
other, neither of the two States is entitled, failing agreement between
them to the contrary, to extend its territorial sea beyond the median
lineeverypoint of which isequidistantfrom the nearest points on the
baselines from which the breadth of the territorial seasof each of the
two States is measured. The provisions of this paragraph shall not
apply, however, where it is necessary by reason of historic title or 211 CONTINENTAL SHELF (DISS.OP.ODA)

other special circumstances to delimit the territorial seas of the two
States in a way which is at variance with this provision."

This has alsobeen inherited, almost word for word, as a provision of the

1981 draft convention on the Law of the Sea :
'IArticle15. Delimitation of the TerritorialSea Between
States with OppositeorAdjacent Coasts

Where the coasts of two States are opposite or adjacent to each
other, neither of the two States is entitled, failing agreement between
them to the contrary, to extend its territorial sea beyond the median
line everypoint of which isequidistant from thenearestpoints on the
baselines from which the breadth of the territorialasof each of the
two Statesismeasured. The aboveprovision does not apply, however,
where it is necessary by reason of historic title or other special cir-
cumstances to delimit the territorialeas of the two States in a way
whch is at variance therewith."

88. It is, however, very important to note that even at the 1958Con-
ference there was no suggestion that this exception to the median line
method of territorial-sea delimitation should be applied to the case of
delimitation of thecontinental shelf,and no argumentinfavour of such an
idea was everput forward at UNCLOS III. Thus it may be assumed that
historic title by reason of longstanding practice of sedentary fisheries
mightjustify somedeviation in theline of thedelirnitation of the territorial
sea,but otherwise hstoric title would not have anyimpact on delimitation
of the continental shelf. This is not incompatible with the principle that

any historic fishing right based on longstanding practice should be re-
spected whatever the status of the submerged areas under the new régime.
The Court Statesin paragraph 104that "it may be that Tunisia's historic
rights and titles are more nearly related to the concept of the exclusive
economiczone". 1regret to Saythat 1totallydisagree with ths contention. 1
shall explain the concept of the exclusiveeconomic zone at a later stage,
but it has nothing to do with historic titles, as the Court suggests.

CHAPTER IV. NEWTRENDS INTHE CONCEPT OF THE
CONTINENTA SHELF

Section I. The Halting of the Expansion of the Outer Limit of the
Continental Shelf

89. While the basic legal concept of the continental shelf was strongly
confirmed by the 1958 Convention on the Continental Shelf, and was
further endorsed by the 1969Judgment of the Court as being established
under customary international law, the actual extent of the legal conti-
nental shelf hadbeen left indeterminate, because of theintroduction of the
equivocal notion of exploitability which suggested that the area couldeventually expand under virtually the whole of the high seas. This trend
was halted by the rise of the newconcept of theinternational sea-bed area
late in the 1960s.The realization that the concept of exploitabilitycould be
interpreted to mean that al1sea-bed areas of the worldwouldeventually be

divided among separate States led Malta to take the initiative by intro-
ducing the concept of the common heritage of mankind, to be applied in
the area beyond a redefined continental shelf.

90. Ambassador Pardo of Malta made an hstoric speech on 1Novem-
ber 1967,which reads in part as follows :

"67. The . ..interpretation of the 1958 Geneva Convention [en-
abling the areas beyond the continental shelf to be placed under
certain international régimes]has, however, not gone unchallenged
since it is in direct contradiction to the explicit wording of Article 1
(a), which States that the continental shelf extends '.. . to . . .the
submarine areas adjacent to the Coast. ..to adepth of 200metres and
beyond that limit to wherethe depth of the supejacent waters admits
of the exploitation of thenatural resources of the said areas'.Thus an
influential school of thought denies the possibility of ai-,ylegalprob-
lem whatsoever. Professor Shigeru Oda of Tohoku University, for
instance, points out that : 'there isno room to discuss the outer limits
of the continental shelfor anyarea beyond thecontinental shelfunder
the Geneva Convention since. ..al1the submerged lands of the world
are necessarily part of the continental shelf by the very definition of

the Convention'. Under this concept a coastal State, as its technical
capability develops, may extend its jurisdiction across the deep-sea
floor up to the midway point between it and the coastal State oppo-
site, in accordance with the rules contained in Article 6 of the Con-
vention. Such an interpretation givesthe governing Powersof islands
such as Clipperton,Guam, the Azores, St. Helen or Easter, sovereign
rights over millions of square miles of invaluable ocean floor.

68. More important than the opinion of jurists, however, and
however distinguished they may be, is the action taken by govern-
ments ; and such action appears to be increasingly based on an
interpretation of the 1958Geneva Convention evenmorefar-reaching
than that of Professor Oda. For instance, the United States has
already leased tracts of land situated under water several hundred
fathoms deep and wellbeyond its territorial waters, basing itself on a
Department of Interior legal memorandum which holds that the
leasing authority of the United States under the Outer Continental
Shelf Lands Act 'extends as far seaward as technological ability can
copewith the water depth, thisis in accord with the Convention of the
Sea adopted at Geneva'. This practice is spreading." (GAOR, 22nd
Sess., 1st Comm., 1515thMeeting, p. 9.)Owing to the initiative taken by Malta, the United Nations General

Assembly adopted on 18 December 1967resolution 2340 (XXII) called
"Exarnination of the question of the reservation exclusivelyfor peaceful
purposes of the sea-bed and the ocean floor, and the subsoil thereof,
underlying the high seasbeyond thelimits ofpresent national jurisdiction,
and the uses of their resources in the interests of mankind", by which anad
hoc cornmittee was established to study the scope and various aspects of
this subject. It was thus tacitly understood that there would have to be an
international sea-bed area beyond the limits of national jurisdiction.

91. In parallel with the initiative of Malta, a movement had been
emerging among non-governmental organizations in the United States to
place the deep ocean floor under a certain kind of international control,
and in the late 1960sanumber of Billswereintroduced in the United States
Congressfora newrégimeto that effect.On theother hand, the oilindustry
in the United States seemed to be more willing to place the safety of its
investments off the coasts of somedeveloping nations under some iund of
international control, in order to minimize the risks of eventual national-
ization. Encouraged by this, President Nixon announced his country's
policy on the ocean in his report to Congress on 18 February 1970 :

"We also believe it important to make parallel progress toward
establishing an internationally agreed boundary between the Conti-
nental Shelfand the deep seabeds and on a régimefor exploitation of
deep seabed resources." (USDS, Vol. 62, p. 314.)

In a subsequent statement on 23 May 1970he proposed that :

"Al1nations [should]adopt assoonaspossible a treaty under which
they would renounce al1national claimsover thenatural resources of
the seabedbeyond the [200-metreisobath] and would agree to regard
these resources as the common heritage of mankind."

It was clear, however, in viewof his further proposa1for an international

trusteeship zone for thecontinental marginsbeyond the 200-metreisobath
that, unlike somedeveloping nations seekingthe benefits derived from the
exploitation of the "areas beyond" as the common heritage of mankind,
the United States, which wanted certain international controls imposed
upon other coastal States for the security of its own invested capital, yet
attempted to reserve access to the continental margin for its interests. 92. The United Nations Sea-bed Committee, established pursuant to
General Assembly resolution 2340 (XXII), started its work in 1968.For
threeyearsit deliberated,and during al1that time no nation cast doubt on
the principle that the unrestricted expansion of the continental shelf in
terms of exploitabilityshould be abandoned so as to leavesomepart of the
sea-bed freefor the benefit of the international comrnunity.Nevertheless,
the Committee failed to adopt any declaration. Despite this, the United
Nations General Assembly, at its twenty-fifth sessionin 1970,adopted by
108-0-14 votes a Declaration of Principles governing the international
sea-bed area (resolution 2749 (XXV)),whch affirmed that :

"[tlhere is an area of the sea-bed and the ocean floor, and the subsoil
thereof,beyondthe lirnitsof nationaljurisdiction, the preciselimits of
which are yet to be deterrnined".

It also adopted by 108-7-6 votes General Assembly resolution 2750 C
(XXV), whereby it :
"Noting that the political and economicrealities, scientific devel-
opment and rapid technological advances of the last decade have
accentuatedthe need for early and progressivedevelopment of the law
of the sea, in a framework of close international CO-operation .. .

2. DecideLd]to convene in 1973 ... a conferenceon the law of the
sea whch wouPddeal with . .a precise definition of the area, and a
broad range of related issuesincluding those concerningthe régimes
of.. .the continental shelf."
By the same resolution, the Sea-bed Committee was broadened, both in
membership and functions.

93. Thus it was already clear that in the sea-bed areas of the vast oceans
of the world, where the concept of the continental shelf had been the only
applicable régime,the new concept of the common heritage of mankind
had arisento cal1ahalt to theindefiniteexpansion of thecontinental shelf,
in order to preserve the international sea-bed beyond it.

Section II. Fluctuationof the Criteriafor the Outer Limit of the
Continental Sheif

1. Suggested criteria

94. The outer limit of the continental shelfwas the subject of extensive
argumentthroughout the duration of theenlarged Sea-bed Committeeand
UNCLOS III. The notion of distance from the Coast was proposed in
addition to, orinplace of,theexistingcriterion ofthe 200-metredepth,and
the distance criterion or a combination of the distance and the depth
criteria were gainingin importance, while the somewhat ambiguous con-215 CONTINENTAL SHELF (DISS.OP. ODA)

cept ofexploitabilityhad becomeinterpreted in suchawayasto alloweach
coastal State to claim as far as the foot of the continental margin as a
potential resemoir of petroleum resources, leaving the hard minera1
resources of thedeep ocean floor as thecommon heritage ofmankind tobe
administered by an international authority.

95. In 1970 the United States, implementing the proposals made by
President Nixon a few months before, introduced a draft convention
proposing an international sea-bed area which would lie beyond the con-
tinental shelfasdefined in terms of the 200-metreisobath. However,it also
suggested the institution of an international trusteeship area to comprise
the continental marginbeyond the continental shelf and constitute a part

of the international sea-bed area in which each coastal State would be
responsiblefor licensing, supervision and exercise of jurisdiction. In this
areaeachcoastal State would alsobeentitled to aportion oftheroyalties or
profits derived from the exploitation of the resources (MAC. 138/25). The
real intention of the United States seems to have been for the continental
margin, though given the status of an international sea-bed area, to be
placed under the control of the coastal State, while nevertheless featuring
international protection of the relevant investments from any arbitrary
nationalization or confiscation by such State.

96. In 1972 many landlocked and shelf-locked countries, acting as a
group,took aposition opposingtheidea of wider continental shelf andlor
narrower international sea-bed areas, while France, on the other hand,
advocatedthe 200-miledistancecriterion for thecontinental shelf, and the
Netherlands suggested establishing an intermediate zone between the

continental shelf and the international sea-bed areas. In the Kenyan pro-
posal,presented in that year, the control of the coastal state in terms of a
200-mileExclusive EconomicZone would definitely be extendednot only
to living resources but also to minerals. However, States which had even
broader continental shelves in the geological sense, such as the United
States, Canada, Brazil, the Soviet Union and India, contended that that
zonewould not be sufficient and accordinglyclaimed sea-bed areas farther
than 200 miles from the coast as being still part of the continental shelf.
These extensive sea-bed areas could have been defined in terms of the
200-metre depth, as at the Geneva Conference of 1958.However, since
petroleumresources existnot onlyinthe continental shelfitselfbut alsoin
the continental slope and margin beyond, the demand of those coastal
Statescould not simply stop at the 200-metre depth-line, even though this
might liemore than 200 milesfrom the coast. Thus the continental shelfin
legal terms needed to be interpreted in its widest sense in order to incor-

porate the outermost fringe of the continental margin.

97. In 1973 and 1974 numerous coastal States put fonvard concrete
proposals, of which that from the Soviet Union was distinguished by a216 CONTINENTAL SHELF (DISS.OP.ODA)

combination of the 500-metre depth and the 100-miledistance from the
Coastas a criterion for the outer limit of thecontinental shel; and Greece
likewisesuggestedacombination ofdistance anddepth ofwater. The other
proposals tended to abandon the depth criterion in favour of distance
and/or geomorphological criteria, but al1militatedtowardsthediminution
of thepotential international sea-bed.The concept ofnatural prolongation
returned at Caracas in a nine-State proposa1 (Canada, Chile, Iceland,

India, Indonesia, Mauritius, Mexico, New Zealand and Nonvay) which
read, in part :

'Yrticle19

2. The continental shelf of a coastal State extends beyond its ter-
ritorial sea to a distance of 200miles from the applicable baselines

and throughout the natural prolongation of its land territory where
such natural prolongation extends byond 200 miles." (A/CONF.62/
L.4.)
98. The United States,in 1973,totally reviseditsposition and suggested
the concept of a coastal sea-bed economic area, which would cover the
expanse from the outer limit of the 12-mileterritorial sea tothe loweredge
of the continental slope (A/AC. 138/SC.II/L.35). The real intention of the

United States was to ensure, on the one hand, that the exploitation of this
sea-bedareashould notbe impeded by anycoastal State exceptfora public
purpose, on a non-discriminatory basis, and with payment of just com-
pensation, and, on the other hand, to suggest that the coastal State could
bring such an activity under its own jurisdiction on condition that a
portion of the revenuesgainedfromexploitingthisarea mightbe dedicated
to the international community. It might be said that although this new
draft ostensibly makes a striking contrast to the United States' draft
convention of 1970, the aims of both proposals were in fact not so dif-
ferent. However, in 1974the United States abandoned its 1973proposa1
and switched back to the subject of the outer limit of the continental shelf
with a composite definition involving the economic zone, natural prolon-

gation and geomorphology :
'Yrticle22

2. The continental shelfisthe sea-bedand subsoil ofthe submarine
areas adjacent to and beyond the territorial sea to the limit of the
economiczoneor,beyond that limit, throughout the submerged nat-
ural prolongation of theland territory of thecoastal Stateto the outer
limit of its continental margin, as precisely defined and delimitedin
accordance with Article 23 [on limits]." (A/CONF.62/C.2/L.47.)2. Negotiating texts

99. At thethird sessionofUNCLOS III in 1975,theISNT wasprepared
as acompilation of the work done by the chairmen of the main cornmittees
in their respective persona1capacities.Although they may have had con-
sultations with some groups or delegations and may even have taken into
account the various proposals and ideas presented previously, the end
result was nothing more than the persona1workof each chairman. Appar-
entlybasing himself on two proposals,one by the nine countries (Canada
and others) and the other by the United States, both of whch are quoted
above, the Chairman of the Second Committee drafted the following
provision :

'Yrticle 62. Definition of the ContinentalShelf
The continental shelf of a coastal State compjises the sea-bed and
subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolongation of its land territory to the outer

edge of the continental margin, or to a distance of 200nautical miles
from the baselines from which the breadth of the territorial sea is
measured where the outer edge of the continental margin does not
extend up to that distance."

The provision in the ISNT remained,without any change, as Article 64 in
the RSNT and Article 76 in the ICNT.

100. In this connection 1must refer to a provision of Article 69 of the
ISNT on payments and contributions with respect to the exploitation of
the continental shelf beyond 200 miles. Its background is the fact of
geography that the formation of the continental shelf can be extremely
inequitable for some coastal States. If the legal continental shelf is to
incorporatenot onlythe200-miledistancefrom the Coastbut alsothe outer
edge of the continental margin - which could lie beyond that distance -
thus embodyingsea-bed areas wherepetroleumdeposits can be found, the
geographical inequality of States will be further exaggerated. But the
landlocked or shelf-locked Statesnot having any continental shelf would
not allow the excessiveclaims made by a handful of States to go unchal-
lenged. The provision thus seems to have been drafted by some geogra-
phically advantaged States simply to appease the dissatisfied States. In
point of fact it originated mainlyin Formula Aof Provision 80of theMain
Trends of 1974,referred to above, and partly in Formula Btaken from the

United States proposa1of 1974(A/CONF.62/C.2/L.47) ;in any case, to
understand this novelrégime,it seemsessential to analyse how the United
States position fluctuated from President Nixon's statement of 23 May
1970 to its proposals in 1974 in "Draft articles for a chapter on the
econornic zone and the continental shelf" (A/CONF.62/C.2/L.47), and
through its proposa1in 1970in "Draft United Nations Convention on the
International Sea-bed Area" (A/AC.138/25) to its proposa1 in 1973 in"Draft articles forachapter onthe rights and duties of Statesin the coastal
sea-bed economicarea" (A/AC.138/SC.II/L.35) (emphasis added). The
provision of the ISNT was to the effect that, unlike the proceeds of the
coastal State's exclusiveinterests within its 200-miledistance, the revenues
derived from exploitation beyond that limit would be dedicated to the
international community through the authority to be established for the
purpose of exploitation of the deep ocean floor, which would in turn
"distribute them. ..taking into account" (ISNT, Art. 69, para. 4) the
interests and needs of developing States, particularly the least developed
and the landlocked among them.

101. Thus thecontinental shelfwouldbe divided into twoareas, thefirst
beingthe area within 200milesfromthe Coast,wherethe exclusiveinterests
of the coastal State would be established, and the other, the area beyond
that, where aportion of theprofits would be dedicated to the international
comrnunity, in particular the developing nations. This parallelism is
retained, with somemodifications, in the draft convention asArticle 82.It
cannot be over-emphasized that this formula never founded part of the
traditional concept of the continental shelf.
102. In 1978,several negotiating groups were established to negotiate
oncertainhardcore issues.The sixthnegotiating group wasentmsted with,
among other things, the definition of the outer limit of the continental
shelf.The discussions of thegroup werenot disclosed,but, followingthem,
a compromise suggestion by the chairman of the group was presented, at
the eighth session,held in 1979,to the plenary meeting on 27 Apnl 1979
(A/CONF.62/L.37). This text, containing nine paragraphs, was totally
different from ICNT Article 76, a one-paragraph article, particularly in
the way that the continental margin beyond the 200-miledistance would
receiveparticular treatment in the régimeof the continental shelf.At the

close of the eighth session (1979), the ICNT/Revision 1 was prepared,
which modified Article 76 to some extent along the lines suggestedby the
chairman of the sixthnegotiating group (A/CONF.63/L.37). According to
the explanatory memorandum by the President of the Conference :

"On one major issue, that of the compromiseproposa1advanced by
the Chairman of the Second Cornmittee in document A/CONF.62/
L.37 relative to certain aspects of the continental shelf, the situation
was rendered more complex by the fact that a number of delegations
had expressedopposition to, or reservations on, the inclusion of these
proposals in a revision at this stage. The team was, therefore, obliged
toexaminewith the utmost care the question whether those proposals
could bejudged as meeting the criterion of enjoying 'widespread and219 CONTINENTAL SHELF (DISS.OP.ODA)

substantial support prevailing in Plenaryand to offer a substantially
improved prospect of a consensus'. It noted that support for the
inclusion of these proposals had been expressed by countriesfrom al1

regional groups, among which were a number of land-locked or
othenvise geographically disadvantaged States. On the other hand,
opposition to their inclusion had been based chiefly on the ground
that therehad beeninsufficientnegotiation or discussion and that the
proposals did not take adequate account of other proposals or posi-
tions. However, as those proposals represented a clear movement
awayfrom the ICNT text which wasin thelight of the plenary debate
manifestly less acceptable as a continuing basis of negotiation, the
conclusion seemedinescapable that compared with thecorresponding
provisions of the ICNT, the new proposals appeared to the team to
merit inclusion in the revision as offering the basisfor a substantially

improved prospect of a consensus.

This important conclusion was reached unanimously by the mem-
bers of the team. The discussions in the team on al1points were
characterized by a remarkable degree of agreementand understand-
ing which enabled it to arrive at unanimous decisions on al1the other
texts and revisions presented to the Plenary by the Chairmen con-
cerned." (A/CONF.62/WP.lO/Rev.l, pp. 18 f.)

Article 76, thus redrafted in the ICNT/Revision 1, read as follows :

"1. The continental shelf of a coastal State comprises the sea-bed
and subsoil of the submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its land territory to the
outer edge of the continental margin, or to a distance of 200 nautical
milesfromthe baselines fromwhichthebreadth of theterritorial seais
measured where the outer edge of the continental margin does not
extend up to that distance.

2. ...

3. The Continental margin comprisesthe submerged prolongation
of the land mass of the coastal State,and consists of the sea-bedand
subsoil of the shelf, the slope and the rise.It does not includethedeep
ocean floor or the subsoil thereof l.
-
' General understanding has been reached to the effect that on the question of
undenvater oceanic ridges there will be additional discussion and a mutually
acceptable formulation to be included in Articlewill be drawn up."
103. At the ninth session,in 1980,the sixthnegotiatinggroupcontinued
deliberations on the subject of the outer limit of the continental shelf,

and those discussions were included in the report of the Chairman of
the Second Cornmittee to the Plenary Meetings (A/CONF.62/L.51, 220 CONTINENTAL SHELF (DISS.OP.ODA)

UNCLOS III, Officia1Records,Vol. XIII, p. 82). Certain arguments rele-
vant to these issues were spelled out as follows :

(a) Submarine ridges

This point, referred to in a foot-note to paragraph 3 of Article 76
was the subject ofparticularly intense consultations and negotiations.
In conjunction with theseefforts, 1submitted for theconsideration of
the group at its informa1meeting on 28 March 1980a compromise
formula worded asfollows. Amend thelast sentencein paragraph 3of
Article 76 to read as follows :

'Itdoesnot include the deepoceanfloorwith its oceanicridgesor
the subsoil thereof.' "

In the ICNT/Revision 2, prepared at the close of the ninth session, some
amendments weremade to Article 76along the linessuggestedby the sixth
negotiating group, so that paragraph 3 now reads as follows :

"The continental margin comprises the submergedprolongation of

the landmass of the coastal State, and consists of the sea-bed and
subsoil of the shelf,the slope and the rise. It does not includethe deep
ocean floor with its oceanic ridgesor the subsoil thereof." (The part
italicized was newly added.)
The text suggested in the ICNT/Revision 2 remained unchanged in the

draft convention (Informa1 Text) in the summer of 1980 and the draft
convention on the Law of the Sea prepared in August 1981.

104. The above account should suffice to show that there is no com-
parison between the degree to which the actual régimeof the continental
shelfhas found acceptance, notto mention its endorsement by theCourt in
1969as customary law, and the status of the latest definition of the shelf's
expanse, asit has hitherto emergedfrom UNCLOS III. It should be crystal

clear that Article 76 of the draft convention is essentially a product of
compromise - not consensus - between the conflicting positions of var-
ious groups whichhave different, and sometimesopposite, interests in the
useof sea-bed areas. Wellmaythe draft convention be expectedeventually
to becomebinding upon manynations, onceit hasbecomewidelyaccepted
and received a sufficient number of ratifications. Until that time, there is
no doubt that Article 76 is not a provision of any worldwide multilateral
convention, and can hardly be considered as enshrining established rules
of international law.

105. With respect toArticle 76,both Tunisia and Libya had occasion to
express their own views, as follows. Tunisia stated :221 CONTINENTAL SHELF (DISS. OP. ODA)

"The Tunisian Governmentconsidersthat Article 76,paragraph 1,
representsone of the recent trends adrnitted at the Third Conference
on the Law of the Sea.The whole of the text of Article 76is the result
of long and arduous negotiations, which concerned each paragraph

and each sentence of the various paragraphs of which it is com-
posed."
Libya's view, on the other hand, was as follows :

"The Libyan Jamahiriya regard the first part of this paragraph
[Art. 76, para. 11as representing existing, customary law. This is for
thereasonthat, on thebasis of theCourt's ownJudgment, in 1969,itis
clear that a coastal State is already entitled, dejure, to its natural
prolongation, in accordance with customaryinternational law. Sofar
as the extension to the edge of the continental margin is concerned, it
is arguable that a coastal State's dejure entitlement to its natural
prolongation extends to the edge of the continental margin.
The same would not be true for an area which liesbeyond the edge
of a continental margin, but within 200 miles from the baseline.
Thereforethe second part is not customary law sofar as it defines the
outer limit of the continental shelf."

Thus evenin the eyesof thePartiestothe case,theCourtcouldnot (earlyin
1982)have relied on Article 76 of the draft convention on the Law of the
Sea in determining the principles and rules governing the geographical
extent, or the outer limit, of the continental shelf.

Section III. Changing Conceptof the ContinentalSheIf

106. Both in the United Nations Sea-bed Cornmitteeand in UNCLOS
III, hardly any proposa1or suggestiondealingwith thebasicconcept of the
continental shelfcame to thefore.TheISNT of 1975had aprovision under
Article 63,paragraphs 1-3,whichwasthe sameasArticle 2,paragraphs 1-3,
of the 1958Continental Shelf Convention, except for the welcome dele-
tion, from paragraph 2, of the virtually senseless phrase italicized below

(which had surely been included in mistaken response to the Yugoslav
proposa1 mentioned above - see para. 43) :

"The rights ... are exclusive in the sense that if the coastal State

does not explorethe continental shelf or exploit itsnatural resources,
no one may undertake these activities, or may make a daim to the
continentalshelJ;without the express consent of the coastal State."

Article 63, paragraphs 1-3,of the ISNT eventuallyentered the draft con-222 CONTINENTAL SHELF (DISS.OP. ODA)

vention on the Law of the Sea without any change, and reads as fol-
lows :

'Xrticle 77. Rights of the Coastal State Over the ContinentalShelf

1. The coastal State exercises over the continental shelf sovereign
rights for the purpose of exploring it and exploiting its natural
resources.
2. The rights referred to in paragraph 1 are exclusivein the sense
that if the coastal State does not explore the continental shelf or
exploit its natural resources, no one may undertake these activities
without the express consent of the coastal State.
3. The rights of the coastal State over the continental shelf do not
depend on occupation, effective or notional, or on any express pro-
clamation."

107. Thus in the upshot the actual régimeof the continental shelf is
represented asremaining in 1981exactly the same asin 1958.Yet itcannot
be over-emphasized that, in parallel with the change in the outer limit of
the continental shelf, the notion of natural prolongation by which the
concept of thecontinental shelf wasembellished inthe 1969Judgmenthas
greatly lost its significance, particularly with the introduction of the cri-
tenon of the 200-miledistance under the strong influence of the concept of
the exclusiveeconomic zone (with which 1 shall deal in the next chapter),

not to mention the parallelism between that zone and a possible inner-
continental shelf of 200 miles, coupled with the possibility of a different
régimeapplying to thecontinental margin beyond that distance. In spiteof
the provision of Article 77relevant to the rights of the coastal State (which
is essentially identical to that of the 1958 Convention), as mentioned
above, the concept of thecontinental shelfcannot haveescapedchangeas a
result of the fading-away of the geomorphological notion of natural pro-
longation. This notion may be said to have remained in the casewhere the
(geomorphological) continental shelf or slope extends farther than 200
miles, yet it must be said that the concept of the continental shelf,which
had been sustained by scholarly viewsand theimperious necessities of the
1950s,has, early in the 1980s,changed.

108. The present casehas beenpresented bothinthe SpecialAgreement

and throughout the pleadings and arguments of the Parties as a case
concerning the principles and methods applicable to delimitation of the
continental shelf. However, in view of the fact that the concept of the
exclusiveeconomic zone has rapidly been accepted in the realm of inter-
national law, one cannot avoid the question whether this case should not
also have been regarded as involving the lateral delimitation of the Exclu-sive Economic Zone appertaining to Tunisia and the ExclusiveEconomic
Zone appertaining to Libya. The question as to whether the sea-bed, at
least within 200miles of the Coast,has been incorporated in the régimeof
the Exclusive Economic Zone or whether it should still come under the
separate régimeof the Continental Shelf in parallel with the Exclusive
EconomicZone was far moreessential than generally thought for making
anyjudgment on the issuespresented for theCourt's consideration. 1must
add that the Exclusive Economic Zone cannot be a concept to which
historic rights and titles claimed on the basis of longstanding fisheries are
nearly related, as suggested in the Judgment (para. 100).

Section I. The New Conceptof the Exclusive EconomicZone

1. Emergence of the concept

109. No provision concerning an idea similar to that of the Exclusive
EconomicZoneis found in any of the 1958Conventions on the Law of the
Sea,althoughtheidea of theepicontinental seahad been promoted, mainly
by some Latin American countries, in the post-war period. During the
First and Second United Nations Conferences on the Law of the Sea, in
1958and 1960respectively, the United States was ready to forsake the
fisheryinterests if thefreenavigation ofwarships in offshore areas of other
coastal Statescould be guaranteed. Thus apackage-deal was suggestedby
the United States whereby the 12-milefishery zone would be traded for a
narrower territocal sea. This idea did not bear fruit in those conferences.
But the determination of the United States to maintain a narrower terri-
torial sea limit for security and military considerations remained un-
changed, and the question was pursued in order to discover some way of
forestallingthe general movement towards a 12-mileterritorial sea. How-
ever, it became apparent in the latter half of the 1960sthat it was already
impossible to reverse the trend towards the extension of the territorial sea
and persuade the developing nations to withdraw their unilateral legisla-
tion establishing a 12-mileterritorial limit. Finding it imperative to pre-

serve free navigation and overflight in certain critical areas, the United
States had to seek some compromise solutions.

110. In announcing its maritime policy, the United Statesmade it clear
in 1970 that, while recognizing the 12-mile territorial sea, it wished to
secure free navigation for warships and overflight for military aircraft in
certain places. In order to achieve this objective, some compensation
would have to be offered to the developingnations. Ten yearsbefore, when
the six-mile territorial sea had been at issue, the set-off had been the
recognition of a 12-milefishery zone, and in 1970it had to be something
more. Thus the United States offered to some increasingly disgruntled
developingnations the concept of preferential fishing rights beyond the
12-mileterritorial sea. In other words, preferentialfishingrights of coastal
States were offered at the expense of existing fishing rights of major
distant-water fishing nations, in order to gain freedom of passage forwarships and military aircraft through and above certain straits. At the
1971session, the United States presented its idea to the United Nations
Sea-bed Committee in the form of a three-articled draft convention (A/
AC.138/SC.II/L.4) which, after accepting the 12-mileterritorial sea as a
fait accompli,attempted to retrieve the strategic situation with the scheme
outlined above.Yet to somedeveloping nationstheUnited Statesattempts
appeared to be-designed to lure the largest catch with the smallest bait.

111. For the developingcountries the 12-mileterritorial sea had been a

premise,not something to begranted asacompensation. Hence theUnited
States claim to free passage through straits as if they were high seas
appeared to them a violation of their sovereignty. Furthermore, exclusive
fishing beyond the territorial sea had been considered by the developing
nations tobe an acquired right. They simply wished to institutionalize the
régimeof a fishery zone which would extend as far from the Coast as
possible, and they were confident that their wishes would eventually be
realized.They were accordingly not willingto wait for the materialization
of the somewhat ambiguous preferential fishing rights promised by the
United States draft. Frorn their point of view, the recognition of the
12-mileterritorial seawas but the endorsement of a customary rule of law,
sothat its recognition should be unconditional. Moreover, theyconsidered
thefishingresources tobefound intheir adjacent seasasbelonging to them
inherently and not as something that could be bargained for. It is against
this background that the concept of the economic zone came into
being.
112. The Exclusive Economic Zone concept was introduced by Kenya
at the forum of the Asian-African Legal Consultative Committee
(AALCC) held at Lagos in January 1972.A 200-milelimit was suggested,

where "fishery and pollution control would be within the exclusivejuris-
diction of the coastal State" (AALCC Report, 1972,p. 157).Infact thiswas
but the start of the concept of the exclusiveeconomiczone,for at that stage
the question of the exploitation of the mineral resources of the sea-bed
seemed to play no role in the thinking of Kenya. On the other hand, two
conferences which were held only some months after, in the Carribbean
region and Africa respectively,played a decisiverole in setting up a more
comprehensive concept. The specialized conference of the Caribbean
countries on problems of the sea, held at Santo Domingo, the Dominican
Republic, in June 1972,adopted the Santo Domingo Declaration, which
put forward the concept of the 200-milepatrimonial seawhere thecoastal
State would have sovereignrights over the renewable and non-renewable
resources in the waters, the sea-bed and the subsoil.This Declaration also
suggested a concept of the continental shelfwhich wasmore or lesssimilar
to that adoptedin the 1958Convention on the subject but it added that in
thepart of the continental shelf covered by the patrimonial sea the legal
régimeof thelatter should apply. The African States Regional Seminar on225 CONTINENTAL SHELF (DISS. OP. ODA)

the Law of the Sea, held at Yaoundé, Cameroon, also in June 1972,
adopted a general report in which it was suggested that theAfrican States
should have, in an economic zone, exclusive jurisdiction for control,
regulation and national exploitation of the living resources. With regard
to fishery resources, such economic zone was understood as including
"at least" thecontinental shelfand, withregard to thecontinental shelfand
the sea-bed, the economic zone was to embody al1economic resources
comprising both living and non-living resources, the latter including oil,
natural gas and other minera1riches.

113. Although both documents adopted by the Santo Domingo Con-
ference or the YaoundéSeminar referred not only to livingresources but
alsoto minera1resources asbeing coveredby the régimeof thepatrimonial
sea of the economic zone, it is not easy to determine the real intention
behind these documentsregardingthe status of thecontinental shelf or of
the minera1 resources of the sea-bed in that connection, yet there was
apparently no positive intention in either Conference to amalgamatethe
concept of the continental shelf with that of either of the two new insti-
tutionsproposed. It wasnot at al1clear how the régimesof the continental
shelf on the one hand, and the patrimonial sea or economic zone on the
other, would CO-exist.But, however that may be, the discussions in the
Sea-bed Committee in 1972and 1973were dorninated by the concepts
advanced at these two regional meetings. Kenya proceeded formally to
submitthe 200-mileeconomic zone proposa1to the Sea-bed Committeein
the summer of 1972.While freedom of navigation was still to be guaran-

teed, coastal States were to

"have exclusivejurisdiction for thepurpose ofcontrol,regulationand
exploitation of both living and non-living resources of the Zone and
their preservation, and for thepurpose of prevention and control of
pollution" (A/AC. 138/SC.II/L. IO,Art. II).

This proposa1 continues to state :

"The exerciseofjurisdiction over the Zone shall encompass al1the
resourcesof thearea, livingandnon-living,eitheron thewatersurface
or withinthe water column, or on the soi1or subsoilof the sea-bed and
ocean floor below." (Ibid., Art. IV.)
Within two years Kenya's proposa1had attracted manyCO-sponsors,par-
ticularly in Africa and Asia.
114. In parallel, somedeveloped States,whileconceding that thecoastal
States should have somejurisdiction with respect to the utilization, con-
servation and management of the living resources of the sea in areas

adjacent to their coasts, were more interested in having the utilization of fishery resources in such areas maximized for the benefit of the interna-
tional community, or at least in the interest of geographically disadvan-

taged States. It is important to note that these developed States then took
theconcept of thecontinental shelf asundisturbed, and understood grosso
modo that the areas it was proposed to draw into the Exclusive Economic
Zone would be affected solelyin respect of fishing.Thus Canada spoke of
delegating powers to conserve and manage fishery resources within the
proposed zone to coastal States as custodians of the international com-
munity, while Australia and New Zealand had in 1972submitted a work-
ing paper recognizing the exclusivejurisdiction of the coastal State over
the living resources of the superjacent waters of the continental shelf
(A/AC.138/SC.II/L.11). The responsibility of the coastal Stateto ensure
proper managementand utilization of the livingresourceswashere spelled
out for the first time.

115. Ttwas for the coastal State under this proposal to determine the
allowable catch of any particular species and to allocate to itself that
portion of the allowable catch, up to 100per cent, that it could harvest.

However, where the coastal State was unable to take 100per cent of the
allowable catch of a species, it had to allow the entry of foreign fishing
vesselswith aviewto maintainingthe maximumpossible foodsupply. The
Kenyan proposa1was re-drafted in 1973as "Draft Articles on the Exclu-
siveEconomicZone", sponsored by 14AfricanStates (Algeria,Cameroon,
Ghana, Ivory Coast, Kenya, Liberia, Madagascar, Mauritius, Senegal,
Sierra Leone, Somalia, Sudan, Tunisiaand United Republic of Tanzania)
(A/AC.138/SC.II/L.40). In parallel, Kenya, jointly with Canada, India
and SriLanka, alsopresenteda proposa1on fisheries in which the concept
of the exclusive fishery zone was suggested (A/AC.138/SC.II/L.38). In
these two proposals it was specifically provided that jurisdiction and
control over al1fishing activitieswithin the exclusiveeconomiczone would
lie with the coastal State, which would also decide any disagreement over
its limits or the terms and conditions for fishin~.However. the im~osition
on the coastal State of responsibilities for conservationand management
would distinguish the exclusive economic zone from the territorial sea.

116. Alongside the principally African proposals for an exclusive eco-
nomic zone, various Latin American States continued in 1973,pursuant
to the year-old Santo Domingo Declaration, to promote their concepts of
the patrimonial, epicontinental or expanded territorial sea. However, in
the course of the deliberations of the Sea-bed Committee in 1973 and
UNCLOS III in 1974, these concepts of the patrimonial sea or the epi-
continental seagradually mergedintoor weresupplanted by theconcept of
the exclusive economic zone initiated by Kenya.2. Conceptof the exclusive economic zoneas suggested in the negotiating
texts of UNCLOS III

117. During the preparation of the negotiating text in UNCLOS III
from 1975to 1980,the suggested200-milelimitfor the ExclusiveEconomic
Zone remainedconstant. The relevant provision in the ISNT (Art. 46)did
not undergo any change throughout the RSNT (Art. 45), and the ISNT
(Art. 57) or its revisions. The draft convention on the Law of the Sea of
1981has the same provision, except for a very minor drafting change. It
reads :

'Yrticle 57. Breadth of the Exclusive EconomicZone
The exclusiveeconomiczone shallnot extend beyond 200nautical
milesfromthe baselines fromwhichthebreadth oftheterritorial seais
measured."

It is to be noted that the 200-milelimit for this zonehad never beenopenly
challenged since Kenya suggested the concept early in 1972. No other
suggestion for the seaward extent of this zone has ever been presented to
the Sea-bed Cornmittee or to UNCLOS III. Unlike the case of the con-
tinental shelf, there is no trace of the criteria of contiguity or natural
prolongation in the concept of the exclusiveeconomic zone. Just like the
territorial sea or the contiguous zone, theextent of the exclusiveeconomic
zoneis tobe measured simply by distancefromthebaseline off the Coast.It
is veryimportant tonote that thisdiffersgreatlyfrom theoriginalconcept
of the continental shelf.

118. On theother hand, while the basicconcept of thecontinental shelf
had been firmlyestablishedwithout leaving anyroom fordoubt, the basic
concept of the exclusiveeconomiczone is not quite unequivocal. In order

to avoid any controversies over the basiccharacter of that zone, the ICNT
introduced a novelprovisiontoindicatethat its régimewouldbe suigeneris
as established by the convention itself. This provision is retained in the
draft convention, rendering meaningless the argument as to whether the
exclusive economic zone still remains part of the high seas :

'Yrticle 55. Specific Legal Régimeof the Exclusive EconomicZone

The exclusiveeconomiczone is an areabeyond and adjacent to the
territorial sea, subject to the specific legal régimeestablishedin this
Part, under which the rights andjurisdiction of the coastal State and
the rights and freedoms of other States are governed by the relevant
provisions of this Convention." 119. The provisions relevant to the basic character of the Exclusive
Economic Zone, especially the cardinal provisions on the competence of
the coastal State, had been recast wholesale before the following text

emerged in the ICNT :

'2rticle 56. Rights, Jurisdiction and Dutiesof the Coastal
State in the Exclusive EconomicZone

1. In the exclusive economic zone, the coastal State has :

(a) sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources, whether living or
non-living, of thesea-bedand subsoiland the superjacent waters, and
with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the
water, currents and winds ;

(b) jurisdiction as provided for in the relevant provisions of the
present Convention with regard to :

(i) theestablishmentand useofartificialislands,installations and
structures ;
(ii) marine scientific research ;
(iii) the preservation of the marine environment ;
(c) other rights and duties provided for in the present Conven-
tion ..."

The difference of substance involved in the recasting did not, however,
appear to be crucial, and in fact these provisionshad not undergone any
fundamental discussion during theirpreparation. This text remainsin the
draft convention(Art. 56). It is important to note that, while provision is
made for the competence of the coastal State in the exploitation of non-
livingaswell aslivingresources, itiscontrol of the latter whichreceivesthe
moreconcretetreatment inthe specificprovisions.Indeed, it seemsevident
that, in line with Kenya's originalproposals, the conservationand proper

utilization of livingresources is to be regarded as one of the most essential
features of the régime.The accent wasfurther placed on thecoastal State's
rights and responsibilitiesin this respect to accommodatethe interests of
both landlocked and geographically disadvantaged coastal States to the
Exclusive Economic Zone.

120. It is widelyrecognized that the concept of the exclusiveeconomic
zone has become irresistible,and the way seemspaved towards the insti-
tution of a régimeforit under international law, incorporating a uniform
limit of 200 miles. Throughout the history of international law, scarcely
any other major concept has ever stood on the threshold of acceptance
within sucha shortperiod. Evenapart fromthe provisions ofthe 1981draft
convention, the Court need have fewqualms in acknowledging the general 229 CONTINENTAL SHELF (DISS.OP.ODA)

concept of the exclusive economic zone as having entered the realm of
customaryinternational law. Yet 1cannot but point out two problems in
this respect :first, quite apart from the treaty-making process, the sui
generis régimeof the exclusive economic zone is going to require much
more careful examination before the rules so far adumbrated may be
viewed as susceptible of adoption into existing international law ;
secondly, the relation of the zone to the continental shelf remains pro-
foundly ambiguous, particularly where such "interface" issues as the

exploitation of ocean-floor rninerals are concerned. These ambiguities will
be discussed in the next two sections of this opinion.

Section II. Some Ambiguitiesin the Conceptof the
Exclusive EconomicZone

1. Unclearconceptof conservation management
121. This isnot theplace to makeanyexhaustiveanalysis of theconcept
of the exclusive economic zone but, in order to understand its status in
existinginternational law,it willbe necessary to touchupon thedifficulties
with which it isfaced. As suggestedbefore,the coastal State willbe placed

under certain obligationsfor the conservationand optimum utilization of
fishery resources in the Exclusive Economic Zone. This markedly differ-
entiatesthe régimeof thezonefromtheterritorial seaand fromtheconcept
of a fisherieszone whichhad become institutionalizedin the 1960s ; and it
seems apparent from the draft convention on the Law of the Sea that the
obligations for the conservationand promotion of optimum utilization of
the fishery resources to be imposed upon the coastal Statein this connec-
tion may confront it with some acute difficulties.
122. First, there is no clarityas to the extent to whch responsibility for
consemationentitles, or compels, thecoastal State not only to monitor the
allowablecatch but also to impose restrictions on seasonal fishing, areas
fished and gearused, not to mention whether it may confinetheimposition
of such measures to foreign vessels(Art. 61).Secondly, there is aprofound
arnbiguity about the importation of foreigncapital and equipmentfor the
purpose of increasingthe fishing capacity of the coastal State, as also in

regard to thegranting ofconcessionsto foreignenterprises. Bysuchmeans,
even the least-developedcountry may take steps towards acquiring the
capacity to harvest the whole of its allowablecatch. On this reading, the
notion of the coastal State that "does not have the capacity to hamest",
assuming that "capacity" implies "potential" - which is normally the
case -, seems pointless(Art. 62, para. 2). Yet its very presence in the text
suggests that some other connotation was implied. Hence uncertainty
prevails.

123. Similar obscurity enshroudsthe problem of access to any surplus
of theallowablecatch by other States,including especiallythelandlocked,which are given little clue as to whch exclusiveeconomic zone they may
seekentry to,whatpercentage theymayexpect, andthe extent to whichthe
recognition of traditional fishing and the special needs of developing
countries might affect the result (Art. 62, paras. 2 and 3). Indeed, such is
the complexity and elasticity of the criteria embodied in the draft con-
vention that it is difficult to see how any coastal state, let alone a "least-
developed" one, can be expected to arrive at equitable and technically
correct solutions. Disputes may well occur if other States object to the
coastal State7sdetermination of the allowable catch and its allocation of
the resources in the Exclusive Economic Zone. It would be extremely
difficult to implement the wholeschemeof this process in viewof thefact
that the ideas themselves are not al1well defined in the draft convention.
What ismore, under the text thesedisputes are exempted from compulsory
settlement.

2. Somewhat unbalancedconceptof the enforcementof the laws and regu-
lations of the coastal State
124. The provision of the draft convention on the Law of the Sea
concerning the exercise of jurisdiction in the case of violation of coastal
regulations alsoleavesmany ambiguities (Art. 73).Aspresented, the mode
of exerciseofjurisdiction isno different from that exercisedby the coastal
State within itsterritorial sea and, sofar as the development of thenatural
resources of the sea is concerned, its competence in the Exclusive Eco-
nornicZone is equivalent to that it enjoysin the territorial sea. Moreover,
disputes concerning law-enforcementactivitiesin the exerciseof sovereign

rights of jurisdiction in the Exclusive Economic Zone are proposed
for exemption from compulsory settlement (Art. 298, para. 1 (b)).
Thus an incident arising out of the enforcement of the fishery regulations
of thecoastal State, such as the boarding, inspection and arrest of foreign
vessels,may not be unilaterally submitted by the flag-State of the arrested
vesse1to anyprocedure of compulsory settlement. That the onlypenalties
the coastal State willbe allowed to impose are financial ones does little to
counterbalance this exemption. The same is true of the written-in safe-
guards against undue detention, which remain at the mercy of unilateral
construction of the word "reasonable", despite the at-first-sight impressive
provisions for judicial remedy.

125. In sum, though the idea of the exclusiveeconomic zone undoubt-
edly seems to have been accepted in international law, the competence of
the coastal Stateand the mechanism for the functioning of the new régime
do not yet appear to have undergone thorough examination. Until the
draft convention becomes treaty law, it is premature and equivocal to speak of the Exclusive EconomicZone as if it had given rise to principles
and rules of international law. It should be pointed out that the pros and
cons of the continental sheif concept, prior toits formulation through the
extensive work of the International Law Commission and the Geneva
Conference of 1958,had beenexamined by scholarsthroughout the world,

which greatly contributed to the adoption of the concept in that Confer-
ence, whereas the concept of the exclusive economic zone went through
hardly any scholarly discussionearly in the 1970sand required only one or
two years to be formulated at the United Nations Sea-bed Cornmittee.
Yet nobody today doubts thetrend towardsthe ExclusiveEconomic Zone,
and in this situation the Court was faced with an extremely difficult
problem.

Section III. Relation Between the Continental Sheif and the
Exclusive EconomicZone

1. Parallel régimesof the continental sheif and the exclusive economic
zone

126. The twoparallel régimesoftheContinental Shelfand the Exclusive
EconomicZone arose from completelydifferent circumstances, and the
histories which the respective régimeshave followed are different. If the
régimeof the continental shelf,as seenabove, wasmainly designed for the
exploitation ofminera1resourcesinthesubsoil ofsubmarine areas, thereal

issueshouldnot necessarilyhavebeen related to the status of the bottom of
the sea,but rather to the exerciseof the coastal State'sjurisdiction on the
high seasfor the purpose of exploringand exploiting those resources. The
exclusive economic zone has essentially been designed to reserve for the
coastal State the right to exercisejurisdiction for the purpose of exploi-
tation of fishery resources. Both these jurisdictions are intended to be
exercised far beyond the traditionally recognized extent of the territorial
seas, in areas where the régimeof the high seas used undoubtedly to hold
sway. In this sense, both of these régimesshould be considered as dero-

gation from traditional international law. Certainly such derogations can
be justified pari passu with the development of international law. How-
ever, evenif thejurisdiction of the coastal State is exercised separately for
the purpose of exploitation of resources - mineral resources on or under
the continental shelf, on the one hand, and living resources within the
exclusiveeconomic zone, on the other - is it feasible to assume that the
area in which such jurisdiction is exercised can or should be different,
depending on what resources are exploited ? Either of the régimes - the
Continental Shelf or the ExclusiveEconomic Zone - could be claimed to
exist in parallel with the high seas régime,to which the exercise ofjuris-
diction under either - which at any rate is restrictive - might be regarded

as an exception. Yet if the régimesof the Continental Shelf and Exclusive
EconomicZone CO-exisw t ithout coveringcoincident areas, aquestion may 232 CONTINENTAL SHELF (DISS.OP.ODA)

ariseas to how thejurisdiction of the coastal State can be unambiguously
exercised in the fringes where they fail to overlap. 1s it congruous or
conceivable that the same marine/submarine column should be placed
under different national jurisdictions for the same purpose of resource
exploitation, however different the resources may be, and that the same

area of the ocean be consequently policed by two different States ? One is
entitled to enquirewhethersuperimposition of two differentboundaries is
tolerable as a matter of international ordrepublic.

127.In replying to a question 1put to both Parties, at the hearing on
9October 1981,Tunisia and Libya expressed the followingviews.Tunisia
stated :

"Given that the coastal State, under Article 56 of the draft con-
vention, possesses,in the Exclusive Economic Zone, sovereign rights
for the purpose of exploringand exploiting the natural resources of
the sea-bed and its subsoil, it is difficult to conceivehow the limits of
the Exclusive Economic Zone could differ from those of the conti-
nental shelf inside the 200 miles."

Libya, on the other hand, stated :
"Libya considersthat, as between States with opposite or adjacent
coasts, the delimitation of their respective continental shelf areas and
of their economic zones ought not, in the majority of cases, to be

different. Nevertheless, there may be factors relevant to fishing, such
as established fishing practices, which have no relevance to shelf
resources ;and, conversely, there may be factors relevant to shelf
resources - such as geological features controlling the extent of a
natural prolongation - of no relevance to fishing. It therefore follows
that the two boundaries need not necessarily coincide."

The Parties were thus in apparent disagreement on this point.

2. Exploitationofsubmarinemineralresourcesunderthedifferent régimes of

the Continental Shelf and Exclusive EconomicZone

128. A further difficulty will arise if the same resources may be
exploited under the two different régimesand each régimeisheldto apply
to a different area. As previously pointed out, the concept of the exclusive
economiczone had originated in the idea of the fishery zone in the early

1970s.However,by 1973,its expansion to coverthe exploitation ofminera1
resourceshad already begun. But in that and the followingyear, little heed
was paid to the fact that, with regard to minera1resources, the concept of
the Continental Shelf had alreadybeen firmly established, and this over-
sight marred the proposals concerning the new zone. The necessity of233 CONTINENTAL SHELF (DISS. OP. ODA)

harmonizing the concepts of the ExclusiveEconomic Zone and the Con-
tinental Shelf, or of clarifying the difference between these two régimes,
virtually went by the board - doubtless because no proposa1 was made
which focussed a spotlight on the practical consequences of subsuming
minera1resources under the Exclusive Economic Zone.

129. At al1events, the sovereign rights to be exercised by the coastal
State for the purpose of exploring and exploiting the minera1resources of
submerged submarine areas havebeen expresslysubsumed under both the
régimeof theContinental Shelfand the régimeof the ExclusiveEconomic
Zone. Any concrete issue that may arise concerning the exploitation of
minera1resourceswithin the 200-milelimit willthus, for the timebeing, be
cloaked in legal ambiguity, for it will not arise bearing the label "Conti-
nental Shelf" or "made in the Exclusive Economic Zone". The only real-
istic attitude to adopt in the circumstances is to await, and meanwhile to
promote, the harmonization of the two régimes.And it is common sense
that, to that end, what is still malleable in one should be aligned on what
has taken firmshape in theother,rather than the reverse.Now the nature
and régimeof the Continental Shelf were solidlyestablished in 1958and
were confirmed by the 1969Judgment of the Court, and no doubt can
remain asto thecompetence to beexercisedbythecoastalState ;moreover
althoughthe outer limit of the areahas asyethardly been established, even

with the abandonment of the depth/exploitability test, it can at least be
said that a 200-miledistance test has found wideacceptance. On theother
hand, the nature of the Exclusive Economic Zone, and its régime,par-
ticularly in regard to the rights and duties of the coastal State, is still
comparatively unclear, but the 200-mile limit has been firmly estab-
lished.
130. It has therefore fittingly been suggested that the régimeof the
Exclusive Economic Zone should be aligned asfar as possible on that of
the Continental Shelf. But surely, it will be said, this has been done, for
Article 56 of the draft convention on the Law of the Sea reads, in para-
graph 3 :

"The rights setoutin thisarticle [theexclusiveeconomiczone],with
respect to the sea-bed and subsoil shall be exercised in accordance
with Part VI [the Continental Shelf]."

The concrete meaning of this provision is hard to seek, as Part VI of the
text, the chapter on the continental shelf, likewise simply provides for
sovereign rights for the purpose of exploring the submerged areas and
exploiting their resources, but does not specify how the rights set out in
Article 56,i.e., "sovereign rights for the purpose of exploring and exploit-
ing, conserving and managing [non-living]resources of the sea-bed and
subsoil", are to be exercised. Was it not, however, the intention of the
authors of the draft convention that Article 56, paragraph 3, should be
interpreted to mean that the régimeof the exclusive economic zone willincorporate,inprinciple,the wholerégimeof thecontinental shelf? If that

is indeed the case, and 1can see no other interpretation which would not
result in anomaly, then thereshould be no impediment to aligning what is
stillindecisiveabout the continental shelf concept, namely the question of
the extent of the area involved, upon what is clearly established in the
concept of the exclusiveeconomic zone, narnely the extent of the zone. 1
draw further consequences from this reasoning below. Suffice it for the
present to Saythat in my viewthe questionfacingthe Court could equally
well have concerned the Exclusive Economic Zone as the Continental
Shelf.

CHAPTERVI.TRENDS IN THE DELIMITATION OF THE CONTINENTAL
SHELF/EXCLUSIV EECONOMIC ZONE AT THE UNITED NATIONS
THIRDCONFERENCE ON THE LAW OF THE SEA

SectionI. VariousProposaisfor Delimitation

131. As delimitation was the subject of the present case, the Court
shouldin myopinion havedevoted considerablymore attention tothe way
the views of States on this specific topic have been evolving- a topic
strangely neglected by the Parties themselves. The main point in this
connection is that, in most of the relevant proposals presented at the
Sea-bed Cornmittee and UNCLOS III, the delimitation of the Exclusive

Econornic Zone and the Continental Shelf were dealt with together or in
virtuallyidentical terms. This may be demonstrated with the aid of some
quotations :

Australia andNonvay (A/AC.138/SC.II/L.36 - 16July 1973)

"A. Adjacent or opposite States shall use their best endeavours to
reachagreement on thedelimitation between them of their (economic
zones - patrimonial seas) and their sea-bed areas in accordance with
equitable principles.

D. Subjectto principle[s]A ...above,and unless thedrawingup of
another boundary isjustified by special circumstances,the boundary

shallbe anequidistant linein thecaseof adjacentcoastsand amedian
line in the case of opposite coasts."

Japan (A/CONF.62/C.2/L.3 1/Rev. 1 - 16 August 1974 ;Revision of
previous proposa1 : A/AC.138/SC.II/L.56 - 15August 1973) :
"3. (a) Where the coasts of two or more States are adjacent or
opposite to each other, the delimitation of the boundary of then- tinental shelf (the coastal sea-bed area) appertaining to such States
shall be deterrnined by agreement between them, taking into account
the principle of equidistance."

China (A/AC.138/SC.II/L.34 - 16July 1973) :

"II. Exclusive EconomicZone or Exclusive Fishery Zone
(8) The delimitation of boundaries between the econornic zones
of coastal States adjacent or opposite to each other shall be jointly
determinedthroughconsultationson an equal footing.Coastal States
adjacent or opposite to each other shall, on the basis of safeguarding
and respectingthe sovereignty of each other, conduct necessary con-
sultations to work out reasonable solutions for the exploitation,

regulation and other matters relating to the natural resources in
the contiguous parts of their economic zones.

III. ContinentalShelf

(5) States adjacent or opposite to each other, the continental
shelvesof each connectedtogether, shalljointly determinethe delim-
itation of the limits ofjurisdiction of the continental shelves through
consultations on an equal footing.
(6) States adjacent or opposite each other, the continental shelves
of which connect together, shall, on the basis of safeguarding and
respecting the sovereignty of each other, conduct necessary consul-
tations to work out reasonable solutions for the exploitation, regula-

tion and other matters relating to the natural resources in their con-
tiguous parts of their continental shelves."

Turkey (A/CONF.62/C.2/L.23 - 26 July 1974) :
"1. Where the coasts of two or more States are adjacent and/or

opposite, the continental shelf areas appertaining to each State shall
be determined by agreementamong them, in accordance with equi-
table principles.

2. Lnthe course of negotiations,the Statesshall take into account
al1the relevantfactors,including, inter dia, the geomorphological and
geologicalstructure of the shelfup to the outer limit of thecontinental
margin, and special circumstances such as the general configuration
of the respective coasts,the existence of islands, islets or rocks of one
State on the continental shelf of the other."

Turkey (A/CONF.62/C.2/L.34 - 1August 1974) :

"1. Where thecoasts of twoor more Statesare adjacent or opposite
to each other, the delimitation of the respective economiczones shall
be determined by agreement among them in accordance with equi- tableprinciples, taking into account al1therelevantfactorsincluding,
inter alia,the geomorphological and geological structure of the sea-

bed area involved and special circumstances such as the general
configuration of the respective coasts and the existence of islands,
islets or rocks within the area."
132. Someotherproposals, suchas those submitted by theNetherlands,
Romania, Kenya and Tunisia jointly and France, suggested a uniform
formula for thedelimitation ofboth thecontinental shelfand the exclusive

econornic zone :
The Netherlands (A/CONF.62/C.2/L.14 - 19July 1974)

"1. Where the determination of sea areas under Articles .. .(ter-
ritorial sea,continental shelf,econorniczone) by adjacent or opposite
States up to the maximum limit would resultin overlapping areas, the
marine boundaries between those States shall be determined by
agreement between them, in accordance with equitable principles,
taking into account al1relevant circumstances."

Romania (A/CONF.62/C.2/L. 18 - 23 July 1974) :
"Article1. The delimitation of al1 the marine or ocean space

between two neighbouring States shall be effected by agreement
between them in accordance with equitable principles, talung into
account al1 the circumstances affecting the marine or ocean area
concerned and al1 relevant geographical, geological or other fac-
tors.
Article 2. 1. The delimitation of any marine or ocean space shall,
in principle, be effected between the coasts proper of the neighbour-
ing States, using as a basis the relevant points on the coasts or on the
applicable baselines, so that the areas situated off the sea frontage of
each State are attributed thereto.
2. Islands which are situatedin themaritime zones to be delimited
shall be taken into consideration in the light of their size, their
population or the absence thereof, their situation and their geogra-

phical configuration, as well as other relevant factors.

Article 3. The delimitation of space between two neighbouring
States, whether they be adjacent or opposite, or whether they have
both of these two geographical characteristics simultaneously,shall

be governed by the method or combination of methods whch pro-
vides the most equitable solution. For example, neighbouring States
may use, exclusivelyor jointly, the geographical parallel or the per-
pendicular line from the terminal point of the land or river frontier,
equidistance, or the median line of the points closest to the coasts or
their baselines. The terminal point of a river frontier shall be con- sidered as the immediate confluence of the river and the sea, irre-
spective of whether the river flows into the sea in the form of an
estuary."

Kenya and Tunisia (A/CONF.62/C.2/L.28 - 30 July 1974) :
"1. The delimitation of the continental shelf or the exclusive eco-
nomic zonebetween adjacent and/or oppositeStates must be done by

agreement between them, in accordance with an equitable dividing
line, the median or equidistance line not being necessarily the only
method of delimitation.
2. For this purpose, special account should be taken of geological
and geomorphologicalcriteria, as well as of al1the special circum-
stances, including the existence of islands or islets in the area to be
delimited."
France (A/CONF.62/C.2/L.74 - 22 August 1974) :

"The delimitation of the continental shelf or of the economic zone
between adjacent and/or opposite States shall be effected by agree-
ment between them in accordance with an equitable dividingline, the
median or equidistance line not being the only method of delimita-
tion.
2. For this purpose, accountshall be taken, interalia,of the special
nature of certain circumstances,includingthe existence of islands or
islets situated in the area to be delimited or of such a kind that they

might affect the delimitation to be carried out."
133. No matter whether the equidistance line was suggested or not,
reference to equitable principles was found indispensable in these pro-
posals and "special circumstances", "relevant circumstances" or "al1the
circumstances" were almost always in point. This was well borne out in
the ensuing discussions.

SectionII. Negotiating Texts
1. Existence of two schoolsof thought

134. During the preparation of the ISNT in 1975,the followingprovi-
sion for the delimitation of the Exclusive Economic Zone/Continental
Shelf was suggested by the Chairman of the Second Committee :

'Yrticles 61/ 70

1. The delimitation of the exclusiveeconomiczone/thecontinental
shelf between adjacent or opposite States shall be effected by agree-
ment in accordance with equitable principles, employing, where
appropriate, the median or equidistance line,and taking account ofal1
therelevant circumstances." (UNCLOS III, OfficialRecords,Vol.IV,
pp. 162f.)It is to be noted that this text omitted al1reference to factors to be taken
into account as relevantcircumstances, as suggested in proposals submit-
ted by various delegates in 1973and 1974.It was nonetheless taken as it
stood for inclusion in the ISNT and RSNT and eventually became

Articles 74/83, paragraph 1, of the ICNT.

135. During the seventh session in 1978,as alreadynoted, seven nego-
tiating groups were set up, the seventh of which was charged with, in
addition to the definition of the outer limit of the continental shelf and
other matters, the problem of the "delimitation of maritime boundaries
between adjacent and opposite States and settlement of disputes". The
seventh group considered the following two main proposals, based on
different schools of thought :

(i) Informa1 suggestions by Bahamas, Barbados, Canada, Colombia,
Cyprus, Democratic Yemen, Gambia, Greece, Guyana, Italy, Japan,
Kuwait, Malta, Norway, Spain, Sweden, United Arab Emirates,
United Kingdom and Yugoslavia (joined later by Cape Verde,
Chile, Denmark, Guinea-Bissau,and Portugal) :

"1. Thedelimitation of the ExclusiveEconomicZonelcontinental
Shelf between adjacent or opposite States shall be effected by agree-
ment employing, as a general principle, the median or equidistance
line, taking into account any special circumstances where this is
justified." (NG 7/2.)

(ii) Informa1suggestions by Algeria,Bangladesh,Benin, Burundi, Congo,
France, Iraq, Ireland, Ivory Coast, Kenya, Liberia, Libyan Arab
Jamahiriya,Madagascar, Maldives,Mali, Mauritania, Morocco,Nica-
ragua, Nigeria, Pakistan, Papua New Guinea, Poland, Romania,
Senegal,Syrian Arab Republic, Somalian DemocraticRepublic, Tur-
key, Venezuela and Viet Nam :
"1. The delimitation of the Exclusive Economic Zone (or Conti-

nental Shelf) between adjacent or/and opposite States shall be
effected by agreement,in accordance with equitableprinciples taking
into account al1relevantcircumstancesand employing any methods,
where appropriate, to lead to an equitable solution." (NG 7/ 10.)
136. Mr. E. J. Manner, the chairman of the group, suggested the fol-
lowing formula by way of "informai suggestions" :

1. The delirnitation of the Exclusive Economic Zone/Continental

Shelf between opposite or adjacent States shall be effected by agree-
ment with a view of reaching a solution based upon equitable prin-
ciples, taking account of al1the relevant circumstances, and employ-239 CONTINENTAL SHELF (DISS.OP. ODA)

ing, wherelocalconditions do not make it unjustified,theprinciple of
equidistance." (NG 7/ 11 .)

In his report of 17 May 1978 on the work of the group, he stated as
follows :
"Like before, the positions of the delegations differed markedly
between those in support of the equidistance solution and those

favouringdelimitationinaccordancewithequitableprinciples ... No
compromise on thispoint didmaterialize during the discussions held,
although one may note, that thereappears tobe generalagreementas
regards two of the various elements of delimitation :first, consensus
seemsto prevail to the effect that anymeasure of delimitation should
be effected by agreement, and second, al1the proposals presented
refer to relevant or s~ecialcircumstances as factors to be taken into
account in the process of delimitation. As a whole, however, no
approach or formulation received such widespread and substantial
support that would offer a substantially improved prospect of a
consensusin the Plenary. On the other hand, the discussions clearly
indicated that consensus could not, either, be reached upon the
present formulation in the ICNT." (NG 7/21.)

137. Negotiations werecontinuedinthe resumed seventh session.With-
out coming to any positive conclusion,the chairman of thegroupstated on
6 September 1978 :

"Similarly, reference might be made to the fact that, in essence,we
havebeen consideringthe sameset ofcriteria tobe applied bothto the
economic zone and the continental shelf. One could, perhaps, also
examine whether somehnd of distinctionin this respect,asrelated to
the applicable criteria of delimitation,offered elements conducive to
Our search for a comparison.

It may also be worthwhile to notice that if no specific criteria are

agreed upon, a more simple approach might be explored. As we al1
may recall, there appeared to be, in Geneva, general agreement in
respect of two of the various elements of delimitation :first, consen-
sus seemed to prevail to the effect that any measure of delimitation
should be effected by agreement and second, al1the proposals pre-
sented referred to relevant or special circumstances to be taken into
account in the process of delimitation.

To transformthis into treatylanguage would amount toa provision
simplyprovidingthat the delimitation of the exclusiveeconomiczone
and thecontinental shelfbetween opposite or adjacent Statesshall be
effected by agreement taking account of al1 the relevant circum-240 CONTINENTAL SHELF (DISS. OP. ODA)

stances. If desired,ageneral reference to the rules ofinternational law
mightalso be includedwithout, however,elaboratingtheircontentsin
any further measure." (NG 7/22.)

His report, issued on 14September 1978(NG 7/24), contained a passage
on the delimitation problem which wasrepeated and enlargedupon in his
opening statement at the group's meeting of the eighth session, made on
26 March 1979. 1 quote from the latter :

"Delimitation Criteria

The basic positions relating to the criteria of delimitation are still
maintained by thesupporters of theequidistanceline on the onehand
and the advocates of equitable principles, on the other. None of the
proposals presented by the members of these two groups, seems to
offer a basis for a consensus. The same would also seem to apply to
any other formula which maybe consideredto givepreference to one
or another of the proposed delimitation criteria.

On the other hand, there seems to prevail general understanding,
that the four main elements reflected in the various proposals should
be included in the definition, namely (1)that any measure of delimi-
tation should be effectedby agreement ;(2)that al1relevant or special
circumstancesshould be taken into account ; that there should be (3)
a reference to equitable principles ; as well as (4) a reference to the
equidistance line.
As to the re-drafting of paragraphl of Articles 74/83,it has been
pointed outthat thecrucialproblem is,howto avoidanyclassification
or hierarchy of the elements concerned which could make the defi-
nition unacceptable to some delegations. In this regard the following
points of view would seem to have relevance.

The provision that the delimitation should be effected by agree-
ment, is as such, aprocedural rule, but it also speaks out the principle
that every (new) delimitation must be an agreed delimitation, and
consequently,that neithertheequidistanceline, nor anyotherline not
effected by agreement(or by other settlement), can be substituted for
an agreed (or othenvise settled) delimitation. Because of its 'leading
role' the provision concerning agreement might be mentionedfirst in
the definition, but this does not mean that the other elements wereof
less importance.

The three other elements emerge as material criteria which are to
form the basis for the agreement. The special or relevant circum-

stancesare, of course, of various kind and importance. It goeswithout
sayingthat localconditionsand circumstances are usually relevant to
the conclusion of delimitation as well as other territorial agreements.
Mentioned as one of the three 'material' delimitation criteria,special CONTINENTAL SHELF (DISS. OP. ODA)

circumstancesshould, however, be considered in relation to the two
others, partly as an independent criterion and partly as an element
having an effect upon the application of the other criteria. In certain
cases, special geographic or historical circumstances may be given
preference over the employment of the equidistance line. In some
others, again, special circumstances may serve as a basis for the
estimation of equitable principles. For these reasons special or rele-
vant circumstancesshould be includedin thedefinitiontogether with
the two other criteria, but without priority over them.

One of the most difficult problems the Negotiating Group has to
solve refers to the relation between equitable principles and the
equidistance line (some prefer to speak of a method, others of a
principle of equidistance) aselements of thedefinition of delimitation
criteria. Although it is generally admitted that delimitation agree-
ments should be concluded with a view of reaching an equitable

solution,and oftenthe employment of themedian or equidistance line
appears in accordance with equitable principles, the question of
'preference'has so far, proved too hard to be solved." (NG 7/26.)
138. In the course of the meeting of the negotiatinggroup, at the eighth
session,Mexicoand Peru submitted an informa1proposal,the revisedform
of which read as follows :

'Yrticles74and83
1. The delimitation of the exclusiveeconomic zone(or of the con-

tinental shelf)between Stateswith opposite or adjacent coasts shallbe
effected by agreement between the parties concerned, taking into
account [concurrently] al1relevant criteria and circumstances, and
applying either the equidistance or such other means as are appro-
priate in each specific case, in order to arrive at a solution [that is
satisfactory to the parties]in accordance with equitable principles."
(NG 7/36/Rev. 1 .)

On 24April 1979the chairman of the seventhnegotiatinggroup reported
on the work of thegroup to the Second Committee. Summingup a total of
41meetingswith 39workingpapersdistributedinthecourse of the group's
discussions, he said :

"Articles74/83 (1)
From the outset the negotiations werecharacterized by the oppos-
ing positions of delegations supporting the equidistance rule and
those specificallyemphasizing delimitationin accordance with equi-
table principles .. .[A]tthe beginning of the present session ... 1. ..
expressed the view that the necessary compromise might be within
reach if the Group could agreeupon a 'neutral' formulaavoidingany

classification or hierarchy of the elements concerned.242 CONTINENTAL SHELF (DISS. OP. ODA)

During thepresent sessionanumber ofcompromiseproposals were
made ...[However]the Group didnot succeedinreaching agreement
onany of the texts before it... [Plersonally 1doubt, whether, in view
of Ourlengthydeliberationsand taking into account the controversies
still prevailing, the Conference may ever be in a position to produce
a provision which would offer a precise and definite answer to the
question of delimitation criteria." (NG 7/39.)

In the light of the various suggestionspresented, the group chairman then
offered his own compromise text :

"The delimitation of the exclusive economic zone (or of the con-
tinental shelf)between Stateswithopposite or adjacentcoastsshall be
effected by agreement between the parties concerned, taking into
account al1relevant criteria and special circumstances in order to
arrive at a solutionin accordance with equitable principles, applying
the equidistance rule or such other means as are appropriate in each
specific case." (Ibid.)

He concluded, however, by pointing out that none of the proposed
amendments to the ICNT relating to the delimitation of the Exclusive
Economic Zone or the continental shelf had either secured a consensus
within the group or seemed to offer any substantiallyimprovedprospects
of aconsensusin the Plenav. Thus he did not find himself in aposition to
suggest any modification or revision of the relevant provisions of the
ICNT, and the ICNT/Revision 1 retained the same provisions as the
ICNT.

139. On 20 August 1979, at the resumed eighth session, the group
chairman replaced his persona1proposal, as quoted above, with the fol-
lowing, said to reflect the state of the negotiations:

"The delimitation of the exclusiveeconomic zone (the continental
shelf)between Stateswithopposite oradjacentcoastsshall beeffected
by agreement in accordance with equitable principles, taking into
account the equality of States in their geographical relation to the
areas to be delirnited, and employing, consistent with the above cri-
teria and subject to the special circumstancesin any particular case,
the rule of equidistance." (NG 7/44.)

The chairman of the seventhnegotiatinggroupsubmittedtothePlenaryon
24 August 1979the group report, which read in part :

As before, the discussion on delimitation criteria were character-
ized by the opposingposition of, on the one hand, delegations advo-
catingthe equidistance rule and, on the other hand, those specifically
emphasizingdelimitationin accordance with equitableprinciples. In243 CONTINENTAL SHELF (DISS.OP.ODA)

the main, also the arguments of the two sides remained as before,
referringto the concepts and expressions to be used in the provisions
concerned.At theChairman's meetingswith thesupporters of the two
differingopinions, it became apparent, that a consensus may not be
based upon a 'non-hierarchical' formulation only listing the basic
elements of delimitation ; an alternative, which earlierhad seemed to
have somesupport. Similarly,aconciseformulationproviding merely
that the delimitation would be 'effectedby agreement in accordance
with international law'did not receiveany particular sympathyfrom
either side. ..[Clertain newelements of delimitation,notably that of

the equality of States, were introduced in private consultations."

140. The negotiating group met only twice during the ninth session in
1980,but the chairman then made the following suggestion :

'Articles 74/83
1. The delimitation of the exclusiveeconomiczone/the continental
shelfbetween States with opposite or adjacent coasts shallbe effected
by agreement in conformity with international law. Such an agree-
ment shall be in accordance with equitableprinciples, employing the

median or equidistanceline, whereappropriate, and taking account of
al1circumstancesprevailingin the areas concerned." (UNCLOS III,
Official Records, Vol. XIII, pp. 77 f.)

In suggesting this text, thechairman summed up the group's discussions,
as follows :

"Delimitation Criteria
3. ... At the outset of the consultations with the Chairman, the
members of both interest groups were asked to indicate whether they
would be prepared to use as a basis of further discussions the Chair's
informa1 proposa1 on delimitation criteria issued at the end of the

eighth sessionindocument NG7/44 and containingas a newelement
of delimitation a reference to the equality of States in their geogra-
phical relation tothe areas to be delimited. However, such a reference
was found rather ambiguous by severaldelegations onboth sides and
even othenvise it proved apparent that the text in NG7/44 did not
enjoy support broad enough to offer improved prospects of a con-
sensus ...

7.... [Tlhefollo&ingisoffered as theChairman's finalconclusions
and suggestions relating to the work of negotiat'inggroup 7.
(a) During the negotiations no agreement could be reached on any proposed text concerning the criteria to be applied in the delimitation
of the exclusiveeconomiczone or the continental shelf.This conclu-
sion alsoapplies to the respectiveformulation ofArticles74 and 83in
the revised informa1composite negotiating text. While the provision
in the negotiating text has been supported by, or at least indicated to
prove satisfactory to, a number of States, it has been described as
quite unacceptable by the members of the group supporting the
median lineapproach. Becauseof thisfirm refusal byanotable part of
the members of the group to adopt the present formulation of para-

graph 1 of Articles 74 and 83it is clear that it cannot be considered a
text which could provide consensus on the issue.

(b) Owing to the obvious difficulties in agreeing upon a more
detailed definition, it hasbeen indicated by somedelegations that the
final solution might be found in a concise formulation merely iden-
tifying the two most fundamental elements of delimitation, that is,
that it shall be effected by an agreement and based on international
law. Such a provision might read asfollows :'The delirnitationof the
exclusiveeconomic zone/continental shelf between States with oppo-
site or adjacent coasts shall be effected by agreement in accordance
with international law.'Other delegations, however, have considered
that such a short formula would not provide adequate guidance for
the process of delimitation ...

(c). ..
...[TheChairman] felt it to be his dutyto make onefurther effort
to open the way towards an acceptable solution. Accordingly, the
Chairman prepared a revised text, as contained in the annex to this
report. Evenif the revised text did not as a wholemeet the position of
several delegations it might, however, prove useful to be taken into
account in the completion of the final consensus package of the
Conference." (Ibid.)
The collegium agreed that this text suggested by the chairman of the

seventh negotiating group should be incorporated in the second revision,
thus becoming a provision of the ICNT/Revision 2.
141. At the plenary meeting on 28 July 1980,during the resumed ninth
session, the delegate of Ireland introduced a letter dated 30 May 1980
addressed to the President of UNCLOS III by the countries sponsoring
NG 7/ 10,in whichitwas stated that theycould not accept theformulation
of Articles 74/83 (1) of the ICNT/Revision 2 because -

"The new formulations as they appear in Articles 74 (1) and 83(1)
of the Informa1 Composite Negotiating Text/Revision 2 'did not
emerge from negotiations themselves' nor did those formulations
receive 'the widespread and substantial support' required in plenary to offer a substantially improved prospect of consensus." (A/
CONF.62/SR. 130,p. 18.)

Thecountries who signed thisletter consideredthat "the newformulations
will not be helpful for future negotiation". It is reported that the seventh
negotiating group has not met since the resumed ninth session of

UNCLOS III in the summer of 1980and that no actionhas been taken by
the chairman of the group. At the generalcornmittee meeting on 28 August
1980,on the question of delimitation of maritime zones, the President of
UNCLOS III stated that -
"A satisfactorysolution ... had not been found but it was gratify-
ing to note that the two main interest groups had shown a genuine

willingness to arrive at a mutually acceptable comprornised text."
(A/CONF.62/Bur/SR.57, p. 2.)

Theprovisionsincludedin the ICNT/Revision 2remainunchangedin the
draft convention(Informa1Text) that is, the ICNT/Revision 3 of 22 Sep-
tember 1980.

142. Articles 74/83, paragraph 1, in the wording quoted above, re-
mained part of the text until August 1981.On 28 August 1981,the verylast
day of the resumed tenth session,the President of UNCLOS III (President
T. B. Koh, who had succeeded the late MI. Amerasinghe in the previous
session) introduced a document entitled "Proposa1 on Delimitation" :

"During his consultations, he had gained the impression that the
proposa1enjoyed widespread and substantial support in the twomost
interested groups of delegations,and in the Conferenceas a whole."
(A/CONF.62/SR.154, p. 2.)

According to the introductory note to the draft convention

"The members of the collegiiimconcluded, on the basis of consid-

eration ofA/CONF.62/WP. 11in the Plenary at the 154thmeeting on
28 August 1981,that the criterionin A/CONF.62/62 had been satis-
fied." (A/CONF.62/L.78.)
The groups of sponsors of documents NG 7/2 and NG 7/ 10both stated
through their respectiverepresentatives that the suggestion of the Presi-
dent would be agreeableto them, but understood that the United States,
China, United Arab Ernirates, Libya, Portugal, Venezuela, Qatar, Iran,
Oman,Kuwait,Egypt, Bahrein and Israelhad expressed the viewthat time
should be givenfor examination of thePresident'sproposal. However,as aresult of the meeting of the collegium, the text proposed by the President
was included in the draft convention, again on the very same day, and
reads as follows :

'Yrticles 74/83. DelimitationoftheExclusiveEconomicZone/ Con-
tinental Shelf Between States with OppositeorAdjacent Coasts

1. Thedelimitation of the exclusiveeconomiczone/thecontinental
shelfbetweenStates with opposite or adjacent coasts shallbe effected
by agreement on the basis of international law as referred to in
Article 38of the Statute of the International Court ofJustice,in order
to achieve an equitable solution."

2. Significaan of Articles 74/83 of the draft convention

143. Setting aside thequestion of thestanding of atext suggestedby the
President of UNCLOS III only oneday before the close and incorporated
on the very last day of the tenth session, it is difficult to foresee the
potential nature and limits of its effects.What isclear from a surveyof the
drafting history of this specific provision is that the efforts of the nego-
tiating group centred on an attempt to discover a formula that would be
satisfactory to delegates with not only differentbut sometimes contradic-
tory viewson the delimitation of the continental shelf and of the exclusive
economiczone. Even in 1978there was already aclearopposition between
the "equidistance" and the "equitable principles" schools of thought. It
could be pointed out that Articles 74/83 of the draft convention on the
Lawof the Seaform acatcha11provision that ought to satisfyboth, and that
is indeed its merit. Given, however, the difficulty of deriving any positive

meaningfrom theseprovisions, it would seemthat thesatisfaction must be
essentiallyof anegativekind, i.e.,pleasurethat theopposing schoolhas not
been expressly vindicated.
144. Firstly,the suggestionthat thedelimitation of thecontinental shelf
shouldbe effectedby agreement simplyrepresentstheprocedural aspect of
theproblem,and indicatesthat anyunilateral claimfor thedelimitation of
the continental shelf would not be regarded as valid under international
law. This idea is not unlike Article 6 of the 1958 Convention, and had
already received the support of the two opposing schools of thought in
1978.However, its effect is merely to confirm that a general rule for the
conduct of inter-Staterelations is applicabletothe subject of delimitation.
Secondly,the simplereference to "the basis ofinternational lawasreferred
to in Article 38 of the Statute of the International Court of Justice" does
not furnish any practical assistancetowards a solution, in the absence of
any more specific designation of which principles and rules from out the
entire panoply of customary, general,positive and conventional law are of
particular significance.Thirdly, theidea of an equitablesolution,although
not specifically mentioned in Article 6 of the 1958Convention, lay at the
basis of that provision, but the draft convention does not supply anyanswer to thequestion of what theequitablesolutionis, and no method for
reachng such an equitable solution is specified.

145. Despite theresultant vagueness,there isonefirm conclusion which
hasalready been hinted at above, but whichnow stands fullyconfirmed by
theidentity ofArticles 74and 83,anidentity whicheventhe morecomplex
earlier formulae strove always to maintain. This conclusion is that the
principles and rules of international law applicableto the delimitation of
the continental shelf will not be different from those applicable to the
delimitation of the exclusive economic zone. This of course works both
ways,in that one must examinewhetherprinciples said previously toapply
to delimitation of thecontinental shelfareadaptable todelimitation of the
Exclusive Economic Zone, and also see what features of the Exclusive
Economic Zone concept are instructive in relation to delimitation of the
shelf.

CHAPTER VII. PRINCIPLE SND RULES FOR THE DELIMITATIO NF THE
CONTINENTASL HELF/EXCLUSIV ECONOMIC ZONE

Section 1. Introduction

146. To recapitulate, what 1hope to have made clear in the foregoing
chapters is as follow:
First, for the purpose of indicating the principles and rules of interna-
tionallaw applicableto the delimitation of the continental shelf between
Tunisia and Libya, theCourt should not have taken the relevantprovisions
of the 1981draft conventionon the Law of the Sea at their face value, on

the soleground that they had been formulatedasa result of the consensus
formula, special procedures and "package deal" of UNCLOS III, even
though the Special Agreement had requested it to take account of the
"tendances récentes admises" or "new accepted trends" at that Confer-
ence.TheCourtshould haveexamined more thoroughly theprogress of the
discussions underlyingthose provisions and consideredthe trends in the
law of the sea for the past few decades in a much wider perspective.

Secondly, the régimeunder which the coastal State enjoys sovereign
rights for exploring the continental shelf and exploiting its natural
resources had become firrnly established by the late 1960son account of
the 1958Conventionon the Continental Shelf,but the outer limit of that
area was stillleft ambiguous. For the delimitation of the continental shelf
between adjacent or opposite States the Court i1969indicated the law

applicable in the late 1960s.Sincethen, while the right of thecoastal State
exercisable overthecontinental shelfhas remained constant,the suggested
outer limit has fluctuated. The application to the deep ocean floor of the
concept of the cornmon heritage of mankind, which had been emerginginthelate 1960s,hashad agreatimpact on viewsabout that limit. Despite the
possibilityopened up by the exploitabilitycriterion in the 1958Conven-
tion that the continental shelf might have been expandedindefinitely,this
new concept has been successful in calling a halt to this process. The
precise line at which thehalt has been called remains, however,a matter of
controversy. While some landlocked or geographically disadvantaged
States have wished to keep the "common heritage of mankind" area as
wideas possible, some coastal States havepressed for incorporation of the

continental margin and rise, where petroleum resources could be dis-
covered, into the régimeof the continental shelf, thus, essentially, leaving
the exploitation of hard minera1 resources to the comrnon heritage of
mankind. The suggested provision concerning the outer limit of the con-
tinental shelf which has emerged at the latest stage of UNCLOS III seems
to have been simply apolitical compromise, and can hardly be regardedas
reflecting customary international law. The matter will require further
elaboration or negotiationamongStates, aswellassomerepeatedpractice.
Yet noteworthy as of great importance is the changein the concept of the
continental shelf arising out of the universal introduction of the 200-mile
distance, which may certainly override the traditional concept of "con-
tinuity" or c'contiguity"that has been supplemented,inparticular through
the 1969Judgment, by the notion of natural prolongation.

Thirdiy,the longstandingpractice of sedentary fisheries was frequently
relied on during the proceedingsfor the purpose of confirmingthe appur-
tenance of certain areas to the continental shelf. Apart from the question
whether sedentary fisheries as such relate to resources of the continental
shelf,not onlyscholarly viewsandpast practice but alsothedrafting of the
1958GenevaConventionon the Law of the Seaafford no groundsfor any
assertion that the past practice of sedentary fisheries could found a legal

claim to the continental shelf, the object of the rights to which has been
defined from the outset in terms of the exploitation of minera1resources.
Admittedly, the longstanding practice of sedentary fisheries can form a
basisfor a title to hstoric waters. Such title, whch may overridea claimto
the continental shelf or exclusive economic zone, should not, however,
covervastmaritime areaswhich,onaccount ofsuchgeographicalsituations
as the absence of embracingcoastlines, do not qualifyforclassificationas
waters of that kind.

Fourthiy,the significance of the emergence of the new concept of the
exclusiveeconomic zonecannot be over-emphasized.While the régimeof
thecontinental shelf,asregardsboth its conceptand thegeographicalarea
concerned, was gradually established to meet a specific need, that of the
exclusive economic zone is one which, without any particular reason for
the extent of 200miles involved, suddenlygained universal support in the
early 1970s.But, inthe nature of things,the costof such supporthas been a
certain blurring of the issues. While in the case of the continental shelfmany exchanges of scholarly viewspreceded the adoption of the régimeof
the 1958Conferenceon the Law of the Sea, the concept of the exclusive
economic zone required only one or two years to reach the point of no
return, without being subjected to anysustainedscholarly discussion from
thetheoreticalpoint of view.Althoughnodelegate seemstobe recorded as
everhaving challenged the concept of the exclusiveeconomic zone or cast

doubtonits 200-milelimit,the veryconcept and theoperation ofits régime
are still not clear-cut, and a more scrupulous scrutiny will be required
before it can be regarded as part of the establishedprinciples and rules of
international law. The ExclusiveEconomic Zone, which began as a fish-
erieszone, is nowdesigned to coverthe sovereignrights of thecoastalState
for the exploitation not only of living resources but also of minera1
resources. The incorporation of minera1resources into the régimeof the
Exclusive Economic Zone appears strange in that most of the provisions
dealing with that zonein the draft convention are entirelyirrelevant to the
exploitation of mineral resources, and above al1because the draft conven-
tion retains the régimeof the Continental Shelf, concerned with the
exploitation of such resources, in parallel with that of the Exclusive Eco-
nomicZone. As 1 have endeavoured to show in detail, this trend towards
the absorption of the continental shelf régimeinto that of the Exclusive
Economic Zone is too pronounced to be ignored. Hence the Court would
have shown realism in paying more serious attention to the question
whether a case submitted as one of Continental Shelfdelimitation wasnot
also a case implying the delimitation of the Exclusive Economic Zone.
Fifthly, throughout thenegotiationsin UNCLOS III thedelimitation of
the Exclusive Economic Zone and the delimitation of the Continental
Shelf,despite separate discussion of thequestion of outer limits,weredealt

with together, and no doubt was expressed that the same principles and
rules should be applicable in each case. It can be argued, of course, that,
althoughtheprinciplesapplicable to delimitation of theContinental Shelf
and delimitation of the Exclusive Economic Zone may be the same, the
practicalapplication of thoseprinciplesin eachcasemight be different as a
result of applyingthe sameprinciples in different frameworks. If not, what
ought to have been considered by the Court was whether criteria of dis-
tance,beingintrinsic to the ExclusiveEconomicZoneand alsofavoured by
the latest concept of the continental shelf (which sounds the knell of both
the depth and the exploitability tests), ought not to play a role in the
common delimitation of the area.

SectionII. The Status of the Third State in the Caseof Delimitationof the
ContinentalShelf

147. Although the solution which 1personally favour has at least the
merit, as will be seen, of largely obviating the need to define the area
concemed in the delimitation, 1believe that it is appropriate for me toaddress certain aspects of this problem which rnay affect the task of
delimitation. Among these is the situation of third Statesin relation to the
geographicalclaims of Parties to thedispute. Forit is in any event difficult
to define in advance the disputed areas in a case concerned with the
delimitation ofthecontinental shelfofadjacentStates,but this difficultyis

al1the greater when, as in the present case, the sea area whichboth Parties
face is also surrounded by other States. A map of the central Mediterra-
nean clearly indicates that any area of the sea related to the present case
fallswithinthe 200-miledistancefrom the Coast,and,looking at the places
where the respective interests of Tunisia and Libya can be seen, one can
readily recognize that a fewother States rnay be similarlyinterested in the
area concerned in the case.
148. In this connection 1 feel bound to reiterate a passage from the
opinion I appended to the Court's Judgment of 14July 1981on Malta's
application for permission to intervene :

"22. If the 'area'as to which therelevantcircumstances to be taken
into account by the Court is to be simply an aggregate of the 'area'
appertaining to Libya and the 'area' appertainingto Tunisia, sothat it
doesnot affectanythird Statebut onlyconcems thesetwoStates,how

can one identify that whole 'area' without possessing any precise
definition of that aggregate ? 1s it not logical to suggest that when
these two States mention 'the relevant circumstances which charac-
terize the area', this 'area' must necessarily havea different conno-
tation from what is implied by the mere aggregate of the 'area'
appertaining to Libya and the 'area' appertaining to Tunisia to be
delirnited asaresult of theCourt'sJudgment ? Thisisborne out by the
useof thewords 'propres a larégion' (not'zone')in Tunisia'scertified
French translation of the SpecialAgreement, where the English had
'which characterize the area'. Certainly the delimitation of the two
'areas' is essentially a bilateral matter to be settled by agreement
between Tunisia and Libya. That delimitation ought not to intrude
upon the area-to-be of thecontinental shelfof anythird State. Yetis it
possible toassumethat whenaccount is taken of thecharacteristics of
theareaasa whole,an areain which athird State rnayhavesome legal
title to a portion of continental shelf, there willbe no legalinterest of
such a State whichrnaybe affected by the decision of the Court aimed

at the principles and rules of international law applicable in that
area ?Furthermore, is it proper to state that no conclusions or infer-
ences rnay legitimately be drawn from the findings or the reasoning
with respect to rights or claims of other States not Parties to this
Tunisia/Libya case (Judgment, para. 35) ? If any consideration is
givenby theCourt to theeffectwhich,for example,the existenceofan
island or islands in this 'area' rnay have in the delirnitation of the
continental shelf between Tunisia and Libya, how can Malta remain
unaffected by a decision of the Court indicating the principles and
rules therein involved ? CONTINENTAL SHELF (DISS.OP.ODA)

23. Without scrutinizingthe details of the case, the Court cannot
now define the 'area'of which the relevant circumstances to be taken
into account by the Court are characteristic. The Court cannot take a

position in advance in thisrespectwithout dealing with the principal
case.Sincethis 'area'actuallyisnot limited to the expansesin whichit
is evident that no third State may have a claim, the possibility or
probability of an adverse effect upon a third State is not excluded.
Theoretically,anumber of States may have a claim to thecontinental
shelfin the 'area',invoking anyjustification which theymay prefer for
this purpose, because the criteria for delimitation of the continental
shelfhavenot yetbeen firmlysettled.Yet, in thelightofdevelopments
in the law of the sea, it would not have been difficult for the Court to
exercise its discretionary powers under Article 62, paragraph 2, and
allow the intervention of the third State particularly concerned,
depending on the Court's evaluation of the imminent and grave
interests prima facie at stake and consideringthe relevantfactors. In
this case, 1cannot agree that Malta, which prima facie belongs to the
very 'area'in issue,willescape any legal effect of thejudgment of the
Court. This distinguishes Malta from al1other countries (except per-

haps a few neighbouring States) many of which may of course be
interested in abstractoin thejudgment of the Court concerning the
interpretation of the applicable'principles and rules of international
law'."

2. Island States

149. For reasons which1shallsubsequently make clear,it ispertinent at
ths stage to seewhether,in the present state of the law of the sea, there is
anything special in the status of island States where the continental shelf
and exclusiveeconomic zone are concerned. Thestatus ofislandStateshas
not been given much considerationthroughoutthedevelopment ofthe new
law of the sea during the past three decades. The 1958 Convention on the
Territorial Seaand the ContiguousZone contained a provision on islands
(Art. IO),and so did that on the Continental Shelf :

'Article1

For the purpose of these articles,the term continental shelf is used
as referring ...

(b) to the sea-bedand subsoil of similar submarine areas adjacent to
the Coastof an island."This specific provision was the one newly inserted at the 1958 Geneva
Conference. In fact, Article 67 of the 1956draft of the International Law
Commission contained no reference to islands, but paragraph 10 of its
commentary reads as follows :

"The term 'continental shelf' does not imply that it refers exclu-

sively to continents in the current connotation of that word. It also
covers the submarine areas contiguous to islands."

It was the Philippines which introduced into the text of the convention
the idea expressed in this commentary. The Philippines proposa1 (A/
CONF.13/C.4/L.26) was adopted by the Fourth Committee by 31-10-25
votes. The Phillipines delegate did not have a chance to explain the rea-
soning behind this proposal, but it might have been asked whether this
paragraph wasnot redundant, sincetheactualdefinition of thecontinental
shelfdid not imply, despite the adjective, that it must be the shelf adjacent
not to an island but on/' to a continent.

Neither of the two provisionsin the Geneva Conventions were drafted
particularly to cover an island State. Yet there was no doubt under the
Geneva Conventions on the Law of the Sea that an island, whatever its
status, may have a territorial sea and a continental shelf.
150. The only provision specifically relevant to an island in the 1981
draft convention isArticle 121,the previousprovisionsfound in Article 10

of the Convention on the Territorial Sea and the ContiguousZone and in
Article 1of the Convention on theContinental Shelfhavingbeen replaced
by this article, which reads as follows :

'Article 121. Régimeof Islands
1. An island is a naturally formed area of land, surrounded by
water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the
contiguous zone, the exclusive economic zone and the continental
shelf of anisland aredetermined in accordance with theprovisions of

this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life
of their own shall have no exclusive economic zone or continental
shelf."

No suggestionwas evermade, and no idea everpresented, to implythat an
island State should be distinguishedfrom other coastalStates or from any
non-independent islands or groups of islands. Thus the "new accepted
trends" contain no pointers on the subject and provide no ground for
modification of my above-quoted opinion. It remainedtheCourt's duty to
avoidformulatinganyjudgment affecting areaswhich mightfa11withinthe
purview of Malta's interests. CONTINENTAL SHELF (DISS.OP. ODA)

Section III. Equitable Principles

1. Equitable apportioning
151. The present case was different in substance from most disputes

concerningland boundaries, or the sovereignty over an island, in which
what is required of the organ entrusted with deciding the matter is to
ascertain whether this or that claim to a particular boundary or island is
historicallyjustified or not. Inuch cases, the decision to be made by that
organ is oriented towards finding and ascertaining,but notdetermining de
novo, the sovereignty of one party in areas of land or on an island. In
contrast, the dispute in the present case concerned sea-bed areas which
both Tunisia and Libya would have been entitled to claim under interna-
tional law, for, despite the continuinguncertainty as to the outer limit of
the continental shelf, the coastal State, under the new concept of the
continental shelf, is certainly entitled to claim sea-bed areas as far as a
distance of 200miles from the Coast.Furthermore, despite thecontinuing
uncertainty as to the precise régimeof the exclusive economic zone, the
coastal State is entitled, within the universally agreed 200-milelimit, also
to claimsea-bed areas for the purpose of exploitation ofminera1resources.
Thus in the caseof twooppositeStates whosecoasts are lessthan 400miles

apart, there will be an area where each will have an equally valid
claim.
152. Furthermore, neither under the new concept of the continental
shelf nor under that of the exclusiveeconomic zone is the lateral extent of
the sea-bed areas appertaining to the coastal State restricted apriori, so
that both Tunisia and Libya were in principle entitled to claim any area
within a 200-mileradius of any point on their coastlines as appertainingto
their respective continental shelf or exclusive economic zone. In other
words, given the adjacency of the two States, the areas which both were
entitled to claim certainly overlapped. Hence no line which could have
been suggestedby theCourt would havebeen an absolute linein the sense
of being the only possible legal line, deviation from which would mean
encroachmentupon the rights possessedabinitioby oneparty or theother.
Thus what the Court was requested todo was in effectnot to establishthe
greater cogency of one claim over another, but only to indicate the prin-
ciples and rules of international law for dividing the area which both

parties might claim under the concepts of the continental shelf and the
exclusive economic zone.
153. To pose theissuein thesetermsisinevitably to evokethe concept of
"a just and equitable share", which was not acceptable to the Court in
1969.To be quite clear about the background to this rejection, it will be
advisable to quote the relevant passages in extenso :
"18. ... It considers that ... its task in the present proceedings
relates essentially tothedelimitationandnot to theapportionment of
the areas concerned,or their division into converging sectors. Delim-

itation is a process which involves establishing the boundaries of an areaalready,inprinciple,appertaining to thecoastalState and not the
determination de novoof such an area. Delimitation in an equitable
manner is one thing, but not the same thing as awarding ajust and
equitable share of a previously undelimited area, even though in a
number of cases the results may be comparable, or even identical.
(I.C.J. Reports 1969, pp. 21 f.)

20. It follows that ... the notion of apportioning an as yet unde-
limited area, considered as a whole (which underlies the doctrine of
thejust and equitableshare) isquite foreign to, and inconsistent with,
thebasicconcept of continental shelf entitlement,according to which
the process of delimitation is essentially one of drawing a boundary
line between areas which already appertain to one or other of the
States affected. The delimitation itself must indeed be equitably
effected, but it cannot have as its object the awarding of an equitable
share, or indeed of a share, as such, at all, - for the fundamental
concept involved does not admit of there being anythingundivided to
share out. (Ibid., p. 22.)

39. ...From this notion of appurtenance is derived the viewwhich
... theCourt accepts,that thecoastal States'rights existipsofactoand
ab initio without there being any question of having to make good a
claim to the areas concerned, or of any apportionment of the conti-
nental shelf between different States. This was one reason why the
Court feltbound to reject the claim of the Federal Republic ... tobe
awarded a 'just and equitable share' of the shelf areas involved in the
present proceedings." (I. C.J. Reports 1969,p. 29.)

The Court did not accept the concept of apportioning "justand equitable
shares", and 1agree in the sense that the sea-bedarea is not meant to be

parcelled out like so may fiefs. However, the Court's rejection of this
notion in 1969 seems to have been very heavily dependent on its de-
velopment of the doctrine that "the rights of the coastal Statein respect of
thearea of thecontinental shelf ... existipsofactoand abinitio".The Court
seems to have found it an implicit consequence of this doctrine that the
areas of continental shelf falling under thejurisdiction of each party were
predetermined ab initio,each being mutally exclusiveof the other, so that
thefunction of thedelimitation of thecontinental shelfconsisted "merely'7
indiscerningandbringing to light alinealreadyinpotential existence.The
test of natural prolongation, and certain other features of the Judgment,
weredeveloped precisely as an aid to the performance of that very special
and difficult task.
154. Now, whatever the necessity of the Court's logic in the 1969con-
text - and here it must be bornein mind that it wasimpelled to make some
pronouncement on the"equitable share" contention by itspresenceamong 255 CONTINENTAL SHELF (DISS.OP. ODA)

the Submissions - 1am fullypersuaded, for reasons arnply developed in
earlierchapters, that it has now been overtaken by events.There was thus
insufficient reason for the present Court, in 1982, to be inhibited from
realizing that the present delimitation was simply a question of equitably
dividing, or apportioning, between the Parties, by means of ajustifiable
line of demarcation, those submarine areas which either couldpotentially
have claimed.

2. Geographicalequity

155. The concept of "equity" is often suggested as applicable to any
case of dividing or apportioning and the case of delimitation of the con-
tinental shelf or the exclusiveeconomiczone isno exception. The Truman
Proclamation of 1945,the first officia1document in this field, suggested,
for the boundary of the continental shelf between neighbouring States,
determination with the States concerned in accordance with equitable
principles,and the eleventh-hour provision of the draft convention on the
Law of the Sea provides in similar terms that "delimitation ... shall be
effected ... in order to achieve an equitable solution". 1am in agreement
with theJudgment that an equitablesolutionhas to be achieved.However,
in saying that "delimitation is to be effected in accordance with equitable
principles" (para. 38),the Court cannot be regarded as suggesting princi-
ples and rules of international law, for it is simply stating a truism. Even

worse, it is simply telling the Parties what they already know and have
explicitly incorporated as a rider to their questions. The problem is what
principles and rules of international law should apply in order to achieve
an equitable solution.
156. Although simple insistence on an equitable solution is not very
helpful, since "equity" is a blanket concept susceptible of divers interpre-
tations,yet "equity" stillremainsthe prevailing principlein delirniting the
continental shelf and the exclusive economic zone. How should it have
been applied in the circumstances of the present case ? The Parties have
asked the Court to take account of al1the relevant circumstances which
characterize the area. For the Court simply to have indicated that they
should do the same would obviously have been no genuine answer.

157. Certainly various political, socialand economicfactorscould have
been suggested for this purpose, and indeed the Judgment has briefly
referred to them : the size of the territories and their population, the

distribution of natural resources, the degree of development of the eco-
nomy and industry, etc., of the respective Parties. However, these factors
could not lead to a solution agreeable to the Parties because ideas of the
way in which they should be taken into account may well Varybetween
them. It could be asked, for instance, if theadvancedindustry or economy
of one State shouldjustify its being given wider areas of the continental
shelfor exclusiveeconomiczone than the other State, or whether the latter
should be given much wider areas to compensate for its poverty. It could256 CONTINENTAL SHELF (DISS.OP.ODA)

also be asked whether the ratio between the two States' areas of land
tenitory should in equity ensure the sameratio between theirsea-bed areas
or whether, on the contrary, an inverse ratio of sea-bed areas would be
more equitable. Such questions involve global resource policies, or basic
problems of world politics whch not only could not have been solved by
thejudicial organ of theworld communitybut stray wellbeyondequity asa

norm of law into the realm of social organization.

158. By the same token, the theory of the "hinterland" had also to be
excluded. The relevance of natural features such as mountains or rivers
appearsprima faciemoreplausible, as they haveoften been determinative
in the fixing of land boundaries. If that is so, however, it should not be
forgotten that this circumstance is bound up with traditional problems of
communication and defence to which submarine topography scarcely
givesriseat all. Besides,suchfeatures seemedchieflyrelevant when the test
of natural prolongation held sway, and even then their relevance was
subject to theoverridingtest of leading to anequitablesolution. To seekin
them assistance for the application of "equitable principles" - an expres-
sion which, by the way, is undoubtedly taken in Anglo-American law as

synonymous with "principles of equity" - would surely have been to put
the cart before the horse,the more so in that their relevancemay often be
interpreted in divergent ways. Furthermore, the direction of the land
boundary, for similar reasons, also affords no sure guide to an equitable
solution if the boundary follows a natural feature, and a fortiori if it does
not - whichisnot to Saythat theprolongation of theland frontier may not
in specific cases provide a solution acceptableto the States concerned.

159. In sum, the inequality of geography is a fact of the world, nature
cannot be refashoned, and the Court has no competence to guess at or
initiate any future policy of world socialjustice, goingbeyond the existing

principles and rules of international law. More especially, it should be
noted that, during the formulation of the concept of the exclusive eco-
nomic zone at UNCLOS III, the idea of granting some benefits to land-
locked and geographically disadvantaged countries with regard to the
exploitation of fishery resources in the exclusiveeconomic zone of neigh-
bouring States was widely agreed ;but that such benefits have never, on
theother hand, been offered suchdisadvantagedStatesfortheexploitation
of minera1resources. In its 1969Judgment the Court properlypointed out
the following :

"91. Equity doesnot necessarilyimply equality.There can neverbe
any question of completelyrefashioningnature, and equity does not

requirethat a State without accessto the seashould be allotted anarea
of continental shelf, any more than there could be a question of
renderingthesituation of aState withan extensivecoastline similarto that of a State with a restricted coastline. Equality is to be reckoned
within the same plane, and it is not such natural inequalities as these
that equity could remedy ...It is therefore not a question of totally
refashioninggeographywhatever the facts ofthesituation but, givena
geographical situation of quasi-equality as between a number of
States, of abating the effects of an incidental special feature from
which an unjustifiable difference of treatment could result.
92. It has howeverbeen maintained that no one method of delim-
itation can prevent such results and that al1 can lead to relative
injustices.This argument has in effect already been dealt with. It can
only strengthenthe viewthatit isnecessary to seeknot one method of
delimitation but one goal. .. As the operation of delirniting is a
matter of determining areas appertaining to differentjurisdictions, it
is a truism toaythat the determination must be equitable ;rather is
the problem above al1one of defining the means whereby the de-
limitation can be carried out in such a way as to be recognized as
equitable." (Z.C. Jeports 1969,pp. 49 f.)

The Court was, however, quick to deny the merits of the equidistance
principle in paragraph 101(C), suggesting instead :
"(1) delimitation is to be effected by agreement in accordance with
equitable principles, and taking account of al1the relevant cir-
cumstances, in suchawayasto leaveas much aspossible to each
Party al1those parts of the continental shelf that constitute a

natural prolongation of its land territory intoand under the sea,
without encroachment on the natural prolongation of the land
territory of the other.(Zbid p.,53.)
160. In the drawing of maritime boundaries,the geography of the areas
concerned has always played a very important role ever since the Inter-
national Law Commissionfirst started dealingwith the lawof the sea,and
rarely has anyother elementbeenconsidered afactor affectingit.The 1958
Convention suggested the formula of application of the principle ofequi-
distancefrom the coasts "unless another boundary line isjustified" :and
the successivenegotiating texts of UNCLOS III, the RSNT, theISNTand
the ICNT, al1 spoke of "applying, where appropriate, the median or
equidistance line and taking account of al1the relevant circumstances". 1
find that these suggestions relate simply to the geography of the specific
areas concerned. In addition, it cannotbe over-emphasizedthatin the new
concept of the continental shelf as well as in the exclusiveeconomic zone
thedistance criterion now plays a decisivelyimportant role in defining the

expanse of the respective areas, thus also qualifying their very nature. 258 CONTINENTAL SHELF (DISS.OP.ODA)

Section IV. Proportionality as a Function of GeographicalEquity

161.In seekingthe correspondencebetweenequity and geography in the
divisionof a sea-bed area, it goeswithout saying that the expanse allocated
to each State concerned does not necessanly have to be equal. If we seek
"equity" and not "equality" in this respect,what hasbeen thought of,even
implicitly, as governing such equity ?The concept of equity must in this
context imply certain criteria which are related to some geographical
concept. Tomymind,the lengths and relativepositions ofthe coastsfacing
the sea-bed areas concerned have been implicit in the concept of equity in

this respect. In this connection the Court, in its 1969Judgment, properly
stated :
"98. A final factor to be taken account of is the element of a
reasonable degree of proportionality which a delimitation effected
according to equitable principles ought to bnng about between the
extent of the continental shelf appertaining to the States concerned

and the lengths of their respectivecoastlines, - these being measured
according to their generaldirection in order to establish thenecessary
balance between States with straight, and those with markedly con-
cave or convex coasts, or to reduce very irregular coastlines to their
truer proportions." (I.C.J. Reports 1969, p. 52.)
TheCourt alsomentioned inparagraph 101(D), asafactor tobe taken into

account in the course of negotiations :
"(3) the element of a reasonable degree of proportionality, which a
delimitation. .. ought to bring about between the extent of the
continental shelf areas appertaining to the coastal Stateand the
length of its coast measured in the general direction of the
coastline .. ."(Ibid., p. 54.)

When equity in the division of offshore areas has been the topic of dis-
cussion, the length of the coast of each Statehas never been disregarded,
and itisfurther important to notethat the length ofcoastlinein thisrespect
isnot the lengthmeasured in accordancewith the detailed configuration of
the coast, but that measured in the general direction of the coast, as
suggested in the 1969Judgment. Whether the line of delimitation selected
isequitable ornot must alwaysbeverifiedby the testofproportionality, or,

to put it the other way round, this concept is in principle useful in the
verification of geographical equity.
162. The concept of proportionality as between the areas and the
lengths ofcoast isnot meant to determine anyconcreteline ofdemarcation
for the delimitation of the area, for the number of lines capable of pro-
ducing the same proportion is obviously lirnitless.No, it simply affords a
certain basis for consideration ofwhether any suggestedlinewould satisfy
the requirement of equity. This seems to have been very properly pointed
out by the Decision in the Arbitration of 1977between the United King-
dom and France on the delimitation of the continental shelf,whichstatedl: "100. ... But particular configurations of the coast or individual
geographical features may, under certain conditions, distort the
course of theboundary, and thus affect the attribution of continental
shelf to each State, which wouldothenvise be indicated by the general

configuration of their coasts. Theconcept of 'proportionality' merely
expresses the criterion or factor by which it rnay be determined
whether such a distortion results in an inequitabledelimitation of the
continental shelf as between the coastal Statesconcerned. The factor
of proportionality rnay appear in the form of the ratio between the
areas of continental shelfto thelengths of the respectivecoastlines, as
in the North Sea Continental Shelfcases. But it rnay also appear, and
more usually does, as a factor for determining the reasonable or
unreasonable - the equitable or inequitable - effects of particular
geographicalfeatures or configurations upon the course of an equi-
distance-line boundary." (HMSO, Cmnd. 7438, p. 60.)

The Decision went on to state, most acutely, that :"it is disproportion
rather than any general principle of proportionality which is the relevant
criterion or factor" (ibid., p. 61, para. 101).
163. Furthermore, the concept of proportionality is an extremely gen-
eralone,and theareaconcernedandthecoastlines tobe taken into account
in this respect cannot be presupposed. The outer limit of the areas at-
tributable to the respective countries can Varygreatly accordingto, first,
the existence of third parties, and, secondly, the geographical or geomor-
phological circumstances deterrnining the outer limit of the continental
shelf. In other words, the existence of a third party rnay adversely affect
one party if ignored when a line is drawn to reflect proportionality as
between the divided area and the lengths of coastline. In addition, in the

case of neighbouring States which face the vast ocean, any differencesin
geomorphology which must (according to recent trends) be taken into
account in determining the outer limit of the continental shelf (i.e., as
between twosuchStates ofwhichonefacesacontinentalmarginextending
beyond 200 miles while the other does not) rnay certainly result in an
unbalanced division of the area in spite of a line having been drawn to
reflect proportionality. Such results are unavoidable, unless we are to be
concerned withtheapplication of socialjustice or distributivejustice tothe
resources of the sea.In conclusion,proportionality rnayhave to be gauged
simply by eyeing the area concerned as a whole, from a very broad
macrogeographical standpoint, rather than with an eyetoestablishingany
predetermined ratio in theapportionment of the area. In thisrespect it rnay
be appropriate to quote, from the 1977 Decision of the Arbitration
between the United Kingdom and France, the most appropriate evalua-
tion of the concept of proportionality.

"101. ...[Tlherecan never be a question of completely refashion-
ing nature, such as by rendering the situation of a State with an
extensive coastline similar to that of a State with a restricted coast- line; it is rather a question of remedying the disproportionality and
inequitable effects produced by particular geographical configura-
tions or features in situations where othenvise the appurtenance of
roughly comparable attributions of continental shelf to each State
would be indicated by the geographical fact. Proportionality, there-
fore, is to be used as a criterion or factor relevant in evaluating the

equities of certain geographical situations, not as a general principle
providing an independent source of rights to areas of continental
shelf." (Ibid., p. 6.)

164. In my view,the Judgment is not correct in starting from a more or
less precise calculation of the length of the coastlines and the expanse of
the areas. It suggestsin paragraph 131that whiletheratio of the coastlines
of Libya and Tunisia in this area is 31 :69, or, reckoned on a basis of
straight-line coastal fronts, 34 : 66, the line proposed would result in

dividing the area approximately in the ratio of 40 :60between Libya and
Tunisia. First, how can the area concerned be defined in advance in terms
ofdefinite parallels and meridians, asattemptedin paragraphs 75and 130.
If the present case were to be one where a confined area is to beshared out
in conformity with the concept of proportionality, the case would be very
simple. But actually this is not such a case.As 1have suggestedbefore, the
concept of proportionality to be applied in delimitation of maritime areas
is a very general one, since in most cases the areas concerned are not
mathematically specific and the relevant lengths of coastline of the States
concerned are not susceptible of very precise definition.

Section V. The Rule of Equidistance

1. General application
165. The equidistance method, a geometrical method which leaves no
room for equivocal interpretation, has since the 1958 Convention often
been suggested for the delimitation of the continental shelf. Throughout
UNCLOS III the equidistancemethod was suggested for the delimitation
of the continental shelf and Exclusive Economic Zone by one school of
thought and opposed by another. No method other than that of equidis-
tance has ever been submitted in UNCLOS III, as a simple suggestion of

equitable principles could have been no substitute for the equidistance
method. As the Court seems to admit in its 1969 Judgment, no other
method of delimitation has the samecombination ofpractical convenience
and certainty ofapplication. 1sthere anyothermethod whichmay possibly
representequity asexplained above ?Here 1wouldliketo quote, withgreat
admiration, from the dissenting opinion of Judge Tanaka in the 1969case,
as follows : "The incorporation of the equidistance rule as a geometrical tech-
nique into a legal norm [Article 6 of the Convention on the Conti-
nental Shelf] exemplifies an extremely widespread phenomenon
which can be observed in regard to severallunds of extra-legal,social
and cultural norms and in such fields as usage, ethics and tech-
niques .. In the case of the equidistance principle, a technical norm
of geometrical nature, after being submitted to juridical evaluation
has become incorporated or naturalized in law as a legalnorm vested
with obligatory force." (I.C.J. Reports 1969, p. 183.)

166. As suggested in the 1969Judgment, equidistance may not be the

sole method for delimitation purposes, and no doubt has existed that in
principle this method would be followedonly in certainnormal situations
where it produces an equitable solution to the problem of the division of
sea-bed areas. If this method is one which, in principle, should apply in
normal situations, as suggested in the 1958 Convention and the 1969
Judgment of the Court, how can one say that this cannot be a rule of
delimitation ? This does not of course mean thatit is a compulsory rule in
abnormal circumstances. As mentioned previously (para. 49), in 1953the
Committee of Experts on Certain Technical Questions concerning the
Territorial Seawas already well aware of the necessity of allowing excep-
tions. In 1956the International Law Commission pointed out, in its final
draft, that "provision must bemade for departures [from the equidistance
method]" and that "this casemay arisefairly often sothat the rule adopted
is fairly elastic" (para. 51). The 1958 Convention accordingly provided
that a boundary other than the equidistance line might be justified by
special circumstances. This was not, however, unequivocal, since no clue
wasgivenas towhat might constitute such specialcircumstances, nor asto
the effect to be ascribed to them, and the practical application of the text
was therefore bound to give rise to many difficulties. 1 would further
suggest that the reason why this provision of the Convention has often
been found open to criticism,both within and outside UNCLOS III, liesin

the way it was drafted, harnessing together the unequivocal geometrical
method of "equidistance" and the equivocal notion of "special circum-
stances".

167. Moreover, iftheequidistance method wasnot acceptedby the 1969
Judgment, this was apparently not because the equidistance method itself
would be inapplicable, but for the reasons implied in the Judgment
(para. 89)that there existedconvergentclaims of severalStates and certain
irregularities such as a concave or convexcoastline in the North Sea area,
and that the Courtthoughtthat simplyemploying the equidistancemethod
would produce an unreasonable result. If the baselines had been adjusted
to rectify the irregularity of the coastlines, the Court would surely have
hesitated to refuse merit to the equidistance method. In any case,what theCourt was rejecting was equidistance as argued for by two of the three
Parties in thepeculiar circumstances of thedispute just asinthe caseofits
rejection of the "equitable share" contention, there hasin myviewbeen too
great a readiness to generalize from the Court's treatment in 1969 of
specific submissions. Here 1would like to borrow the following from the
1977Decision of the Court of Arbitration :

"97. ... [Tlhe appropriateness of the equidistance method or any
other method for the purpose of effecting an equitable delimitation is
a function or reflection of the geographical and other relevant cir-
cumstances of each particular case. The choice of the method or
methods ofdelimitation inany givencase ...has therefore tobedeter-
minedin thelightofthosecircumstances and ofthefundamentalnorm
that the delimitation must bein accordancewith equitable principles."

168. The conflict between the two schools of thought, which had
manifested itself by 1978in UNCLOS III, is illustrated by one proposa1
(NG 7/2), which suggested a formula "employing, as a general principle,
the median or equidistance line, taking into account any special circum-
stance where this isjustified", and another (NG 7/ IO),which spoke of a
formula "in accordance with equitable principles, taking into account al1
relevant circumstances and employing any methods where appropriate"
(para. 135).This conflict may not, as generally thought, be insurmount-
able, since the concept of equity seems to underlie the former formula,
while the latter attempts to promote the quest for practical ways of
implementing this same concept of equity. The main point, at any rate, is
that since the time of the 1958Conference on the Law of the Sea efforts
have been made to reconcile equity with the geography surrounding the
sea-bed areas concerned. Perhaps the true solution to theproblem relating
to the method of equidistance is that account should always be taken of
various elements and factors when determining the baselines from which
the equidistance line is to be plotted. Should the real configuration of the
Coastof each State bethe solebaseline for measuringequidistance ?This is
basically the principle applicable for deterrnining the outer limit of the

territorial sea. However, the inherent logic of the 1958Convention might
be so construed :while the sole use of the equidistance method can be
expected to lead toan equitable result, this ison theunderstandingthat the
baseline to be employed for the purpose of the geometrical construction
will Varyfrom case to case, from the strict version used in measuring the
limit of the territorial sea to certain modified baselines employed because
of special circumstances in the geography of the region.

169. If 1may put the conclusion first, "irregularities in coastlines" and
the "existence of islands" have always, even if only implicitly, been
regarded ascircumstances to be taken into account. Certainly, notjust any 263 CONTINENTAL SHELF (DISS. OP. ODA)

existinggeographicalcondition maybe regardedas an anomaly, andit will
not be easy to define what irregularitiesshould be rectifiedin determining
the baseline for application of the equidistance method. However, an
irregular overall shape of the coastline,significantconfigurational irregu-
larities and the existence of narrow promontories or peninsulae, or even of
islands, might be agreed upon as constituting irregularities the effect of

whichis to be mitigated in settlingthe baselines. The degreeof irregularity
to be consideredsignificantin eachcase may Varyaccording to the overall
expanse of the area concerned. If the area is comparatively large, the
existence of some irregularity may well be ignored, but if it is small even
someminor irregularity would probably have to be taken into account for
the purpose of rectifying the baseline for delirnitation of the continental
shelf or Exclusive Economic Zone.

2. An island asan irregularityof the coastline

170. Although the status of islands in connection with the delirnitation
of the continental shelfwasnot provided for ineitherthe 1958Convention
on the Continental Shelf or the 1981draft convention on the Law of the
Sea,viewshaveoften been expressedon whether al1islandsshould have the
status of abaseline for measuring theequidistanceline whendelimitingthe
continental shelf. In thisconnection,it isproper to reflect oncemoreupon
howislands were treated at the 1958Conference and UNCLOS III. 1have
referred to Article 10 of the Convention on the Territorial Sea and the
Contiguous Zone and Article 1 of the Convention on the Continental
Shelf, the only provisions relevant to the status of islands in the Geneva
Conventions on the Law of the Sea (para. 149).As was also stated above
(para. 150),Article 121is theonly articlein the draft conventionthat deals
with islands. 1 again quote the most relevant provision therein :

"2. ...the territorial sea, the contiguous zone, the exclusive eco-
nomic zone and the continental shelf of an island are determined in
accordancewiththeprovisions of thisConventionapplicable to other
land territory."

This text has not changed since it'wasdrafted asArticle 132of the ISNT.
The drafting style of this provision is similar to that of Article 10,para-
graph 2, of the Territorial Sea Convention. The difference lies in the fact
that, while under the 1958Convention "the territorial sea of an island is
measuredinaccordancewith" theprovisions of the Convention, under the
1981draft convention not only the territorial sea but also the exclusive
economiczone and the continental shelf of an island "are determined in
accordancewiththeprovisions of thisConventionapplicable to otherland
territory". 171. The influence ofislands on thedelimitation of thecontinental shelf
wasnot provided for in the 1958Convention on theContinental Shelf,and
was also not a point dealt with in the 1969Judgment of the Court. 1have
briefly referred to this problem (para. 53). However, it will be as well to
recapitulate how this problem wasargued at the 1958GenevaConference.
For the case of opposite States,Italy made the following proposal, which
has been quoted previously :

"Where in theproximity of coasts which are opposite to eachother

there are islandsbelongingtothe said continuouscontinental shelf,in
the absence of agreement,theboundary is the median lineeverypoint
of which is equidistant from the low-water line alongthe Coastof the
said States,unless someother method of drawingthe saidmedian line
isjustified by special circumstances." (A/CONF.l3/C.4/L.25.)

The Swedishdelegateremarked that this proposa1might be interpreted to
mean that themedian lineshould be drawn solelyon thebasis ofcoastlines,
leaving islands entirely out of account. Iran also proposed :

"Where an island or islands exist in a region which constitutes a
continuous continental shelf, the boundary shall be the median line
and shallbe measuredfromthe low-watermark alongthecoasts of the
States concerned, provided, however, that where special circum-
stances sowarrant, the median line shall be measuredfrom the high-
water mark along the coastline of such States." (A/CONF.13/C.4/
L.60.)

The Iranian delegate stated that hisproposa1wassubstantiallythe sameas
the Italian amendment, except that his amendment recommended refer-
ence in special circumstances to the high-water mark. In the view of the
Iranian delegate, it was clearthat, if islands were to be taken into account,
serious complications would arise and the benefit of having adopted the
median line rule would be lost by the difficulty of applyingit. The Iranian
delegate suggested that the most convenient and most equitable solution
wasnot to permit islandssituated much farther out than the territorial sea
to have any influence on the boundary. No opposition was explicitly

expressed toward these views,and both the Italian and Iranian proposals
were defeated almost outright at the Fourth Cornmittee. It may not be
correct to conclude from this fact that a principle was formulated to have
the existence of islands taken into account in the drawing of the median
line.The delegate of the United Kingdom consideredthat the existence of
islands would fa11in the category of special circumstances. He suggested
that for the purpose of drawinga boundary, islands should be treated on
their merits.The United Statesdelegate agreed with the United Kingdom
delegate that, in viewof the great variety of size,grouping and position of
islands, it would be impossible either to include or exclude al1islands on265 CONTINENTAL SHELF (DISS.OP.ODA)

thecontinental shelf,and that eachcaseshould be considered on its merits.

Hence taking into account the existence of al1 islands in drawing the
equidistance line was not conceivable. The existence of islands was no
more than one of the factors which mightjustify the invocation of special
circumstances.
172. In theUnitedNations Sea-bedCommittee and UNCLOS III some
proposals concerning the status of islands also dealt with the question of
the effect of islands on the delimitation of the continental shelf. Some
proposals dealt simply with the existence of certain types of island as a
specialcircumstance, but other proposals suggested that the same princi-
ples should apply to both continents and islands. The followingproposals

seem to be the most interesting in this respect. In their proposa1 on
"Régimeof Islands", submitted at the 1973session of the Sea-bed Com-
mittee, Cameroon, Kenya, Madagascar, Tunisia and Turkey suggested :

"1. Maritime spaces of islands shall be determined according to
equitable principles taking into account al1relevant factors and cir-
cumstances, including, inter alia:
(a) the size of islands ;
(6) the population or the absence thereof ;
(c) their contiguity to the principal territory ;

(d) whether or not they are situated on the continental shelf of
another territory ;
(e) their geological and geomorphological structure and configura-
tion." (A/AC.138/SC.II/L.43.)
In the second session of UNCLOS III in 1974, 14African States (Algeria,

Dahomey, Guinea, Ivory Coast, Liberia, Madagascar, Mali, Mauritania,
Morocco, Sierra Leone, Sudan, Tunisia, Upper Volta and Zambia)
proposed more detailed "Draft Articles on the Régime of Islands"
(A/CONF.62/C.2/L.62/Rev. 1 - 27 August 1974) :

2. Themarine spacesof islands considered non-adjacent, in accor-
dance with paragraphs 1 and 6, shall be delimited on the basis of
relevant factors taking into account equitable criteria.
3. These equitable criteria should notably relate to :
(a) the size of these naturally formed areas of land ;

(b) their geographicalconfiguration and their geologicaland geomor-
phological structure ;
(c) the needs and interests of the population living thereon ;
(d) the living conditions which prevent a permanent settlement of
population ; (e) whether these islands are situated within, or in the proximity of,
the marine space of another State ;
(fl whether, due to their situation far from the coast, they may
influence the equity of the delimitation ..."

This latter set of proposals refers specifically to "non-adjacent" islands,
thus alluding to a distinction made elsewhere, and is concerned mainly
with the delimitation of the marine areas attributable to such islands as
distinct entities. This is a matter of somerelevance to a topic 1have dealt
with in an earlier chapter. The last subparagraph, (fl, however, appears to
allude to delimitation between States, othenvise its meaning would be
somewhat circular.
173. Indeed it is evident that the presence of an island may "influence
the equity of a delimitation" according to its geographical position, and
not onlywhen the island is to be regarded asnon-adjacent. However, when
an island is within easy reach of the mainland, it is my conclusion that
geographical and demographic criteria will normally be sufficient to
determine whetherit should be treated as arectifiableirregularity. In other
words, an island should be considered on its ownmerits when the baseline
for the plotting of an equidistance line is being determined.

3. Low-tide elevations
174. After the above examination of the relevance of the shape of the
coast and the presence of islands to determine baselines for the measure-
ment of the equidistanceline,it should be clear that the normal baseline for
measuring thebreadth of the territorial seacould not alwaysbe usedforthe
equidistance method asapplied to thedelimitation of thecontinental shelf,
despite the provisions of Article 6 of the 1958Convention on the Conti-
nental Shelf. In this connection 1should like to make some further obser-
vations on the status of low-tideelevations. It is suggestedunder the 1958
Territorial Sea Convention that, where a low-tide elevation is situated
wholly or partly at a distance not exceeding the breadth of the territorial

seafrom the mainland oran island, the low-waterline on that elevation be
used as the baseline for measuring the breadth of the territorial sea
(Art. 11,para. 1).Whileit may be reasonable to provide that, in thecaseof
the delimitation of the territorial sea, a low-tideelevation should be taken
fully into account for determining the equidistance/median line (Art. 12,
para. l), the situation might be quite different were this rule to be applied
in the case of delimitations of the continental shelf. The extent of the
territorial sea will in any case be limited to a narrow belt from the coast,
and, whatever the line of delimitation adopted for demarcating their ter-
ritorial seas between two States, its effect willprobably not be very great.
175. However, this delimitation line,whichmay not produce any great
effectwithin the narrow confines of the territorial sea, willbring about an
enormous difference in the much more widely extended area of the con-
tinental shelf. If the baseline used for measurement is extended seaward
owingto the existenceof alow-tideelevation, the effectwillalsobe great. Itis true that the 1958Convention ontheContinental Shelfprovides that the
equidistance line should be measured from the baselines from which the
breadth of theterritorial seaismeasured, that is to Say,taking into account
the existenceof alow-tideelevation. It should not be overlooked,however,
that in the early days of the International Law Commission, which sub-
mitted the draft convention to the 1958Conference on the Lawof the Sea,
the three-mile limit was still regarded as having the widest acceptance for
the breadth of territorial seas.A low-tide elevation could have been taken
into accountfor measuring the territorial sea,oreventhecontinental shelf,
if it were located within so narrow a limit as three miles from the coast.
However, it may be asked whether the same is true now that thebreadth

of the territorial sea has been extended to 12 miles from the coast. Un-
doubtedly this difference between the 3-mile limit and the 12-milelimit
greatly affects the evaluation of the significance of a low-tide elevation
within the limit :the delimitation of the continental shelfwould be greatly
affected by taking into account low-tide elevations which,it is submitted,
theInternational Law Commissionin its early days had not contemplated.
It is accordingly my conclusion that, despite the provisions of the Con-
vention on theContinental Shelf,itwould beproper toignore the existence
of low-tideelevations in the case of a delimitation of the continental shelf,
now that the wider 12-mile limit of the territorial sea has become an
established rule of international law.

176. In conclusion, 1would suggest that, considering geography as the
solefactor to be employed forthe divisionof the sea-bedarea, adivision of
thearea concerned in proportion to the length of the relevant coast of each
State facing that area will, in principle, satisfy the requirement of equity,
and the geometrical method of equidistance will, in principle, serve to
achieve this purpose. As previously suggested, however, the concept of
proportionality between the continental shelf area and the length of

coastline must remain very vaguein the absence of any preciseknowledge
of the extent of the area to be divided and the relevant coastline of each
Party. No less difficult will be finding the baseline for drawing the equi-
distance line, whether one follows the real configuration of the coast and
takes account of the existence of islands, or modifies it on account of
certain irregularities of the coastline or theunusual location or character of
theislands. It must beadmittedthat it wouldbe difficult, ifnot impossible,
to devise a general formula applicable to al1cases in such a way as to
indicate the precise shape of any coastline, or the nature (size, economy,
distance from mainland, etc.) of any island, to be wholly or partially
disregarded. The geographical circumstances will have to be evaluated in
each case in the light of what is regarded as representing equity, to be
verified by proportionality between the continental shelf areas assigned
and the lengths of the relevant coasts. CONTINENTAL SHELF (DISS.OP. ODA)

CHAPTER VIII. PRACTICAM LETHOD SUGGESTED

1. SuggestedMethod

177. 1 regret that 1 can neither share, nor even understand, the view
which the majority of the Court, in describing the practical method to be

employed for the delimitation between the Parties, has expressed to the
effect that thedelimitation line should be composed of two segments.The
Court suggests,for itsfirst segment, a straight line drawn from Ras Ajdir,
atan angle corresponding to the western boundary of the Libyan conces-
sions, to thepoint of intersection with a parallel passing through the most
westerly point of the Tunisian coastline in the Gulf of Gabes. What
justification can there be for prescribing a delimitation identified with a
line already emplaced by one Party, even if the other Party subsequently
granted some concessions in such a way as not to encroach upon it ?1sit
not a fact that the present case was brought to the Court by the Parties
because this line was not mutually satisfactoxy?
178. What significance, moreover, from any objective viewpoint, has
the point of intersection of this line with the parallel passing through the
mostwesterlypoint ofthe Gulf ofGabes ? Whyshould thatpoint be ofany
specialimportance in the delimitation of thearea concerned?1realizethat

a connection has been made between a change in the general direction of
the Tunisian coastline and the alleged necessity of "veering" the line, but
the translation of this connection into terms of a parallel of latitude can
only result from an optical illusion in which a conventional lattice of
cartography istreated aspart of thenatural configuration. Thisis the more
disconcerting in that the Court has rightly resisted the Parties' efforts to
persuade it to view the area as imprinted with a north-south or west-east
orientation, as the case may be. 1suggest that, if the configuration of the
area is looked at from a position and angle different from the traditional
north-south/west-east view,it will immediately be apparent that the sug-
gested veering point has no special relationship with the most westerly
point in the Gulf of Gabes. Unless there isspecificagreement between the
Parties to attach specialsignificance to parallels or meridians, it issurely a
serious error in delimitation to treat them as anything more than con-
venient lines of reference for descriptive purposes. A companion error

is to attach specialsignificanceto thecardinalpoints of the compass, and
here 1am thinking of the possibility that the "most westerly" point of the
Gulf of Gabes may not be the geometricallycorrect point from which to
consider that a change of general direction occurs.
179. For the second segment of the line the Court suggestsa bearing of
52". 1sit possible to find any principle or rule of international law which
will provide a ground for this inclinati?nSurely not. In paragraphs 128
and 129of theJudgment it is suggestedthat this segment of the line derives
from a parallel with the general direction of the Coastof Tunisia north of
the most westerly point of the Gulf of Gabes, as adjusted to allow a
"half-effect" to the Kerkennah Islands. Why should this segment of thelinebe parallel with the coast of Tunisia rather than the coast of Lib?aIn
any case,a linein parallel to the coastline can appropriatelybe used forthe
outer limit of maritime zones, but not for the lateral or common boun-
daries of the zones of adjacent or even opposite States. If a geometrical
method of delimitation such as a parallel to the bisector of the angle made
by onelinedrawnfrom the most westerlypoint of the Gulf ofGabesto Ras

Kaboudiaand another to the seawardcoast of theKerkennah Islands is to
be used, why should not this idea ofbisecting angleshavebeen applied for
drawing the first segment of the boundary ? In addition, in spite of
recognizing that low-tide elevationshave some significance, the Court not
onlyseemstoignore them for no stated reason as apossiblebaselinefor the
shelf delimitation,but also disregards them in recommending an angle of
52" to the mendian as being the bisector of the angle between the (42")
line drawn from "the most westerly point of the Gulf of Gabes" to Ras
Kaboudia, andthe other (62') line "from that poinalongtheseawardcoast
of theKerkennah Islands" (emphasis added), simplybecause "to causethe
delimitation line to veer evenas far as to62", to run parallel to the island
coastline, would, in the circumstances of the case, amount to giving
excessive weight to the Kerkennahs". The treatment here given by the
Judgment to low-tideelevations(howevercorrect initself) cannot but give
rise to a suspicion that the "bisector" is employed simply to justify the
somewhat arbitrarily determined angle of the second segment. In fact,the

angle of 52" seems to depend on the happy coincidence that the seaward
coast of the Kerkennahs happens to lie in the path of the line extended
from the most westerly point of the Gulf of Gabes. That being so, 1am
personally at alossto seeanyreason whythisparticular parallelism adds to
the persuasiveness of the inclination of 52" preferred for the second seg-
ment.

180. In fact, the Court fails to adduce any cogent ground for either
segment of the line, or for the line as a whole, a line which does not
exemplify any principle or rule of international law. It may represent an
acceptable solution, but whether it is equitable can only be verified by
comparing it with the outcome of applying a tmly equitablemethod. Butif
amethod can be applied for the purpose of verification, why should it not
have been tried in the first place?
181. As demonstrated above, equity requires that delimitation of the

continental shelf (or of the exclusiveeconomiczone) should be effected in
accordance with the geography of the area concerned, i.e., soasto secure
reasonableproportionality between lengths of coastline and the expanses
allocated. 1 hold this to be generally true, but there will surely be wide
agreement that it is at any rate true in cases,like the present one, where (as
the Judgment indicates in para. 133A (2))the concept of natural prolon-
gation provides no useful guide. It can be shown, both as a geometrical
theorem and empirically, that the plotting of an equidistance line will
normally satisfy this requirement of equity, provided certain preliminaryconditions, which 1 have described, are observed before the plotting
is undertaken. The qualified equidistance method is thus the equitable
method par excellence, and for this reason alone should be tried be-
fore al1others.

182. In paragraph 109the Judgment States that "equidistance may be
applied if it leads to an equitablesolution;if not, othermethods should be
employed". Despite the proposition put forward in paragraph 110of the
Judgment, the fact that the Parties have (forreasonsnot unconnected with
the extent of their respective claims) argued that the application of the
equidistancemethod would not be an appropriate solution does not, in my
view, conclusively deprive the Court of its right to suggest the qualified
equidistancemethod that 1havejust suggested. 1stherein theJudgment a
trace of anyeffort to provethat equidistanceinthepresent casewill lead to
an inequitablesolution ? 1feelbound to point out theinconsistenciesinthe
Court's preference for bisected angles, compromise boundaries, half-
effects,etc.Not only do theseattempts to "split thedifference" derivefrom
an implicit purpose of apportionment, but they are al1simply approxima-
tions to theconsistent geometrical approach,based ona distancecriterion,
which the Court has rejected forno stated reason.And a distancecriterion

is precisely the one established feature of the exclusive economic zone
régimewhich is destined to replace natural prolongation as a test in
delimitation of the continental shelf.

183. In the present case the preliminaries involve taking into account
the following geographicalcircumstances :

(1) On inspection of the map, the coastlines of Tunisia and Libya which
face the area concerned, namely from Cap Bon in the north to Ras
al-Hamamahin theeast, no feature isrevealed, apart perhapsfrom the
presence of some islands, which calls for any departure from the
coastal configuration in determining the baseline from which to plot
the equidistanceline for the delimitation of the continental shelf.The
question of the islands is dealt with in the next subparagraph.
(2) 1have earlierconcludedthat islands shouldbe considered on their own

merits for the purpose of delimitation of the continental shelf, and
suggested that an island within easy reach of the coast should be
viewedtothat endfrom the viewpoint of demographic and geographic
circumstances. 1 shall devote a few words to Jerba, whose size, con-
figuration, contiguity to the coast and nearness to the frontier-point
(see below) are, taken together, such as to preclude its being disre-
garded. From the viewpoint of demography and economics, it can be
shown that the Kerkennahs are also of importance to Tunisia. How-
ever, this fact does not definitively exclude the possibility of disre-
garding them in plotting the equidistance line for the purpose of
delimitation of the continental shelf.To seewhether this possibility is
plausible, one has to look closely at the geographical circumstances. Now, althoughwithin easyreach of themainland, the Kerkennahs are
separated from it by approximately 11milesand, being elongated and
far from parallel to the coast, project far out to sea ;they have thus
pushed the baseline for the territorial sea of Tunisia far to the east.
While this effect is tolerable and necessary for the territorial sea, it
would be sopronounced if applied to a vast and economically impor-
tant zonelike the continental shelf that 1feel impelled to recommend
theexclusion oftheKerkennahsfromconsiderationindeterminingthe
baselinefrom which theequidistanceline is to be plotted, despite their
demographic importance. Here attention needs to be drawn to a
peculiarity of the equidistance method, namely that the extent to
which a geographical feature can be treated as an irregularity and

disregarded may depend onits distancefrom thefrontierpoint. It may
be inequitable to disregard a feature near to that point, because to do
sowould bringthedividinglinetoo closetoit, andinanycase afeature
near to thefrontier willnot affect thecourse of theline fora verygreat
distance. A similar feature far from the frontier-point may, on the
contrary, have an altogether disproportionate effect, but that feature
can be disregardedwithoutbringingthedividinglineinany senseclose
toit. Thus evenif,for thesake of argument,theisland ofJerba had not
been contiguous to the mainland and had had a similarconfiguration
to the Kerkennahs, it would have been very doubtful that it could be
disregarded.

(3) Under theGenevaConventions on the Law of the Sea,it wasprovided
that any low-tide elevation should form part of the baseline for the
measurement of the territorial sea, and also that this baseline should
apply when an equidistance line is plotted for the purpose of delimi-
tation of the continental shelf.However,as 1have pointed out earlier,
it is scarcely appropriate to take account of low-tideelevationsin the
delimitation of the continental shelf. This is particularly true in the

present case, since it is only on the coast of Tunisia that a significant
number of low-tide elevations exist, and their effect has been to place
the baseline for measuring the territorial sea of that country at a far
remove from therealcoastline of the mainland.This simplyreinforces
my viewthat low-tide elevations should be discardedas an element of
the baseline for the delimitation of the continental shelf.

184. Thus 1 would suggest that the line for the delimitation of the
continental shelf between Tunisia and Libya should be drawn as a line
equidistant from their respective coasts, disregarding al1the low-tide ele-
vations off the coast of either Party and the existence of the Kerkennah
Islands.
185. The technicalmethods for drawingthe equidistance-median linein
the case of neighbouring States which are either adjacent or opposite are
wellillustrated in Shalowitz'sShoreand SeaBoundaries,Volume 1(1962), 272 CONTINENTAL SHELF (DISS.OP.ODA)

particuladyat pages 232-235.Reference can also bemade toHodgson and
Cooper, "The Technical Delimitation of a Modern Equidistant Boun-
dary", Ocean Development andInternational Law,Vol. 3, No. 4, 1976,
pp. 361ff. In this connection 1 must point out that the Court seems to
misunderstand the practical application of the method of equidistance in
suggesting "the equidistance method [takes]full account of almost al1
variations in the relevant coastlines" (para. 126).In fact, in drawing the
equidistance line, it is scarcelypossible to take full account of "almost al1

variations", as only salient points or convexitieson thecoastline can affect
the drawing of this line. Provided only that the baseline excludes long,
narrowspurs orpromontoriesand similarfeatures,this iswhollyequitable,
for the lengths of coastline between salient points or convexities will
embrace areas commonly recognized as interna1in status, such asmouths
of rivers, coves and bays.

2. Suggested Line

186. Properly applied,from abaselinedetermined as 1have explained,
the method of equidistance results in a line which, subject to expert
verification, includes the following points :

(i) 33" 50' N and 11" 57' E
(ii) 34" 25'N and 12" 47' E
(iii) 34" 35'N and 13" 03' E

Theline should be extended in the direction of the lineconnectingpoints
(ii) and (iii) above.
187. (1) Point (i) is roughly 40 miles from Ras Ajdir, and from it the
closestpoints are RasAjdiritself,together with apoint on theeasterncoast
of Jerba in Tunisia and Ras at-Talqa on the Libyancoast. It is technically
impossible to single out one equidistance line witlun the area landwards
frompoint (i),sinceRas Ajdir, wherethecoastlines ofboth Parties meet,is
located at an apex. In caseswherethepoint from whichthelineis tostart is
so located, a plurality of equidistance lines is inevitable between the
starting-point and a point P equidistant from the starting-point itself and
twootherpoints, oneon each ofthe respective coasts. In thepresent case,P
is point (i). Hencethe singleline of equidistance can only start from point
(i).Itthen followsacoursein which everypoint isequidistantfrom apoint
on the eastern coast of Jerba in Tunisia and Ras at-Talqa on the Libyan

coast, until it reaches point (ii).

(2) Point (ii) is equidistant from Ras Kaboudia and the point on the
easterncoast ofJerbaon the Tunisian sideand Rasat-Talqa and Tripoli on
theLibyan sideandit is thespot wherethecombined effectof the presence
of Ras Kaboudia in Tunisia and Tripoli in Libya is to deflect the line273 CONTINENTAL SHELF (DISS. OP. ODA)

slightly eastwards. In other words, it is the turning-point of theequidis-
tanceline.The linethen followsacourseinwhicheverypoint isequidistant
from Ras Kaboudia in Tunisia and Tripoli in Libya.
(3) Point (iii)is thepoint onthe last-mentioned linewhichisequidistant
from Tunisia and Libya, aswellasfrom Malta. SinceMaltais not aparty to
the present case, this point is marked on the line simply to indicate the
direction of the line to be drawnfrompoint (ii).In fact, it sohappens that

at this point a feature located a few miles east of Tripoli, on the Libyan
side, starts pushing the line westwards, but only to a negligible degree.
(4) Although only point (ii)is mentioned as a turning-point, there are,
theoretically,more, butin eachcasethe alteration in direction whichwould
result from changing the points of reference on the Coastwould be prac-
tically negligible, as the new reference-point would be merely a few miles
distant from the old.
(5) As stated previously, in the area landwards of point (i) any line
within a certain rhomboid can be an equidistance line. It may not be
inequitable to suggest the straight line connecting Ras Ajdir and point (i)
astheequidistance linefor thepurpose ofdelimitation. Thislinerepresents
a perpendicular to the coasts of both Parties measured over a distance
which is relatively short in comparison with that of about 40 miles from
Ras Ajdir to point (i).
(6) Attached hereto, purely by way of illustration, are two maps, one
giving the proposed equidistance line in the area offering itself for

delimitation, and theother givingthe position of this line in the full back-
ground of the entire coastlines of both Parties.
188. It would be invidious to proceed farther and to demonstrate how
the suggested line satisfies the requirement of a reasonable degree of
proportionality (as defined in an earlier chapter), but 1suggest that if this
demonstration is carried out it will be seen that the line in question
provides a usefulyardstick against which to verify the equitable nature of
the two-part line prescribed by the Court. Without going into detail, 1
would likebefore concluding to stressoneveryimportant advantage of the
equidistance method, whenemployedwiththe precautions 1haveoutlined.
It lies in the fact that its inherent property of equity remains constant
whatever the "area relevant to the delimitation", so that the imperious
necessityof defining that area isremoved - and withit the need to resort to
the arbitrary 2nd artificial use of parallels and meridians.

(SigneS d)igeru ODA. Paragraphs
1-2

Chapter 1. TRENDSAT THETHIRD UNITEDNATIONC SONFERENCE ON

THE LAW OF THESEA AND STATUSOF THE DRAFT CONVENTION ON
THE LAW OF THE SEA
Section1. "Trends" as interpreted by Tunisia and Libya

Section II. The "consensus" formula of the Third United Nations
Conference on the Law of the Sea
SectionIII. Negotiating texts
Section IV. Draft convention on the Law of the Sea

CHAPTER II. THE TRADITIONAC LONCEPT OF THE CONTINENTAL
SHELF

Section 1.Early claims to the continental shelf and scholarly views
thereon

1. Pre-history of the claims to the continental shelf
2. Scholarly viewson the continental shelf doctrine prior to the
1958 United Nations Conference on the Law of the Sea

Section II. Basic concept of the continental shelf in the 1958Con-
vention on the Continental Shelf
1. Draft prepared by the International Law Commission
2. The régimeof the continental shelf adopted in the 1958

Convention on the Continental Shelf
Section III. Development ofeas concerning delimitation of the
continental shelf

1. Draft prepared by the International Law Commission
2. Article 6 of the Convention on the Continental Shelf
Section IV. Significance of the 1969Judgment of the Court

1. The continental shelf as a rule of customary international
law
2. Meaning of Article 6 of the Convention on the Continental
Shelf

CHAPTER III. SEDENTARFY ISHERIESAND HISTORIC RIGHTS
Introduction
Section1. Past practice and doctrines

1. Exploitation of sedentary species
2. Fishing by means of embedded equipment Paragraphs

Section II. Sedentary fisheriesin the 1958Conventions on the Law
of the Sea 74-84
1. Draft prepared by the International Law Commission

2. Provisions of the 1958Conventions on the Law of the Sea

Section III. Sedentary fisheries at the Third United Nations Con-
ference on the Law of the Sea
Section IV.istoric rights

CHAPTER IV. NEWTRENDS IN THECONCEPT OF THE CONTINENTAL
SHELF
Section1. The halting of the expansion of the outer limit of the

continental shelf 89-93
Section II. Fluctuation of theteria for the outer limit of the
continental shelf 94-105
1. Suggested criteria
2. Negotiating texts

Section III. Changing concept of the continental shelf 106-107

CHAPTER V. IMPACTOF THE CONCEPT OF THE EXCLUSIVE ECONOMIC
ZONE ON THE CONCEPT OF THECONTINENTASL HELF
Introduction 108
Section 1.New concept of the exclusive economic zone 109-120

1. Emergence of the concept
2. Concept of the exclusiveeconomic zone as suggested in the
Negotiating Texts

Section II. Some ambiguities in the concept of the exclusive
nomic zone 121-125

1. Unclear concept of conservation management
2. Somewhat unbalanced concept of the enforcement of the
laws and regulations of the coastal State

Section III. Relations between the continental shelf and the exclu-
sive economic zone 126-130
1. Parallel régimesof the continental shelf and the exclusive
economic zone
2. Exploitation of submarinenera1resources under the dif-

ferent régimesof the continental shelf and the exclusiveeco-
nomic zone
CHAPTER VI. TRENDS IN THE DELIMITATIO NF THECONTINENTAL

SELF/EXCLUSIVE ECONOMIC ZONE AT THE UNITEDNATIONS
THIRDCONFERENCE ON THE LAW OF THE SEA

Section 1.Various proposals for delimitation
Section II. Negotiating texts

1. Existence of two schools of thought
2. Significance of Articles 74/83 of the draft convention

262 Paragraphs
CHAPTERVIT. PRINCIPLE SND RULES FOR THE DELIMITATIO ONF

THE CONTINENTAS LHELF/EXCLUSIV ECONOMIC ZONE
Section1. Introduction 146
Section II. Thestatus of thethird State in thecase of delimitation of
the continentalelf 147-150

1. In general
2. Island States

Section III. Equitable principles 151-160
1. Equitable apportioning
2. Geographical equity

Section IV. Proportionality as a function of geographical equity64

Section V. The rule of equidistance 165-176
1. General application
2. An island as an irregularity of the coastline
3. Low-tide elevations

CHAPTER VIII. P~ACTICAL METHOD SUGGESTED

1. Suggested method
2. Suggested line