Continental Shelf (Libyan Arab Jamahiriya/Malta) - Judgment of the Court

OF JUSTICE

Peace Palace, 2517 KJ The Hague. Tel. 92 44 41. Cables: Intercourt, The Hague

Telex 32323

unofficial
for ~mmediaterelease

No. 85/11
3 June 1985

Continental Shelf (Libyan Arab JamahiriyalMalta)

Judgment of the Court

The following information is communicated to the press by the
Registry of the International Court of Justice:

Today, 3 June 1985, the International Court of Justice delivered its

Judgment in the case concerning the Continental Shelf between the Libyan
Arab Jamahiriya and Malta.

By 14 votes to 3, it states what principles and rules of
international law are applicable to the delimitation of the continental

shelf between the two States, and the circumstances and factors to be
taken into consideration in order to achieve an equitable delimitation.
It states that an equitable result can be obtained first by drawing
between the 13" 50' and the 15" 10' meridians a median line, of which
every point is equidistant from the low-water mark of the relevant consts

of Malta, on the one hand, and of Libya, on the other, and by then
transposing this line northwards by 18' so as to intersect the 15" 10' E
meridian at a latitude of approximately 34" 30' N.

The complete text of the operative part of the Judgment is set out
on pages 10 and 11 of this communiqué. The voting was as follows:

IN FAVOUR: President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Ruda, Ago, El-Khani,
Sir Robert Jennings, de Lacharrière, Mbaye, Bedjaoui;

Judges ad hoc Valticos, Jiménéz de Aréchaga.

AGAINST: Judges Mosler , Oda and Schwebel.

The Court was composed for this case as follows: President Elias;
Vice-President Sette-Camara; Judges Lachs, Morozov, Nagendra Singh,

Ruda, Mosler, Oda, Ago, El-Khani, Schwebel, Sir Robert Jennings,
de Lacharrière, Mbaye, Bed jaoui ; Judges ad hoc Valt icos and
Jiménéz de Aréchaga.

Judge El-Khani appended a declaration to the Judgment.

Vice-President Sette-Camara appended a separate opinion to the
Judgment; Judges Ruda and Bedjaoui, and Judge ad hoc Jiménéz de Aréchaga
appended a joint opinion. Judge Mbaye and Judge ad hoc Valticos each

appended separate opinions.

Judges Mosler, Oda and Schwebel appended dissenting opinions to the
Judgment .

In these opinions the Judges concerned state and explain the
positions they adopted in regard to certain points dealt with in the

Judgment. A brief summary of these opinions may be found in the Annex
hereto. 1

The printed text of the Judgment will be available in a few weeks'
time. (Orders and enquiries should be addressed to the Distribution and
Sales Section, Office of the United Nations, 1211 Geneva 10; the Sales
Section, United Nations, New York, N.Y. 10017; or any specialized

bookshop.)

An analysis of the Judgment is attached. This analysis, prepared by
the Registry for the use of the Press, in no way involves the
responsibility of the Court. It cannot be quoted against the text of the

Judgment, of which it does not constitute an interpretation.

Analysis.. . Analysis of the Judgment

Proceedings and Submiçsions of the Parties (paras. 1-13)

The Court begins by recapitulating the various stages in the

proceedings and setting out the provisions of the Special Agreement
concluded between the Libyan Arab Jamahiriya and Malta for the purpose of
sutxnitting to the Court the dispute between them concerning the
delimitation of their respective continental shelves.

By Article 1 of t:he Special Agreement, the Court is requested to
decide the following cluestion:

"What principles and rules of international law are applicable
to the delimitation of the area of continental shelf which

appertains to the Republic of Malta and the area of continental
shelf which appertains to the Libyan Arab Republic, and how in
practice such principles and rules can be applied by the two Parties
in this particular case in order that they may without difficulty
delimit such area by an agreement as provided in Article III."

According to ArtFcle III:

"Following the final decision of the International Court of
Justice the Government of the Republic of Malta and the Government
of the Libyan Arab Republic shall enter into negotiations for

det ermining the area of their respect ive continental shelves and for
concluding an agreement for that purpose in accordance with the
decision of the Court. "

Having described the geographical context (paras. 14-17) in which
the delimitation of tlne continental shelf, the subject of the
proceedings, is to be carried out, the Court explains its approach to the
task which it has to discharge (paras. 18-23).

The Parties agree on the task of the Court as regards the definition
of the principles and rules of international law applicable in the case,
but disagree as to the way in which the Court is to indicate the
practical application of these principles and rules. Malta takes the
view that the applicable principles and rules are to be implemented in

practice by the drawiing of a specific line (in this case, a median line)
whereas Libya maintaiinç that the Court's task does not extend to the
actual drawing of the delimitation line. Having examined the intentions
of the Parties to the Special Agreement, from which its jurisdiction
derives, the Court coinsiders that it is not debarred by the terms of the

Special Agreement froim indicating a delimitation line.

Turning ... Turning to the scope of the Judgment, the Court emphasizes that the
delimitation contemplated by the Special Agreement relates only to areas
of continental shelf "which appertain" to the Parties, to the exclusion

of areas which might "appertain" to a third State. Although the Parties
have in effect invited the Court not to limit its Judgment to the area in
which theirs are the sole competing claims, the Court does not regard
itself as free to do so, in view of the interest shown in the proceedings
by Italy, which in 1984 submitted an application for permission to

intervene under Article 62 of the Statute, an application which the Court
found itself unable to grant. As the Court had previously indicated in
its Judgment of 21 March 1984, the geographical scope of the present
decision must be limited, and must be confined to the area in which,
according to information supplied by Italy, that State has no claims to
continental shelf rights. Thus the Court ensures to Italy the protection

which it sought to obtain by intervening. In view of the geographical
location of these claims the Court limits the area within which it will
give its decision, on the east by the 15" 10' E meridian, including also
that part of the meridian which is south of the 34" 30' N parallel, and
on the West by excluding a pentagonal area bounded on the east by the w

13" 50' E meridian. The Parties have no grounds for complaint since, as
the Court says, by expressing a negative opinion on the Italian
Application to intervene, they had shown their preference for a
restriction in the geographical scope of the Judgment which the Court
would be required to deliver.

The Court observes that no decisive role is played in the present
case by considerations derived from the history of the dispute, or from
legislative and exploratory activities in relation to the continental

shelf (paras. 24 and 25). - In these the Court finds neither acquiescence
by either Party to claims by the other, nor any helpful indication of any
view of either Party as to what would be equitable differing in any way w
from the view advanced by that Party before the Court. Its decision must
accordingly be based upon the application to the submissions made before
it of principles and rules of international law.

The applicable principles and rules of international law (paras. 26-35)

The two Parties agree that the dispute is to be governed by

customary international law. Malta is a party to the
1958 Geneva Convention on the Continental Shelf, while Libya is not;
both Parties have signed the 1982 United Nations Convention on the Law of
the Sea, but that Convention has not yet entered into force. However,
the Parties are in accord in considering that some of its provisions

2LMf constitute ...constitute the expression of customary law, while holding different views
asto which provisions have this status. In view of the major importance

of this Convention - which has been adopted by an overwhelming majority
of States - it is clearly the duty of the Court to consider how far any
of its provisions may be binding upon the Parties as a rule of customary
law.

In this context the Parties have laid some emuhasis on a distinction
between the law applicable to the basis of entitlement to areas of
continental shelf and the law applicable to the d-limitation of areas of
shelf between neighbouring States. On the second point, which is
governed by Article 83 of the 1982 Convention, the Court notes that the

Convention sets a goal to be pursued, namely "to achieve an equitable
solution", but is silent as to the method to be followed to achieve it,
leaving it to States t~hemselves, or to the courts, to endow this standard
with specific content. It also points out that both Parties agree that,
whatever the status of Article 83 of the 1982 Convention, the

delimitation is to be effected in accordance with equitable principles
and taking account of al1 relevant circumstances.

However, on the legal basis of title to continental shelf rights the
views of the Parties are irreconcilable. For Libya, the natural

prolongation of the land territory of a State into the sea remains the
fundamental basis of I.ega1 title to continental shelf areas. For Malta,
continental shelf rights are no longer defined in the light of physical
criteria; they are controlled by the concept of distance from the coast.

In the view of the Court, the principles and rules underlying the
régime of the exclusive economic zone cannot be left out of consideration
in the present case, krhich relates to the delimitation of the continental
shelf. The two institutions are linked together in modern law, and one
of the relevant circunistances to be taken into account for the
delimitation of the continental shelf of a State is the legally

permissible extent of the exclusive economic zone appertaining to that
same State. The institution of the exclusive economic zone, with its
rule on entitlement by reason of distance, is shown by the practice of
States to have become a part of customary law; and although the
institutions of the continental shelf and the exclusive economic zone are

different and distinct, the rights which the exclusive economic zone
entails over the sea-bed of the zone are defined by reference to the
régime laid down for the continental shelf. Although there can be a
continental shelf where there is no exclusive economic zone, there cannot
be an exclusive economlic zone without a corresponding continental shelf.

It follows that, for juridical and practical reasons, the distance
criterion must now apply to the continental shelf as well as to the
exclusive economic zonie; and thi s quite apart from the provision as to
distance in Article 76 of the 1982 Convention. Within 200 miles of the
coast, natural prolongation is in part defined by distance from the

shore. The concepts of natural prolongation and distance are not opposed
but complementary; anid both remain essential elements in the juridical
concept of the continental shelf. The Court is thus unable to accept the
Libyan contention that distance from the coast is not a relevant element
for the decision of the present case.

-he. .. The Libyan "rift zone'' argument (paras. 36-41)

The Court goes on to consider Libya's argument based on the
existence of a "rift zone" in the region of the delimitation. From
Libya's contention that the natural prolongation, in the physical sense,
of the land territory into the sea is still a primary basis of title to

continental shelf, it would follow that, if there exists a fundamental
discontinuity between the shelf area adjacent to one Party and the shelf
area adjacent to the other, the boundary should lie along the general
line of that fundamental discontinuity. According to Libya, in the
present case there are two distinct continental shelves divided by what

it calls the "rift zone", and it is "within, and following the general
direction of, the Rift Zone" that the delimitation should be carried out.

The Court takes the view that, since the development of the law
enables a State to claim continental shelf up to as far as 200 miles from
its coast, whatever the geological characteristics of the corresponding Y

sea-bed and subsoil, there is no reason to ascribe any role to geological
or geophysical factors within that distance. Since in the present
instance the distance between the coasts of the Parties is less than
400 miles, so that no geophysical feature can lie more than 200 miles
from each coast, the "rift zone'' cannot constitute a fundamental

discontinuity terminating the southward extension of the Maltese shelf
and the northward extension of the Libyan as if it were some natural
boundary. Moreover, the need to interpret the evidence advanced for and
against the Libyan argument would compel the Court first to make a
determination upon a disagreement between scientists of distinction as to

the more plausibly correct interpretation of apparently incomplete
scientific data, a position which it cannot accept. It therefore rejects
the SO-called "rift zone" argument of Libya.

Malta's argument respecting the primacy of equidistance
(paras. 42-44)
w
Neither, however, is the Court able to accept Malta's argument that
the new importance of the idea of distance from the coast has conferred a
primacy on the method of equidistance for the purposes of delimitation of

the continental shelf, at any rate between opposite States, as is the
case with the coasts of Malta and Libya. Malta considers that the
distance principle requires that, as a starting point of the delimitation
process, consideration must be given to an equidistance line, subject to
verification of the equitableness of the result achieved by this initial

delimitation. The Court is unable to accept that, even as a preliminary
step towards the drawing of a delimitation line, the equidistance method
is one which must necessarily be used. It is neither the only
appropriate method of delimitation, nor the only permissible point of
departure. Moreover, the Court considers that the practice of States in
this field falls short of proving the existence of a rule prescribing the

use of equidistance, or indeed of any method, as obligatory.

-he.. . Equitable principles (paras. 45-47)

The Parties agree that the delimitation of the continental shelf
must be effected by the application of equitable principles in al1 the

relevant circumstances in order to achieve an equitable result. The
Court lists some of these principles: the principle that there is to be
no question of refashioning geography; the principle of non-encroachment
by one Party on areas appertaining to the other; the principle of the
respect due to al1 relevant circumstances; the principle that "equity

does not necessarily imply equality" and that there can be no question of
distributive justice.

The relevant circumstances (paras. 48-54)

The Court has still to assess the weight to be accorded to the
relevant circumstances for the purposes of the delimitation. Although
there is no closed list of considerations which a court may invoke, the
Court emphasizes that the only ones which will qualify for inclusion are

those which are pertinent to the institution of the continental shelf as
it has developed within the law, and to the application of equitable
principles to its delimitation.

Thus it finds to be unfounded in the practice of States, in the

jurisprudence or in the work of the Third United Nations Conference on
the Law of the Sea the argument of Libya that the landmass provides the
legal justification of entitlement to continental shelf rights, such that
a State with a greater landmass would have a more intense natural
prolongation. Nor does the Court consider, contrary to the contentions

advanced by Malta, that a delimitation should be influenced by the
relative economic position of the two States in question. Regarding the
security or defence interests of the two Parties, the Court notes that
the delimitation which will result from the application of the present
Judgment is not so near to the Coast of either Party as to make these

questions a particular consideration. As for the treatment of islands in
continental shelf delimitation, Malta has drawn a distinction between
island States and islands politically linked to a mainland State. In
this connection the Court merely notes that, Malta being independent, the
relationship of its coasts with the coasts of its neighbours is different

from what it would be if it were part of the territory of one of them.
This aspect of the matter also seems to the Court to be linked to the
position of the Maltese islands in the wider geographical context, to
which it will return.

The Court rejects another argument of Malta, derived from the
sovereign equality of States, whereby the maritime extensions generated
by the sovereignty of each State must be of equal juridical value,
whatever the length of the coasts. The Court considers that if coastal
States have an equal entitlement, ipso jure and ab initio, to their
continental shelves, this does not imply an equality in the extent of

these shelves, and thus reference to the length of coasts as a relevant
consideration cannot be excluded a priori.

Proportionality ...
- Proportionality (paras.

The Court then considers the role to be assigned in the present case
to proportionality, Libya having attached considerable importance to this

factor. It recalls that, according to the jurisprudence, proportionality
is one possibly relevant factor among several others to be taken into
account, without ever being mentioned among "the principles and rules of
international law applicable to the delimitation" or as "a general
principle providing an independent source of rights to areas of

continental shelf". Libya's argument, however, goes further. Once the
submission relating to the rift-zone has been dismissed, there is no
other element in the Libyan submissions, apart from the reference to the
lengths of coastline, which is able to afford an independent principle
and method for drawing the boundary. The Court considers that to use the

ratio of coastal lengths as self-determinative of the seaward reach and
area of continental shelf proper to each, is to go far beyond the use of
proportionality as a test of equity, in the sense employed in the case
concerning the Continental Shelf (TunisiaILibyan Arab Jamahiriya) . Such 1
use finds no support in the practice of States or their public
statements, or in the jurisprudence.

The delimitation operation and the drawing of a provisional equidistance
line (paras. 60-64)

In order to apply the equitable principles which were elicited by
taking account of the relevant circumstances, the Court proceeds by

stages; it begins by making a provisional delimitation, which it then
compares with the requirements deri.ved from other criteria which may cal1
for an adjustment of this initial result.

Stating that the law applicable to the present dispute is based on

the criterion of distance in relation to the Coast (the principle of w
adjacency measured by distance), and noting that the equitableness of the
equidistance method is particularly marked in cases where the
delimitation concerns States with opposite coasts, the Court considers
that the tracing of a median line between the coasts of Malta and Libya,

by way of a provisional step in a process to be continued by other
operations, is the most judicious manner of proceeding with a view to the
eventual achievement of an equitable result. The equidistance method is
not the only possible method, and it must be demonstrated that it in fact
leads to an equitable result - this can be ascertained by examining the
result to which it leads in the context of applying other equitable

principles to the relevant circumstances. At this stage, the Court
explains that it finds it equitable not to take account of the
uninhabited Maltese Psland of Filfla in the construction of the
provisional median line between Malta and Libya, in order to eliminate
the disproportionate effect which i.t might have on the course of this
line.

Adjustment ...Adjustment of the equidistance line, taking account especially of the
lengths of the respective coasts of the Parties (paras. 65-73)

The Court examines whether, in assessing the equitableness of the
result, certain relevant circumstances may carry such weight as to
justify their being taken into account, requiring an adjustment of the
median line which has provisionally been drawn.

One point argued before the Court has been the considerable
disparity in the lengths of the relevant coasts of the Parties. Here,
the Court compares Mal-ta's coasts with the coasts of Libya between
Ras Ajdir (the boundary with Tunisia) and Ras Zarruq (15" 10') and notes
that there is a marked disparity between the lengths of these coasts,

since the Maltese coaçt is 24 miles long and the Libyan coast 192 miles
long. This is a relevant circumstance which warrants an adjustment of
the median line, to attribute a greater area of shelf to Libya. However,
it remains to determine the extent of this adjustment.

A further geographical feature must be taken into consideration as a
relevant circumstance; this is the southern location of the coasts of
the Maltese islands, within the general geographical context in which the
delimitation is to be effected. The Court points to a further reason for
not accepting the median line, without adjustment, as an equitable
boundary: namely that this line is to al1 intents and purposes

controlled on each side, in its entirety, by a handful of salient points
on a short stretch of the coast (two points 11 miles apart for Malta;
several points concentrated immediately east of Ras Tadjoura for Libya).

The Court therefore finds it necessary that the delimitation line be

adjusted so as to lie closer to the coasts of Malta. The coasts of the
Parties being opposite to each other, and the equidistance line lying
broadly West to east, this adjustment can be satisfactorily and simply
achieved by transposiiig it in an exactly northward direction.

The Court then establishes what should be the extreme limit of such
a transposition. It reasons as follows: were it supposed that the
Maltese islands were part of Italian territory, and that there was a
question of the delimitation of the continental shelf be tween Libya and
Italy, the boundary would be drawn in the light of the coasts of Libya to

the south and of Sicily to the north. However, account would have to be
taken of the islands of Malta, so that this delimitation would be located
somewhat south of the median line between Sicily and Libya. Since Malta
is not part of Italy, but is an independent State, it cannot be the case
that, as regards continental shelf rights, it will be in a worse position

because of its independence. It is therefore reasonable to assume that
an equitable boundary between Libya and Malta must be to the south of a
notional median line between Libya and Sicily. That line intersects the
15" 10' E meridian at a latitude of approximately 34" 36'. The median
line between Malta and Libya (drawn to exclude the islet of Filf la)
intersects the 15" 10' E meridian at a latitude of approximately

34" 12' N. A transposition northwards of 24' of latitude of the
Malta-Libya median line would therefore be the extreme limit of such an
ad justment .

Havi ng . ..
2LMf Having weighed up the various circumstances in the case as
previously indicated, the Court concludes that a shift of about

two-thirds of the distance between the Malta-Libya median line and the
line located 24' further north gives an equitable result, and that the
delimitation line is to be produced by transposing the median line
northwards through 18' of latitude. It will intersect the 15" 10' E
meridian at approximately 34" 30' N. It will be for the Parties and

their experts to determine the exact position.

The test of proportionality (paras. 74-75)

While considering that there is no reason of principle why a test of
proportionality, based on the ratio between the lengths of the relevant
coasts and the areas of shelf attributed, should not be employed to
verify the equity of the result, the Court States that there may be
certain practical difficulties which render this test inappropriate.
They are particularly evident in the present case, inter alia because the
1
area to which the Judgment will apply is limited by reason of the
existence of claims of third States, and to apply the proportionality
test simply to the areas within these limits would be unrealistic.
However, it seems to the Court that it can make a broad assessment of the
equity of the result without attempting to express it in figures. It

concludes that there is certainly no manifest disproportion between areas
of shelf attributed to each of the Parties, such that it might be claimed
that the requirements of the test of proportionality as an aspect of
equity are not satisfied.

The Court presents a sumary of its conclusions (paras. 76-78) and
its decision, the full text of which follows (para. 79).

Operative provisions of the Court's Judgment

THE COURT,

by fourteen votes to three,

finds that, with reference to the areas of continental shelf
between the coasts of the Parties within the limits defined in the
present Judgment, namely the meridian 13" 50' E and the meridian
15" 10' E:

A. The principles and rules of international law applicable for
the delimitation, to be effected by agreement in implementation of the
present Judgment, of the areas of continental shelf appertaining to
the Socialist People's Libyan Arab Jamahiriya and to the Republic of
Malta respectively are as follows:

(1) the delimitation is to be effected in accordance with equitable
principles and taking account of al1 relevant circumstances, so as
to arrive at an equitable result;

2LMf (2) the.. .(2) the area of continental shelf to be found to appertain to either
Party not extending more than 200 miles from the coast of the
Party concerned, no criterion for delimitation of shelf areas can

be derived from t:he principle of natural prolongation in the
physical sense.

B. The circumstarices and factors to be taken into account in
achieving an equitable delimitation in the present case are the

following :

(1) the general configuration of the coasts of the Parties, their
oppositeness, and. their relationship to each other within the
general geographi cal context;

(2) the disparity in the lengths of the relevant coasts of the
Parties and the dlistance between them;

(3) the need to avoid! in the delimitation any excessive disproportion
between the extent of the continental shelf areas appertaining to

the coastal State and the length of the relevant part of its
coast, measured in the general direction of the coastlines.

C. In consequence, an equitable result may be arrived at by
drawing, as a first st.age in the process, a median line every point of

which is equidistant from the low-water mark of the relevant coast of
Malta (excluding the islet of Filfla), and the low-water mark of the
relevant coast of Libya, that initial line being then subject to
ad justment in the ligtit of the above-ment ioned circumstances and
factors.

D. The adjustment: of the median line referred to in
subparagraph C above i.s to be effected by transposing that line
northwards through eighteen minutes of latitude (so that it intersects
the meridian 15" 10' E at approximately latitude 34" 30' N) such

transposed line then constituting the delimitation line between the
areas of continental çhelf appertaining to the Socialist People's
Libyan Arab Jamahiriya and to the Republic of Malta respectively.

IN FAVOUR: Presldent Elias; Vice-President Sette-Camara;
--
Judges Lachs, Morozov, Nagendra Singh, Ruda, Ago, El-Khani,
Sir Robert Jennings, de Lacharrière, Mbaye, Bedjaoui; Judges ad hoc
Valticos, Jiménez de Llréchaga.

AGAINST: Judges Mosler , Oda and Schwebel. Annex to Press Communiqué No. 85/11

Summary of the Declaration and Opinions appended to the
Judgment of the Court

Declaration by Judge El-Khani

Judge El-Khani voted in favour of the Judgment, but is of the view
that a line located further to the north than the proposed linewould
have been more in accordance withproportionality while satisfying one
requirementsof equity.

Se~arate O~inion bv Vice-President Sette-Camara

Vice-President Sette-Camara, while concurring in voting for the
Judgment, filed a separate Opinion for the following reasons:

1. The natural prolongation doctrine as established in the 1969

North Sea Continental. Shelf Judgment is still the main pillar of the
concept of continental shelf. Although the original concept of the
Ispecies of platform" has been replacedby a gradually more juridical
definition of the continental shelf, natural prolongation remains
the basic element of the definition of continental shelf.
Article 76, paragraph 1,of the 1982 Montego Bay Convention itself

confirms the reliance on naturalprolongation.

II 2. Vice-President Sette-Camara sees no need to resort to the
distance principle" as defined in the final part of paragraph 76 of
the 1982 Montego Bay Convention as a legal foundation forthe Judgment.
The coasts of Malta and Libya are barely180 miles apart and the
specific geographical situationdealt with by that proviso does not

exist in the present case. Even if we consider the said proviso as
containing a rule of customary internationallaw - discarding conventional
law because the Convention is not in force - it has no relationwith
the circumstancesof this case.

3. Since neither of the Parties has claimed an exclusive economic
zone the opinion finds unnecessary and out of place the considerations
of the Judgment on this specific subject.

4. Although con~rurring with the method of establishinga median line

between theMaltese and Libyan coasts and then correcting its course by
transposing it northwards by 18 minutes, the opinion fails to subscribe
to the way the Judgment reached a line on the extreme northern parameter
for that operation. The imaginary exerciseof drawing a "notional"
median line between the coasts of Sicily and Malta is rejected as an
artificial refashioningof geography. Vice-PresidentSette-Camara

believes that it would be much simpler to attribute partial effectto
the coasts of Malta, to be balanced up with similar partial effectto
be given to the flagrant disproportionalityin the lengths of the
relevant coasts, so as to rench an equitable result.

Separate...Separate ad hoc Jiménez de Aréchaga

The authors of the joint separate Opinion agree with many of the
Court's findings and conclusions, but observe that the Judgment does
not pronounce on Malta's trapezium claim, which they find excessive
and contrary to the practice of States in enclosed or semi-enclosed

seas.

They also believe that it would have been more equitable to correct
the median line northwards by 28', thus giving Malta a 314 effect,
achieving a proportionality ratio of
1 to 3.54 and dividing equally
the area in dispute.

Separate Opinion by Judge Mbaye

Judge Mbaye voted in favour of the Judgment since he endorses the
conclusions which the Court has reached and accepts, on the whole, the

reasons for them.

His Opinion deals with two points: what he has called the "two
meanings of the concept of natural prolongation" and the circumstance of

the "considerable distance between the coasts of the two States".

As far as the first point is concerned, although Judge Mbaye states
that he does not disagree with the Court, especially as regards the
finding that natural prolongation in the physical sense cannot, in the
present case, have any effect on the delimitation of the areas of

continental shelf appertaining respectively to each Party, he expresses
regret that the Court, which he finds has made a highly perceptive
analysis of the development of customary international law relating to
the continent al shelf by drawing a distinction between natural
prolongation as a "legal principleU and natural prolongation in the

"physical sense", has not taken the opportunity to bring out this
fundamental idea, which marks a turning point in the development of this
area of the law as it emerges from the United Nations Convention on the
Law of the Sea of 10 December 1982.

As for the second point, Judge Mbaye questions whether the
"considerable" distance between the coasts of the two States can be
described as a "relevant circumstance", such as to justify in any way the
transposition northwards of the median line initially drawn by the
Court. According to Judge Mbaye, the decisive reason for such a

transposition is the difference in the lengths of the coasts, and also
the general configuration of these coasts and the geography of the region

Separate ... Separate Opinion by Judge ad hoc Valticos
--

While concurring with the Judgment as a whole, Judge ad hoc Valticos
emphasizes that, by confining the area to which its decision applies to a
limited zone, in order to leave unaffected the interests of Italy, the

Court points out that Malta and Libya remain free to examine together
with Italy the question of the delimitation, as between these three
countries, of areas outside this limited zone. He states his full
agreement as to the laick of relevance of the geological and
geomorphological factors; nevertheless, he considers that the line of

delimitation should haive been the median line between Malta and Libya for
various reasons, incluiding the position of opposite countries, the new
trends in international1 law, the practice of States and the task of the
Court, which is to def'ine the appropriate rule of international law. He
takes the view that the factor of the difference in lengths between the
coasts should not have been taken into consideration, and did not warrant

any "correction" of the median line. He also considers that account
should have been taken of the economic factors involved and of security
needs , circumstances which const itute additional justification for the
median line solution.

Dissenting Opinion by Judge Mosler

Judge Mosler is of the opinion that the median line between Malta
and Libya constitutes an equitable solution in the circumstances of
the case. He criticizes the global removal of the median line by

18 minutes northward and the method used by the Coiirt in arriving at
that result.

Dissentine. ..Dissenting Opinion by Judge Oda

In Judge Oda's view, the Court has not fully grappled with recent
developments in the law of the sea and is in danger of identifying the

principle of equity with its own subjective sense of what is equitable in
a particular case. He finds that the area to which the Court has
confined the operation of its Judgment is misconstructed through
overconcentration on third-State interests which have not been judicia1i.y
established. Furthermore, the Judgment's employment of a proportionality

test to verify the equity of the suggested delimitation is paradoxical,
in that the necessity of defining the relevant area and coastlines for
that purpose is first propounded and then this exercise is abandoned on
the ground of its impossibility. The adjustment or transposition of the
LibyaIMalta median line so as to shift it 18 minutes northwards on each
meridian appears to Judge Oda to be groundless. Despite the Judgment's

professing to have taken the ~ib~a/Malta median line as an initial or
provisional delimitation, the final line suggested as a consequence of
the 18-minute shift is devoid of al1 the properties inherent in the
concept of equidistance, so that this resultant line cannot properly be
regarded as an adjusted median. In effect, the technique of the Judgment
has involved viewing the entire territory of one Party as a special

circumstance affecting a delimitation (SicilyILibya) which the Court had
no cal1 to make and which excludes that Party. In that context, the
partial effect that may sometimes be allowed to an island is interpreted
in a manner completely different to that featured in the 1977
Anglo-French Arbitration. In Judge Oda's view, the "half-effect" of an

island had also been misinterpreted by the Court's 1982 Judgment in the
Tunisial~ibya case and the 1984 Judgment of a Chamber of the Court in the
Gulf of Maine case. To clarify his criticisms, he analyses the relevant
sections of those Judgments as well as the "proportionality" test as
originally mentioned in the North Sea Continental Shelf cases.

Judge Oda remains of the view that the equidistance/
special-circumstances rule indicated in the 1958 Continental Shelf
Convention is still part of international law and, furthermore, that the
role of special circumstances is not to justify any substitute for the -
equidistance line but to enable the bases of that line to be rectified
with a view to the avoidance of any distorting effect. In the present

case, Judge Oda suggests that the island of Filfla should be ignored in
plotting an equidistance line between Libya and Malta. The resultant
line would then in his view have constituted a correct delimitation.
Drawing it would not, in the circumstances, have had any legal impact on
the claim of any third State, but would have implied that neither Libya

nor Malta was entitled to any claim against the other in any area beyond it.

-issenting ...Dissenting Opinionby Judge Schwebel

Judge Schwebel dissents from the Judgment intwo respects. In his
view, the line of delimitationwhich it lays down has been unduly truncated
to defer to the claims of Italy; and the line is not a median line between

the opposite coasts of Libya and Malta but a "corrected"median line
which, as rendered,is incorrect.

Judge Schwebelmaintains that,while a request by Italy to intervene
in the case between Libya andMalta had been denied by the Court, today's
Judgment grantsto Italy al1 that it sought in its request to intervene.

The Court justifies this implausibleconclusionby holding that the
Special Agreement between Libya and Malta gave the Court jurisdiction
only to decide questions ofthe delimitationof the continentalshelf
Iwhich appertains" to Malta or Libya, and not to any third State. But
the Special Agreement did not speak of areas which exclusivelyappertain

to a party. Moreover, in boundary cases, as previous judgments of the
Court indicate, the Court neednot decide in the absolute. Thus the Court
could, as between Malta and Libya, pass upon areas to which Italy as well
as Malta or Libya lay claim, while reserving any rights of Italy. That
this interpretationof the Special Agreement is the better interpretation

is shown by the fact that both Parties to it, Malta and Libya, maintained
it. But the Court, contrary to the rules of treaty interpretation, has
taken no account of the interpretationwhich the Parties placed upon
their agreement. Judge Schwebel doubts the proprietyof the Court's
Judgment deferring so absolutely to Italy's claims for these reasons,
and because it appears to place in the hands of a third party the

determination ofthe extent of the jurisdictionwhich two other Parties
to a case conferredupon the Court.

As to the location of the line of delimitation,while Judge Schwebel

agrees that, in a case of purely opposite States, a median line is the
correct starting point, he does not agree with the Court's decision to
transpose theline substantiallyto the north and therebyto accord Libya
a much larger continentalshelf than a median line would. The Court has
relied essentiallyon the fact that Libya'scoasts are much longer than
Malta's and that, in the general geographicalcontext, the Maltese islands

are a small feature which lie south of a continentalmedian line. But
the Court has failed to show that these circumstancesare probative or
even relevant. They provide no reason for discountingthe whole of the
islands of Malta - which together constitute that independent State -
as if they were the anomalous dependent islands of a mainland State.

The general geographiical context - which the Court in any event sharply
narrowed to defer tclItaly's claims - worked againstMalta's position no
more than Libya's. As for the fact that Libya'scoasts are longer, since
it has always been acceptedthat the base of a triangle is longer than
the apex, it naturally follows that thereis a larger area lying off khe
base (Libya) than the apex (Malta). But the Court goes beyond that

fact to allot Libya a bonus because its coasts arelonger. The Court
denies that it does so for reasonsof proportionality. But it supplies
no alternativejustification. It ratherseems to base its Judgmenton
some intuitive instinct to give Libya a bonus because its coasts areso
much longer thaiiMalta's. Moreover, the Court offers no objective,

verifiable link between the circumstancesit regards as relevant and
the determinationof the precise line it regards as equitable. It fails
to show that those c:ircumstances dictate the adjustment to the extent
of that adjustment.