Application for Permission to Intervene by the Government of the Republic of Malta

APPLICATION
FOR PERMISSION TOINTERVENE

REQUÊTE
ÀFIN D'INTERVENTION APPLICATIOK FOR PERhlISSIOiV TO IKTER\'KKE

BY THE GOVEHNLlENT OF THE REPUBLIC OF hlALTA

The Registrar
International Coiirt of Justice
The Hague

1. On behalf of the Government of Malta 1have the honour
ful to invoke Article 62 of the Stalute of the International Court of Justice
and - for the limited purposes and objects set out hereafter- to reqtiest
the Co~ifi'spermission to intervene in the ciirrent proceedings before the
Court (herein called the Lib.i~u/T~~iiisirase) concerning the continental

shelf areas lying in the vicinityof Trinisia and the Libyan Arab Jamahi-
riya :and
(11)10 state that the Government of Malta hereby appoints as its Agent Dr.
Edgar Mizzi.Attorney-General.and H.E. Emaniiel Attard Bezziiia.Ambas-
sador OCMalta to The Hague. asCO-Ageiit,and that their address for service
shalt be c/o Koninginnegracht 27, The Hague. Each of the said Agents
shall separately have fiill representation.

1. ARTICLE 62 OF THE STATUTE

2. Article 62 of the Court's Statiite provides as follow:

"1. Shoiiid a Slate consider that ithas an interai of a legal nature
which may be affected by the decision in the case. it rnay subrnit a reqiiest
to the Court to be permitted to intervene.
2. It shaH be for the Court to decide tipon this reqiiest."

3. No other condition than that indicated in Article 62 is prescribed by the
Statiiteas necessary to found a reqtiest for permission to intervene in a case
before the Court. Accordingly the present request is made on the basis that
Malta is a State which "considerls) that it has an interest of a legal natiire
which may be affected by the decision" to be given by the Court in the Lih~ul
Ti~riisiucase.
4. Since, at the present stage, it cannot be known what the decision of the
Court in the above-mentioned case will be, it eqtially cannot be known
whether any legal interest of Malta will in Cactbe affected by that decision. or
not. This miist therefore be a matter of possibilities- as Article 62 of the
Statiite recognizes by its use of the phrase "which may be affected". In

consequence Malta respectfiilly submits that it rniist be siifficien1to demons-
trate the existence of reasonable graunds for thinking that the decision. what-
ever it is. may have such an effect. These grounds will now be stated. and it is
siibmitted that they satisfy the reqiiiremeiits of Article 62. CONTINENTAL SHELF

5. ~ttention is drawn in the first place to a general fact. namely thai Malta
is a srnall island State. with virtually no natural resources. and dependent for
its viability on imports. including imports of oil. In consequence the question
of the extent and iimits of ils continental slielf. and of the resources of that
shelf. is a matter of vital concern to Malta.
6. Although the nature ofMalta's legal interest that may be affected by the
Court's decision in the Libj>a/Turrisiacase should be evident, hlalta has had to
rely entirety on the indication of the character of the case provided by the

ternis of the Libya/Tunisia Special Agreement or Cornpromis of 10 June 1977.
as published - since X,lalta'srequest. dated 18 August 1980. to be furnished a
with copies of the written pleadings in the case was not granted (see letter from
the Repistrar dated 24 h'ovember 1980).
7. There can be no doubt that hlalta's interest in her continental shelf
boundaries is ofa legalcharacter since the continental shelf rights of States are
derived [rom law. as are also the principles and rules on the basis ofwhich
such areas rire to be defined and delimited. In other words these rights are
created and protected by law. and the question of the proper spatiat extent of
the repions over which they can beexercised by any given State isalso a matter
of law.
8. The circumstance that. as an island some 200 miles distant from the
Afriçan coast. Rlalta stands in a different geographical relationship to Libya
.and Tunisia from that in which those two States stand to each other. does not

affect the faci that there are undoubtedly a nurnber of ways in which the
decision to be given by the Court in the Lib~~alTutrisiucase not only could. but
must. affect the question of hlalta's continental shelf righis and boundaries.
The principal ones are stated in the following paragraphs.
9. In the first paragraph of Article I of the Special Agreement or Coinpromis
between Libya and Tunisia providing for a reference to,the International
Court. the Court isrequested 10 "render itsjudgment" on

"What principles and rules of international law may be applied for the
delimitation of the area of the continental shelf appertaining to Libya and
Tunisia respectively .. .(and to) take its decision according to equitable
principles. and the relevant circumstances which characterize the area, as
well as the new accepted trends in the Third Conference on the Law of
the Sea."

in contemporary international law relating tocontinental shelf boundaries, it is
impossible IOdraw any hard and fast distinction between the legal principles
and rules. or the equitable principles. that respectivelyapply to the situations of
States in different geographical relationships with oneanother.
10. In Xlalta'scase there is a continental shelf boundary with both Libya
and Tunisia. and the boundaries between al1three States corzverge a[ a single,
as -*elurrdeieri~~irzep.oirii. Given the proximity of Libya. Tunisia and hlalta.
the "principles and rules of international law" applicable to the delimitation of
the Libya/Tunisia boundary are bound to be relevant to the delimitation of the
X,ialta/Libya and h.lalta/Tunisia boundaries. Furthermore. there is a substan-
tial probability that many of the "relevant circumstances" - geographic.
geologic. geomorphic. economic. and other - w hich affkct the determination
of the boundary between Libya and Tunisia would also be relevant to the

determination of Malta's boundaries with those two States. The Court's treat-
ment of such factors in the LibyalTurrisia case is thus bound to affect the APPLICATION TO INTERVENE 259

ireatment ofthe same factors in a subsequent case involving hlalta's boun-
daries.
11. In these circurnstances. it rnug also be the case that the claritication
which the second paragraph of Article I of the Libya/Tunisia Special Agree-
ment or Coi~rpmrnis requests the Coun to effect concerning "the practical
method for the application" of the principles and rules of delimitation which
the Court enunciates. will equally be liable to have a bearing on Malta'slegal

interest.
12, hfalta therefore has to contemplate.that whatever principles and rules.
le~alor eauitable.and the practical methods of their application. are laid down
bi the CO;III(and even rec&nition of any specialcircÜhstances characterizing
the area) will be cited and a~~ealedto in any dispute that exisor subsequently
develops regarding hlalta'ss~tuation as a ~iate with a hlediterranean continen-
tal shelï in the same general region as those of Libya and Tunisia. Yet withoui
permission to intervene. hlalta will have liad no opportunity to address the
Court on rnatters which must directly and vitally affect it- in contrast to the
opportunity which those States will have had in the course or the preseni
proceedings.
13. In sofar as hlalta. without knowledge of the written pleadings in the
Li&a/Tut~isia case.is able to assess the situation. examplesof specific issues

that rnay arise in the Libya/Tutiisia case. and be pronounced upon by the
Court - in which event they must affect hlalta's legal interest as above
described. and almost certainly influence any subsequent decision concerning
Malta's continental shelf boundaries - are as follows :
II) the question of the parîicularfactors. equitable or other. which determine
the character of boundaries in the seabed bordered by Libya. Tunisia and
hlalta
;
(2) the question of whether equidistance as a principle or method of delimita-
(ion gives effect10 such factors in accordance with international law :
(3) the effect or any geornorphic features of the relevant seabed areas that
separate hfalta irom the African coasts :
(4) the question of applicable base-lines. including bay-closing lines;
(5) the question OCwhether there is a concept of coastlinc proportionality
which a Srale-may validly invoke as a method of delimiting ils seabed
ùoundaries with olher States.

14. Finally. recalling the passage in the Libya/Tunisia Special Agreement
or Curnproiltiswhich asks the Court to take account of "new accepted trends in
the Third Conference on the Law of the Sea", hlalta submitsthat a decision by
the Court identifying any such trends. assessingthe degree of their acceptance.
and applying (hem to continental shelf boundaries in the region. would
undoubtedly affect hlalta's legal interest in respect of its continental shelf
boundaries in that .sameregion.
15. hlalra iherefore submits ihat there can be no room for any reasonable
doubt that she possessesa legal interest which, in the terms of Article 62 of the
Statute. "may be affected". by the Court's decision in the case.

111.ARTICLE BI OF THE COURT 'SULES

16. While the substantive condition of the grant of permission to intervene

is necessarily governed exclusively by Article 62 of the Court's Statute. the
procedural aspects of the making of the request are indicated in Article 81of260 COhTlNENTAL SHELF

the Rules of Court. The controlling role of the Statute in this regard is

confirmed by the opening words of Article 81 which speak of an application
"to intervene ~rtrdeilieieruisu/ Article62 of the Statute" (emphasis added).
17. Paragraph 1 of Rule 81specifiesiirrcJrdia that the application "shall be
filed as soon as possible. and not later than the closof the written proceed-
ings". although in "exceptional circ~imstances"its submission at a later stage
rnay be adrnitted. Malta'spresent application is duly submitted before the close
of rhe written proceedings in the L~i~u/Tutiisio case. It was no( s~ibrnitted
earlier becaiise, before finally deciding whether or not to request permission to
intervene, Malta wished, if possible, to be fi~rnishedwith copies of the written
pleadings in the case and to have time to st~idythem. As already mentioned in
paragraph 6 above, a request to that effect, made iinder Articl53,paragraph
1.of the Riiles, was not granted.
18. Paragraph 2 of Article 81 of the Rules begins by providing that the
application shall state the name of an agent and specify the case to which it
relates.On these matters Malta refers the Court to paragraph I above.

19. Paragraph 2 of Rule 81 goes on to provide, lirst, that the application
shall setout 'fa)the interest of a legal nature which the State applying to
interveneconsiders rnay be affected by the decision in that case". As to this, the
nature of Malta's legal interests has been stated in paragraph5-14 above.

20. Next. paragraph 2 of Rule 81 provides that the application shall set out
'Yb) the precise object of the intervention". The precise object of Malta's
intervention in the LibyalTi~iiisiocase would be to enable Malta to sribmit its
views to the Cotirt on the issues raised in the pending case, before the Court
has given its decision in that caseItfollows that the purpose of the interven-
tion isto give theCourt an opportunity to hear the submission of Malta, whose
specific legal interests are liktobe affected by its decision. In the absence of
such an intervention, Malta'sparlicular views as to the manner in which such
points as those mentioned in paragraphs 10-14above are to be resolved. would
remain unheard by theCourt.The perrnissibility ofan intervention of this kind
is irnplicit in the whole character of Article 62 and no other object appears to
becontemplated by it.
21. For this reason the basis of the present application for permission to
intervene would not Iapse,or become otiose or "moot". merely because Malta
was or became a party to principal proceedings of a similar kind - whenever
the decision in those proceedings was to be given later than in the proceedings
which are the subject of the intervention. Eqiially, the prospect, indicated in
paragraph 5 of the Report tothe Security Council by the Secretary-Ceneral of
the United Nations on the hlission of his Special Representative toMalta and
the Libyan Arab Jamahiriya (SI14256. 13 November 1980).of an early ratifi-
cation of the agreement with Malta siibmitting to the Court questions relating
to the delimitation ofthe continental shelf between the two States. does not
diminish the justification for the present application. Indeed, the similarity
between, if not the identical character or. someof the important issues in the

Lihj~u/T~iiiisiacase and the prospective Libya/Malta case, and therefore the APPLICATION TO INTERVENE 26 1

likely impact of the Court's decision in the pending case upon a subsequent
decision in a LibyaIMalta case - as well as the circumstance that direct
Libyan/Maltese proceeding~may be probable - serve rather to strengtheo the
need for the present application.
22. At the same time it must be stressed that it is not Malta'sobject, by way,
orin the course of intervention in the Lib~~a/T~~tiisiu.casteo, obtain any form
of ruling or decision from the Cotirt concerning its continental shelf boun-
daries with either or both of those countries.

SuhpurugvupJ~(c)r$Poragraph 2 of Rule 81 :~lirQtrestioiof "Ai~yBusis of
Jiirisdictio"i

23. This subparagraph, which requires the Application to set out 'Tc)any
basis of jurisdiction which is claimed to exist as between the State applying to
intervene and the parties to the case", did not figure in any form in previous
versions of the Rules, and it therefore embodies a new presentational require-
ment for a request for permission to intervene. lt cannot of course have created
a new substantive condition of the grant of such permission ;for that would
have been to ernploy the Court's rule-making power for the purpose of
introducing a requirement not expressed, and not to be found by any process
of necessary implication, in Article 62 of the Statute which must govern and
prevail. It haç therefore to beassumed that the statement for which subpara-
graph (c) provides is required as a matter of information for the Court regar-
ding the jurisdictional relaiionship (ifany) of the States concerned. lndeed the
use of the word "any" in relation to "basis of jurisdiction" instead of "the"

basis. confirms this interpretation and implies lhat intervention, as such, isnot
dependent on the existence of a basis of jurisdiction as between the State
seeking to intervene and the parties Cothe case.
24. Paragraph 22 above contains a declaration by Mslta that ilis not the
object of the intervention sought by the present application, to obtain from the
Court any riiling or decision concerning h~lalta'scontinental shelf boundaries.
Since, therefore. the intervention would not seek any substantive or operative
decision against either party. it would appear that no question ofjurisdiction in
the strict sense of the word could arise as between Malta and the parties to the
Libil~lTiiiiisia case- for where relevant at al1in the context of intervention,
jurisdictional questions coiild be so onlyin different circumstances.
25. Siibject to these observations, Malta'sposition is as follows :

(a)She has made a Declaration (dated 6 December 1966)under Article 36,
paragraph 2. of the Court's Statute (the so-called "Optional Clause"), accep-
ting the Court's obligatory jurisdiction in terms which are already on
record.
(b) Malta has subsequently, with a view to assiçting the initiative taken by the
Secretary-Generai of the United Nations - as referred to in paragraph 21
above - communicated to him a second Declaration, dated 2 January
1981, enlarging the scope of iu acceptance of the Court's compulsory
jurisdiction for a certain category of disputes, in terms which will have
been brought to the knowledge of the Court.
(CI It follows from this second Declaration that any State can at any time start
proceedings against Malta before the Court in regard to any dispute concer-
ning the question of what principles and rules of international law are
applicable or may be applied. and/or how they are to be applied, to the
delimitation of areas of the continental shelf in the Mediterranean Sea
appertaining respectively to Malta and to such other State.262 CONTlNEhTALSHELF

IV. CONCLUSION

26. In the light of the foregoing observationMalta respectfully requests
permission to interveneinthe present LibyaITunisia proceedings.
27. It is not considered necessary to make any further observations at the
present stage. If need be,lta will asktobe heard orallyin due course, and
accordingly reserves al1additional argument for the present.

28 January 1981.
(SigtredDom MINTOFF

Prime Minister and Minister
of Foreign Affairofthe
Republic of Malta.