Reply of the Republic of Malta

REPLYOF THE
REPUBLICOF MALTA

RÉPLIQUEDE LA
RÉPUBLIQUEDE MALTE 1. This is the Reply of the Republjc of Malta filed pursuant to the
Order made by the President of the Court on 21 March 1984.
2. The Reply, which isdivided into six Parts, is intended primarily to
rebut the arguments of the Socialist People's Libyan Arab Jarnahiriya
tending to distort the geographical and legal framework of the present
case. The Reply, therefore, aiso restates the principles and rules of
international law which, in the view of Malta, are applicable for the
purposes of the delimitation of the continental shelves of Malta and
Libya. Theseare preceded by an opening Part in which Malta deals
with some prelirninary points arising out of Part 1 of the Libyan
Coun ter-Mernorial. PART 1

SOME FACTUAL ELEMENTS

INTRODUCTION

3. The Libyan Counter-Memorial deals in Part 1,under the heading
of "The Factual Elements", with three matters: (1) the background to
the dispute;(2)the physical factors of geography, geomorphology and
geology; and (3)economic and other considerations introduced by
Malta. The second oî these matters - the physical factors- willbe dealt
with in Parts II and III below. The first and third of these matters will

be dealt with in the present Part.
4. This Part willnot attempt to restatethe whole of Malta's position
regarding the background to the dispute and the economic and other
considerations. The nature of the items under reply calls for an
approach which is necessarily selective.On the whole, this Part of the
Reply will follow the headings of Part 1, Chapters 1 and 3, of the
Libyan Counter-Mernorial. However, the fact that Malta does not in
this Reply deal with every aliegatjon of fact made by Lihya which rnay
cal1for comment or qualification should not be regarded as meaning
that Malta accepts the correctness or validity of al1that is said in the
Libyan Counter-Mernorial. Should the Libyan Reply, or statements
which Libya may make during the Oral Hearings, indicate that other
matters require comment, Malta reserves the right to deal with them at
the latter stage. CHAPTER 1

THE BACKGROUNDOF THE DISPUTE

5. In the opening Ctapter of the Libyan Counter-Mernorial some
attention is devoted to what is described as Malta's "'status quo'

contention, the total invalidity of which is apparent".'
6. Libya asserts, first, that "Malta has chosen to ignore the effectof
the Libyan legislation of 1955 which patently did not respect 'the
equidistance line' forthe northern boundary of Libyan continental shelf
jurisdiction in the direction of Malta".'
7. The fact is that non-recognition by Libya of an equidistance line
for the northern boundary of its continental shelf is by no means
evident from a consideration of that legi~lation.~The relevant provision
of the Petroleum Law OC1955 is Article 4, entitled "Boundary". It
provides that the Law shall

"extend to the seabed and subsoil which lie beneath the territorial
waters and the high seas contiguous thereto.. . under the control
and juridiction.. .of Libya".
It adds that if there is doubt as to the boundary of the zone it shall be

deterrnined by the Petroleum Commissioe. There is thus nothing in the
legislation whichsuggests non-acceptance of an equidistance line as the
northern boundary of the Libyan continental shelf. Libya simplydid
not determine that boundary, but leftit open - thus providing no overt
"opposition" to any clairn which Malta might make.
8. Nor was the matter made any clearer by Libya's Petroleum
Regulation No. 1of 1955.4In definingin Article 2 the "First Zone", the
Regulations stated that it

"consists of the Province of Tripolitania bounded on the North by
the limits of territorial waters and high seas contiguous thereto
under the control and jurisdiction of.. .Libya ...".
The description of the Second Zone also contained identical words
relating to Cyrenaica. The accompanying sketch mapS rnerely shows

Libyan~o~nter-~ernorial, p. 9, para. 1.02.
' Ibid.pp.%IO. para.1.04.
' Libyan Petroleum Law1,955,LibyanMemorial, Annex 32.
' LibyanMemorial, Annex 33.
Ibid.atend of Arabictext.136 CONTINENTAL SHELF [91

land boundaries stretching northwards into the Mediterranean, but the
projection does not go anywhere near the equidistance line at those
longitudes. This is certainly no indication that Libya was seeking to

assert a claim even to an equidistance line, let alone to a line lying
north of an equidistance line.
9. It appears that apart from actions specifically taken in relation to
its litigation with Tunisia and Malta and the boundary implications of
its grant of concessions, Libya has never given any publicity to any
clairn to continental shelf boundaries. No statement regarding Libya's

position appears, for example, in the volumes of the United Nations
Legislative Series containing "National Legislation ... relating ... to
the Continental Shelf.. . ",' whereas Malta's legislation of 1966 -
containing a reference to the median line - appears in the United
Nations volume for 1974, having been cornmunicated to the United
Nations in 1972.2

10. Libya further asserts that "the plain fact is.. . that ... [Malta's]
1966Continental Shelf Act.. .did not cal1for any reaction on the part
of Lihya"and ohservesthat "Maltadid not notify the 1966Continental
Shelf Act to Libya".3The assertion assumes that notification is called
for. But in international law there isno such obligation. As the Court has
itself observed in the Norweyiun Fislzrries case the duty rests on the

State which may be afiected by adverse legislation to keep itself
informed of such legislation and to react prornptly to it.4 In any event,
there is no room for any suggestion that Libya could have been
unaware of Malta's reliance upon the equidistance approach. In truth,
"the plain fact" is that as early as 5 May 1965Malta had addressed to
Libya a Note Verbale informing Libya of Malta's intention to adhere

to the 1958 Convention on the Continental Shelf and to be guided by
the equidistance provisions of Article 6(1). As pointed out in the
Maltese Counter-Mernorial, this Note concluded with the words?

"the Goverriment of Malta will be grateful to know that the
Government of Libya is in full accord with this determination".

' See, for example,ST/LEG/SER.8/15 (1970)or STILEGISEK.B/16(1974).
Naiionol Legislurionand Treoriesreluringto rLaw ujthe Sea. STILEGJSER6 . /16,
p. 'Libyan Counter-Mernoriap l.p.10-11, para.1.06.
The relevant passageof the Judgrnentof the Court is so striking as to rnerit
quotation:

"The United Kingdom Government hasargued that the Norwegian system of
delimitation wasnot knownto itand thatthe system thereforelackedthe notoriety
essentialtoprovidethe basisof an historictitle enforceable againstit.The Courtis
unableto accept this view.As a coasralState in the North Seo,greatlyinterestedin
fisheriesin thwea, asa maritime Powertraditionallyconcernedwiththe law of the
couldnnornhace heen ignorant of'the decree 1969owhich had,ateonce provokeda
requestforexptanationsbythe Frenchgoverfiment.How,knowingof' if,could ithoce
beenunderanj misapprehensionsas IOthesigniftcancoj'itrerm ..."(I.C.J. Reports,
1951,pp. 131139. Emphasissupplied).

MalteseCounter-Mernorialp , . 85, para.183.[iol REPLY OF MALTA 137

And Malta followed this up on 19 May 1966 by sending to the
Secretary-General of the United Nations a declaration giving notice of
succession to the Geneva Convention on the Continental Shelfand thus
publicly proclaimed that its position regarding the boundaries of its
continental shelf would be determined within the frarnework of Article

6 of that Convention.

2. EXCHANG ESTU'EENTHE PARTIE SN 1972-73

11. Libya appears to consider it material to mention what itcares to
cal1"the mystery surrounding 'Malta'sbaselines'".' The fact that Libya
finds it appropriate to make something of this point is perhaps more

significant than the point itself. The precise delineation of Malta's
baselines has never been a relîvant issue between the Parties. Certainly
that delineation is a material fact in so far as the equidistance line
between Malta and Libya is 10 be measured, on Malta's side, from
those baselines. But the elements in it were identified to Libya's
representatives in July1973,as is evident from the fact, acknowledged
by Libya in paragraph 1.10 of its Counter-Memorial, that discussion
took place regarding the position of FiIfla, upon which there are three
basepoints, Nos. 22,23 and 24. In no subsequent discussions did Libya
indicate any difficultyfrom any supposed uncertainty regarding Malta's

baselines.The lines are clearly set out in Map No. 2 in Vol. III (Maps)
of Maltais Mernoriai.
12. Contrary to Libya'scontention in paragraph 2.35of its Counter-
Memorial, Malta has not presented its baselines for the purpose of
showing "the general direction of various portions of the coasts of the
Maltese Islands". Malta's case does not involve reliance upon any
assertion of a "general direction" of its coasts. That concept reflects a
projection by Libya of thinking material to ifs own case, but not to
Malta's. Moreover even if Malta had not drawn any baselines the
operation of any system of base points on Malta's coasts would have

led to a median line not significantly different from the one actually
used by Malta.
13. For some reason, not specified, Libya appears anxious to reject
the statement made in paragraph 72 of the Maltese Memorial, that Mr
Ben Amer suggestedon behaif of Libya in the meeting of 10April 1974
"that each side should abandon its position in favour of a compromise
proposal". To this end, the Libyan Counter-Mernorial states thatZ

"to avoid any risk of misunderstanding, it should be noted in this
connection that the rernark, attributed in paragraph 72 to Mr Ben
Amer, about a compromise (said to have been made on 10 April
1974)related not tothe substance but to the means of resolving the
matter".

'LibyanCountcr-Mernorial.. 13,para. 1.11
'Ibid., 14,para,1.13(lasi sentence).138 CONTINENTAL SHELF [il]

This is contrary to the facts as known to Malta. From Malta's notes of
the meeting between the Prime Minister of Malta and Minister Ben
Amer it emerges clearly thaat one stage, when both parties still stuck

to their original stand, Mr Ben Amer proposed that "both sides would
forget their stands and would reach a compromise agreement". Prime
Minister Mintoff immediately reacted by çaying that that proposa1 (i.e.
a compromise agreement)
"had already been made before through Mr Ben Amer and that he

had already informed Mr Ben Amer himself and later also the
President that this was not acceptable".'

14. In paragraph 1.14 the Libyan Counter-Mernorial appears lo
attach "particular significance" to "the omission in the Maltese
Mernorial of referenceto Malta's 1970offerfor bidding for two 'blocks'

to the north and east of Malta mentioned in paragraph 4.29 of the
Libyan Mernorial.. .".What the relevance of this "omisçion" to the
present case may be is far from clear, since the issue before the Court
relates to the boundary south of Malta. But the Libyan Counter-
Memorial then goes on to say that

"it was not until the end of May 1974that Malta in fact purporied
to extend its reach southward in the direction of 'Malta's
Equidistance Line'by the grant of the concession to Texaco Malta
Inc.".
That is not entirely true. The process of granting concessions to the

south of Matta had begun three years earlier with the licence to
Aquitaine in Block P3 of the Area No. 1.This can be seen clearly from
Map No. 3 in Volume 111of Malta's Memorial illustrating the grant of
concessions by both Parties.
15. Paragraph 1.16 of the Libyan Counter-Memorial appears to
make an issue out of the sequence of events in the grant of concessions.
The facts are hardly disputed and are set out in convenient form on
Map No. 3 of Volume III (Maps) of Malta's Memorial.
16.Malta takes this opportunity, however, to observe that the dates
set out in footnote 1 to paragraph 1.17 of the Libyan Counter-
Memorial do not seemto tie in with, at any rate, orle of the documents
filed with the Libyan Memorial. These dates purport to represent a
"chronology of events in 1974" and begin with a reference to the

conclusion on 14 April of "Principles of Agreement" between Libyaand
Total. Libya invokes this episode as revealing that "Libya entered into
agreements before the Texaco concessions granted by Malla". But the
letter from Total to the Chairman of Malta's Oil Cornmittee, dated 31
July f975 ,oes not support this po~ition.~In that letter Total describes

See Annex 1ofthiReply.
SeeLibyan MemorialDocumcntary AnnexNo, 57.[121 REPLY OF MALTA 139

to the Chairman the basis on which Total was operating in the area.
The letter does not refer to any "Principles of Agreement" of 14 April
1974. Instead it refers to a contract
"concluded on 15 October 1974 with the Libyan NOC duly
aurhorized to this effectby a Libyan law of 23 September 1974,and
that this contract was ratified by a law promulgated by the

Revolutionary Council of the Libyan Arab Republic on 13
November 1974".
Malta therefore also takes this opportunity to again invite Libya to
produce to the Court, in time for examination before the commence-
ment of the Oral Hearings, the texts of the "Principles of Agreement",
the concession and the Exploration and Production Sharing
Agreements mentioned in footnote 1to page 16of the Libyan Counter-

Mernorial.
17. The Libyan Counter-Memorial refers in paragraph 1.22 to evid-
ence which is said to rebut the statement made in the Maltese
Memorial, paragraph 79, that "no activities were carried out by
[Libya's concessionaires] north of the equidiçtance line". The Libyan
Counter-Mernorial says':
"The reply, if any, from Exxon is not annexed to the Maltese
Memorial and accordingly the suggestion in paragraph 79 that the

absence of activities north of the equidistance lineisconfirmed by
the replies received from the Libyan concessionaires' is not sup
ported by any evidence produced by Malta and is contradicted by
implication by the reply frorn Total of 31 July 1975".
Exxon's reply is annexed to this Reply2 and does not bear out the
Libyan contention. The material part says:

"However, Esso advises that no seismic operations had been
conducted within the area claimed by Malta, nor has Esso Libya
conducted any drilling operations within such area".

lndeed a letter3addressed by Esso Standard Libya Inc. to the National
Oil Corporation of Libya on 29 September 1974,and which in effectis
an agreement supplementary to the Exploration and Production
Sharing Agreement of 29 September 1974, above referred to, it is
expressly agreed between Esso Standard and the National Oil
Corporation that "untii such time as there has been a demarcation of
the offshore area subject to the jurisdiction of the Libyan Arab
Republic from the offshore area subject to the juridiction of Malta.. .
Second Party [Esso Standard] will not be obliged to commence
PetroIeum Operations ...in wiiters north of latitud34"10'00" North".
That latitude is to the south of the point, on the equidistance line
between Malta and Libya, which is nearest to Libya.

'At p. 18,endofpara. 1.22.
Annex2.
Reproducedas Annex46 ofthe Libyan Memorial.140 CONTINENTALSHELF 1131

18. It is not so inuch the factsrelating to the "no-drilling understand-
ing" which merit clarification at this juncture as the manner in which
Libya now seeks to present those facts. Paragraphs 1.231.27 of the
Libyan Counter-Mernorial contain no less than three significant distor-
tions of fact:
(i) Libyaquotes in paragraph 1.23one sentence from paragraph 6 of
the Secretary-General's Report, narnely:

"Malta has confirmed that it had accepted the implicit under-
standing, when the Agreement was signed in 1976, that it would
not begin drilling operations until theCourt had reached a decision
and an agreement on delimitation had been concluded in accord-
ance with article III of the Agreement."

Libya did no1quote the next sentence which would have presented a
more balanced picture of the situation.
"Malta considered that since the Libyan Arab Jamahiriya had
failed ro ratfi the Agreement [ihe Special Agreement in thi sase],it

was legally eniitled to commencedrilling operations".'
The fact that Libya States that "it does not accept unilateral re-
spnsibility for the non-ratification of the 1976Agreement"does not, as
a matter of objective analysis,relieveit of that responsibility.
(ii) At the end of paragraph 1.26, when referring to the account in
Matta's Memorial of the meeting between the Prime Minister of Malta

and the Prime Minister of Libya on 23 April 1980,the Libyan Counter-
Memorial fails to mention the last sentence of that account which put
developments in an entirely different light:
"At the end of the meeting the Prime Minister of Libya said that
the 1976Agreement would be ratified and that the two sides would
go to the Court in June (1980)".2

(iii) Yet, again, in paragraph 1.27Libya bluntly asserts that "the no-
drilling understanding had been breached by Malta", without appear-
ing to appreciate that the basic conditions underlying the understand-
ing had not been satisfied by Libya. In other words, Libya had
persistentlyfailed to act promptly, or indeed at al], in taking the steps
necessary to secure the approval of the submission of the present case
to the Court. In the face of such extended delay in placing the case
before this Court, and in the absence of any indication of movement by

Libya, Malta could not be expected indefinitelyto forego exploration in
the area of continental shelf to which in its view it was entitled.

-
For the full teseeLibyan Memorial, Annex 7E2.mphasiçsupplied.
MalteseMemoriat,p. 29, par100.Foran accountof the meetingof 23 April1980.
seeAnnex 3 of this Reply. CHAPTER II

ECONOMIC CONSIDERATIONS

19. Chapter 3 of the Libyan Counter-Mernorial is devoted to a
consideration of certain economic and other considerations introduced
by Malta.

20. Malta maintains its position that any delimitation in accordance
with equitable principles in order to lead to an equitable result rnust
take account of economic factors.
21. Malta also maintains its submission that the reference in para-
graph 107ofthe Court's 1982 Judgment in the LibyalTunisiaContinental
Shelfcase does not exclude recourse to econornic considerations. The
Court was not absolute in steting that the econornic considerations
mentioned in the case could not be taken into account. The Court said
"they are uirruallyextraneous factors". This must necessarily mean that
they are not entirely, ora priori, extraneous factors: only that in that
particular case, the particular considerations were thought to be

extraneous. Moreover, the Court acknowledged the possibility that
"the presence of oil-wells in an area to be delirnited.. . may,
depending on the tacts, be an elernent to be taken into account in
the process of weighing al1relevant factors to achieve an equitable
result"'

In any event, these passages rnust be read within the framework of
the Court's more general and compeiling observation in paragraph 71
ofthat Judgment:
"Equity as a legal concept is a direct emanation ofthe idea of
justice. The Court whose task is by definition to administer justice
is bound to apply it".

It would be a strange view of justice which, in relation to the de-
termination of the boundaries of wealth (for that is what the de-
termination of any boundary affecting resources involves), were to Say
that economic considerations have no bearing on the matter.
22. Paragraph 3.03of the Libyan Counter-Memorial takes issue with
Malta regarding Malta's argument in paragraphs 224 and 225 of its
Mernorial on ilslackof land-based energy resources.In suggestingthat

'I.C.J. Reporr1982pp. 77-78, para. 107.142 CONTINENTAL SHELF [151

it is by no rneans certain that Malta will be permanently deprived of
petroleum resources, that Libya's resource of oil is a diminishing asset
and that Malta has other "natural" resources in the shape of a large

tourist trade and rewarding ship repair work, Libya seeks to direct
attention away from the one really important fact in this case: Libya
has now, and for the last two decades has had, accessto huge quantities
of crude oil capable of generating for the people of Libya sufficient
capital to satisfy al1 reasonable needs in terms of investment for the
future. In comparison with al1 this, Malta has no truly natural re-
sources. Though its weather rnay remain constant, the extent of its
tourist trade depends entirely on world economic conditions. In this
respect Malta does not enjoy the protection which Libya's largeliquid
capital resources afford that country. And the same is no less true of
ship repair work - an industry which is directly and imrnediately
affected by fluctuations in the world economy reflected in greater or
less use of shipping. The fact that Libya rnay no[be able io look
forward indefinitely to an undiminished flow of oil from its on-shore
works, in addition to its off-shoreentitlement in areas unaflected by the
present case, does not constitute a circumstance which supports Libya
in its viewthat the area available to Malta for prospective development
should be hugely reduced.

23. Apart trom the disagreement between the Parties as to the
relevance of economic considerations, there appears to be some differ-
ence between them as to the appropriate factors to weigh in assessing
their respective equities in the situation.
24. Libya does not deny that it has more oil than Malta. lndeed this
isindisputable. Nonetheless, itisappropriateto recall what this implies.
In April 1982 as authoritative a source as the Economic Report on
Libya published by the National Westminster Bank stated not only
that Libya is the third largest oil exporter in OPEC but also that it has
"proven reserves sufficientto last at least40 years at prevailing rates of
extraction". Moreover, even more recently, on 26 March 1984,
Peiroleum Intelligence Weekly wrote:

"Development of Libya's first offshore oil field - largest to date
in the Mediterranean - could add nearly 10% to the country's
production capacity in one sweep."

There is, therefore, every prospect of Libya being able to maintain a
massive inçorne from the sale of oil for virtually half a century at least,
wirh quite reasonable prospects of being able to goon even beyond rhat
date.
25. Unable, therefore, convincingly to deny itç evidently and dis-
proportionately greater wealth, Libya seeks to eliminate the disparity
between itself and Malta by the observation that "neither State can be
classified as poor".'-That suggestion quite distorts the discussion. The
issue is not "are both rich or poor?" but "what is the comparative

Libyan ter-~ernorial, p. 59,para.3.06.[161 REPLY OF MALTA 143

wealth of one as against the other?". Of course, if Malta were rruly a
country of rneans, the comparison with Libya, even if it showed that
Libya ismuch richer than Malta, would perhaps be lesssignificant than
in truth it is. But the real point is that Malta is no1a country of means,
and the assertion that "by any standards Malta is among the more
prosperous developing nations of the world" is quite beside the point.
Quite simply,the people of Malta work hard for their income. With no
natural resources to support them, they have no alternative but to use
their skills, in combination with their weather and geographical lo-
cation, to make a living. But, even so the discrepancy between the
capital resources of thetwo countries is irreconcilable.
26. Libya admits the disparity of wealth in terms of Gross Domestic
Product (GDP) perhead of population, though tucking away in a
footnote the fact that Libya had in 1981 an income per head of some
USS8450 ,s against US$3380 for Malta.' Libya's per capita income is
thus some two and a half tirnes as great as that of Matta. This
admission is immediately qualified, however, by Libya's observation

that this is a "crude rneasure" and is operative only at "the rnost
superficiallevel".This qualification is in part true, thoughiidoes not
operate in favour of Libya.
27. Malta agrees that considerations of per capita income do not
necessarily reflect a country's particular economic conditions or si-
tuation. Indeed, Malta's DevelopmentPlan 1981-85 - Guidelines for
Progi.essStates, at p. 93:
"By itself, however, growth in domestic product is not really a
fair and reliable yardstick of economic expansion or of social

progress. Taken in isolation, it does nor adequately reflect the
structure of domestic output or any changing trends in its com-
position and distribution or the social environment and insti-
tutional framework in which growth of national product has been
registered."
28. In Malta's case per capita considerations do not show the
weaknesses inherent in the island's economic structure and other
factors and limitations which directly influencethe local economy. In
particular, such considerations fail to reveal the extreme openness and

fragility of the Maltese economy resulting especially from the small size
of the country, the small population and the lack of natural resources
and raw materials. This means that Malta's efforts to develop its
economy and improve national living standards have to rely almost
exclusivelyon international trade.
29. This reliance on international trade for economic growth is
shown by the fact that a large proportion of local manufacturing
output has to be geared for export in view of the limited domesric base
and that al! semi-processed supplies required for further processing by
Maltese manufacturing industries also have to be secured from abroad.

' Ibid.page 59, Fooino2.144 CONTINENTAL SHELF [177

Moreover, capital goods as well as fuel requirements also have to be
procured completely from overseas sources. Furthermore, a strong

thrust is given to the Maltese economy by tourists and ship repair
work: both types of activity are of an international nature and thus
further contribute to the openness of the local economy.'
30. There can be no doubt that Malta is at a great economic
disadvantage vis-à-vis Libya on GDP per capita criteria even though
this yardstick leaves unmeasured a number of crucial items which
severely limit Malta's options and prospects for economic growth. In

the circumstances, putting Malta "among the most prosperous develop
ing nations of the world" - as the Libyan Counter-Mernoriai does - is a
facile conclusion which completely ignores the limitations referred to
above.
31. The Libyan Counter-Memorial also refers to the economic
structure of the two countries and draws the conclusion that Maltais

economic structure is more "mature" than Libya'sand that Malta has a
"diversified" range of goods and services. In this context it should be
pointed out that:

(a) The local manufacturing industry relies îairly heavily on textiles
and clothing which are traditionally low-skill activities and subject to
volatile international market demand conditions. Total production in
firms employing more than 10workers during 1982 stood at Lrn239.9
million: textiles iind clothing accounted for Lm73.2 million (30.5per
cent).
(b) Total employment in these establishments at the end of 1982

stood at 23,556 of which 8,887 (37.7 per cent) were engaged in the
production of textiles and clothing.
(c) The local tourist industry is heavily dominated by UK tourist
traffic.Out of 510,95 visitors during 1982n ,o lessthan 331,712(65per
cent) were UK arrivals.
(d) Domestic exports are heavily biased towards clothing items.
Total domestic exports during 1982 reached Lm150.1 million: of this

amount exports of clothing stood at Lm68.1 million (45.4 per cent).
32. On the other hand, the underlying strength and prospects of the

' The ïollowing table compiledfrom Government Statistics indicates clearly the
opennessof the Malteseeconomy and henceits vulnerabilitainternationaleconomic
events- apoint whichGDP percapita measurementsaito highlight.Inbracketçarethe
correspondingfigures foribya(for 1981,the tatestavailable)takenfrom Lloyd'sBank
EconomicReport 1983.
1982
(i)GDP al factorcost Lm417.8 million(USS30,3 29illion)
(ii) Exportsof goods and services 319.8million 16,562 million
(iii) Imports ofgoods and services 394.6 million 17,458 million
(iv) (ii)as a "/:,of (i) 76.5"/, 54.6%
(v)(iii) as aU/:o,f (i) 94.4"/, 57.6%t181 REPLY OF MALTA 145

Libyan economy compared to the "chronic" weaknesses of the Maltese
economy are demonstrated by the following observations:

(a) Largely by virtue of its oil resources and proven oil reserves,
Libya has enjoyed and is expected to continue to enjoy in the coming
years a favourable surplus in its external trade transactions. Maltahas
persistently suffered from a deficit in its visible trade transactions and
will continue to do so given the limitations referred to above.
(b) Again, given the peculiar characteristics of the econorny of the
two countries, development policy in both Malta and Libya attaches
considerable importance to the development of the productive sectors,
Whereas Libya can continueto allocateenormous outlays out of its
substantial oil revenues towards the development of productive acri-
vities, funds at Malta's disposal to stimulate the development of the
productive sectors are severely limited. In this regard Libya finds itse1f
in an advantageous situation in the sense that its extensive natural

resources can provide raw materials around which its productive
sectors can be strucrured. Obviously Matta cannot do this; and al-
though econornic activity in the island is spread arnong various sectors,
these activities (with the exception of agriculture) derive, and will of
course continue to derive, their main thrust from international trade
rather than from domestic-oriented and locally-generated sources.

33. The Libyan Counter-Mernorial, in suggesting that Malta "ig-
nores the question of population", seeks to contrast Libya's highrate of
natural population increase ("one of the highest rates of natural
population increase in the world") with what itclaims is Malta's
declining growth.' But, to useLibya's own expression, Libya "has the
facts wrong". Malta's population trend has always shown an upward
trend.The natural increase in population was prevented from becoming
an actual increase, at an alarrning rate, of the number of Maltese living
in Malta, by an exodus through migration, unpreceàented in Maltese
history and probably unrivalled by any other country. Between 1950
and 1970 alone, there was a net flow of more than 100,000emigrants
from Malta to Australia, the United Kingdom, Canada, the United
States ol Arnerica and other countries. In more recent years the

population of Malta has again been registering a systematic increase.
~ot only have States ceased to encourage immigration, as was the case
before the 1974oil crisis; they arenow sufferingfrom a recession which
is causing many Maltese migrants to return to their native land. As can
be seen from the Table in the foolnote overleaf there has been an
increasefrom303,263in 1975 to 326,118in 1982.Contrary to Libya's
statement, there have been in each year after 1974 (with the exception

LibyanCountcr-MemoriaLp.60. p~ri3.10.146 CONTINENTAL SHELF 1191

of 1981) more immigrants returning than there have been emigrants
departing.'

34. In approaching the question of the relevance and role of fisheries
in Malta's case, it is important to keep the point in proportion. It is
merely one aspect, and not the dominant one, of the statement of
economic circurnstances relevant to the determination of the con-
tinental shelf bciundary. However, the Libyan Counter-Memorial ac-

cords to it virtually twice the discussion that it gives to the wider
economic considerations. The opening sentence of paragraph 3.12 of
the Libyan Counter-Mernorial should therefore be read with some
caution. There is no justification for the staternent there made that "it is
evident that the Maltese Mernorial accords fishing activity a major role
in the present case". Malta is as aware as Libya of the interrelationship
of fisheries, the continental shelf and the exclusive economic zone. It
doeç not seek to exaggerate the role of fisheries.

35. Eut that does not mean that Malta's reference to fishing activity
is "legally invalid", as is suggested in the Libyan Counter-Mernorial,
paragraph 3.14. Kannittari fishing, which involves the anchoring of a
cluster of patm leaves,is an activity of which an essential element is the
continuous contact of the Stone anchor with the seabed during the
whole fishing season and is thus directly related to the use of the
continental shelf resources.
36. The Libyan Counter-Memorial raises, in paragraph 3.65, a false
issue when itseeks to correct "an impression.. .that fishing is impor-

tant to the Maltese economy". That is not what Malta argued. Fishing
does not have to be an important part of the economy to be a
circumstance relevant to continental shelfdelimitation. It merely has to
be an activity related to continental shelf resources in which a signi-

' (Taken frornpublishedMalteseGovetnmentStatistics)
The following tableshows that the Mattesepopulationis on the increase andthat net
migrationilows have contributetoihis increase.

Ycar Maltescpopul- Natural Migration Total Population
ation atthe lncrease Balance* Change al endof
beginningof year
the year

*Di&rcncc betwcui the numberof migrantoutflowsand inflows. r201 REPLY OF MALTA 147

ficant nurnber of people are involved and which forms an identifiable
feature of Maltese life. Nothing said in the Libyan Counter-Mernorial
nins counter to ths.
On the point made specificaily regarding kannizzari fishing, the
Libyan Counter-Mernorial provides no evidence to support its blunt
contradiction of the statement in Malta's Memorial.'

37. The Libyan Counter-MernorialZ seeks to meet, as it puts it,
"head on" Malta's reference to its status as an island developing
country by noting that the 1982Law of the Sea Convention makes no
reference to this category of States. There is no reason why it should
have. It is true that the Preamble to the Convention refers to the
interests and needs of "developing countries, whether coastal or land-
locked" and does not reler to "island developing States". But why

should it do so? The expression "coastal or land-locked" is a compre-
hensive one and clearly includes "islands". There was, therefore, no
need for a specific reference of this.kind.
38. The inadequacy of this textual approach of the Libyan Counter-
Memorial is even more marked when one cornes to Article 83 of the
Convention which deals specificallywith continental shelf delimitation.
The clear implication of the Libyan argument is that one might have
expected to find some reference to "island developing countries" inthat
Article. But giventhe history of the emergence of that Article, the wide
range of conflicting positions which stood in the way of the adoption of

a detailed text and the eventual last-minute appearance of the present
generalized provision, it is hardly surprising [ha? il contains no re-
ference to the position of island developing States or indeed any other
particular kind of State.
39. The point which the Libyan Counter-Memarial studiously dis-
regards and, indeed, seeks to obscure is that the United Nations has
identified "island developing countries" as a group of States whose
special position should be acknowledged and for whose particular
needs some special provision should be made. Libya's response to this

reference isto attempt to diflerentiate Maltafrom other island develop-
ing States by saying thar the reasons why the United Nations or its
agencies concerned themselves with island developing States did not
apply to Malta3 The attempt is, however, defeated by the words of the
resolution which Libya itself quotes. Thus, while Libya sees in the
Preamble to UNCTAD Resolution 65(III)of 1972references to "diffic-
ulties in respect of transport and communications" which - so Libya
asserts- are problems that do not face Malta, Maltanotes in that same
Prearnbiethat these difficultiesare identified as being, "amongst others"
and are "limited to their geographical nature".

- 1See LibyanCounter-Mernorial. 64, para.3.20.
2p. 66, para.3.27.
See LibyanCounter-Mernorialp. 67, para.3.29.148 CONTINENTAL SHELF [21-22]

40. Nor is it correct, as is done in paragraph 3.33 of the Libyan
Counter-Mernorial, to liken Malta to Hong Kong and Singapore. By
no stretch of the imagination can the economy of those two entities be
cornparecl with that of Malta. Each is one of the world's leading
financial and commercial centres generating huge amounts of income
by virtue of the provision of international air transport and ofentrepot
traffic.
41. Lastly,itis to be noted that the Libyan Counter-Mernorial' mis-
States and, theceforeappears 10 misunderstandthe nature of Malta's
referenceto its position as an island developing country. Libya suggests
that Maita is "precluded on any rationai grounds from daiming the
protection of any notional concessions due from the international
community to the really poor developing countries of the world". But

the real point is that Malta is no1 asking for concessions from the
international community. It is asking the Court to bear in mind that
Malta is an island developing country and Libya is not; that Malta's
economic needs are vastly greater than Libya's; that this has been
recognized by the United Nations including Malta within the classifi-
cation of island developing countries. For the Court to disregard this
consideration would not be consistent with the controlling requirement
of the law in ibis sifuation, nameiy, thai equitable principles must be
applied to reach an equitable result. Malta isno1asking in this case for
sornething from the international community. Itis asking only that an
internationally and objectively determined difference between itself and
Libyashould beborne in mind indetermining whereit isequitable that the

resource baundary between the two States should run.

P.69,para.3.34. PART II

THE PRINCIPLESAND RULES
OF INTERNATIONALLAW
GOVERNTNGDELIMITATION

INTRODUCTION

42. Matta has set out its views on the principles andrules of
internationallaw applicableto the presentcase in Part III,Chapt1rs
andII,of its Counter-~emorial.' Maltadoes not proposeto reslateits
position on these questions and will limit iuelf to a number of
clarificationswhich appear to be necessaryin the liof theLibyan
Counter-Memorial. .

' MalteseCounter-Memorpp.45-83paras.71-176. CHAPTER III

THE NATURE OF THE DELIMITATION SOUGHT AND
THE SOURCES OF THE APPLICABLE LAW

1. THELAWAPPLICAB LOETHE DEL]M~TATION
OF THECONTINENTA SLELF

43. The delimitation in respect of which the Parties have sought the
assistance of the Court by the Special Agreement is that of their
comrnon continental shelf.lta has shown that the law applicable to
this delimitations customary international law as it has developed in
the practice of States, in the work of the Third United Nations
Conference on the Law of the Sea and in the cases. Of special
importance in this connection are the terms of Article 76(l) of the 1982

Law of the Sea Convention and the emergence in international law of
the concept of the exclusive economic zone.'
44. Libya does not deny that the provisions of Article 76 of the 1982
Convention declare rules of customary international law. It seeks,
however, to reduce their effectin two ways. First, it maintains that
provisions relate exclusively to the outer limit of the continental shelf
and are, therefore, irrelevant to its delimitation. In the second place,
Libya maintains that, even on the plane of entitlement and of the

limits of the shelf, the principle of distance expressed in this article
possesses no more than a "subsidiary character", while natural pro-
longation, in the physicalse of the term, "remains the primary basis
for the entitlement to continental shelfts".' Malta will revert later
to these two aspects of the Libyan argument. For the moment, ho-
wever, it is sufficient to observe that this thesis amounts to a pure and
simple denial of the important development of the concept of the
continental shelf, asflected in particular in the work of the Third

Conference on the Law of the Sea and inthe cases.

2. THERELEVANC OE THE EXCLUSIV EECONOMIZ CONE TO THE
DELIMITAT OO NHE CONTINENTA SHLELF

45. In the same perspective, Libya, though not denying the em-
ergence in international law of the concept of the exclusive economic

zone and ofthe principle of distance which is its inseparable corollary,

LibyanCounter-Mernorpp. 98-1paras4.46-4.52.1271 REPLYOF MALTA 151

tries again to minimize its significance in the present case. On scicral
occasions the Libyan Counter-Mernorial recalls the fact that the Court
is called upon to delimit the rights of the Parties in the seabed and its
subsoil to the exclusion of the superjacent water column:
". .fishing bears no relation to the continental shelf ...the Maltese

fishing activities ... rnight only have relevance to any Exclusive
Economic Zone of Malta. (To date, Malta has claimed no
Exclusive Economic Zone but has legislated for a 25-mile fishing
zone arouod the Maltese Islands ...)'
"The delimitation of the continental shelf in the present case
does not prejudge delimitation of the Exclusive Economic Zone (or
fishing zone)".'

". .. iis not the column of water - which is the primary concerIi of
the Exclusive Economic Zone - that is before the Court in rhis case
....3

From these remarks, Libya seeks to conclude that the criterion of
distance, the place of which in the concept of the exclusive economic
zone itdoes not den^,^ has no role to play in the present case. whichis
concerned solely with the continental shelf.
46. Malta agrees with Libya in regarding the present case as relating
exclusively to the delimitation of areas of the continental shelf apper-
taining to the two countries. Malta considers, however, that the evol-
ution of the concept OC the continental shelf and its absorption in the
multi-purpose jurisdiction of the exclusiveeconomic zone-(as defined in
Article 56 of the 1982 Convention), cannot be regarded as without
relevance or influence upon the rules governing the delimitation of the

continental shelf. In other words, Malta considers that the delimitation
of the continental shelf between Malta and Libya cannot be carried out
withour bearing in mind the'evolution of the concept of the continental
shelf and its relationship with that of the exclusive economic zone. In
this connection one may recall that the Court has referred to "... the
historic evolution of the concept of continental shelf,frorn its inception
in the Truman Proclamation .. ..through the Geneva Convention of
1958, through the North Seu Continental Shey cases and subsequent
jurisprudence, up IO the draft convention of the Third Law of the Sea
Conference, and its evolution in State pra~tice".~The Court has also
stated that it has "endorsed and developed those general principles and
rules which have thus been established",' and has emphasized that the
concept of natural prolongation, introduced by the Court itself in 1969

as part of the vocabularly of the international law of the sea, "wasand

'LibyanCounter-Mernorial. p62,para.3.14.
' IbiJ.p.62,footnote 1.
' Ibid. p71. para3.39.
~uniiia-~ibja ~onlinuniShrijCase.I.C.J.Reporrs.1982.p.92.para. 132
' Ihirl.152 CONTINENTAL SHELF [28]

remains a concept to be examined within the context of customary law
and State practice".' Amordingly, it seems inconceivable to Maita that

the delimitation of the continental shelfbetween Malta and Libya could
be carried out, as Libya apparently would like,in complete disregard of
the evolution of the continental shelf and of its relationship with the
exclusive economic zone.
47. Malta believes that one cannot overlook the fact that the
concept of the exclusive economic zone confers upon the coastal State
up to a distance of 200 miles from its coasts sovereign rights relating to
natural resources, both in the seabed and subsoil and in the superjacent
waters (as appears cleariy from the terms of Article 56 of the 1982
Convention). One may not, therefore disregard the fact that either or
both of the Parties may at any time declare an exclusiveeconomic zone.
Nor can one ignore the significant practice of States of adopting, more
and more often, "maritime" as opposed to merely "continental shelf"

boundaries. Libya recognizes the existence of this practice, and Malta
notes with satisfaction that Libya thus shows to be aware of the
evolution of customary international law and of the practice of States in
this matter. It regrets, however, that Libya nonetheless persists in
proposing to the Court a delimitation which takes no account of this
development.

'Ibid. p46,para.43.
LibyanCounter-Mernorial.p. 108para.5.21. CHAPTER IV

ENTITLEMENT AND DELIMITATION

48. Libya forcefully restates in its Counter-Memorial "the elemen-
tary distinction between continental shelf entitlement, on the one hand,
and continental shelf delimitation between conflicting claims to the
same continental shelf, on the other hand"' - a distinction to which it
had already claimed to attach great importance in its Mernorial.'
Malta has already said in its Counter-Memorial that it "sees no

objection to the legal distinction" between these two concept^.^
However the fact that the two concepts are distinct in no way means
that they have no juridical relaiionship, nor does it mean that entitle-
ment can have no impact upon delimitation. It is on this very point - of
great importance in the search for the law applicable to the delimitation
- that the views of the Parties diverge.

49. Libya's position on the question of the relationship between
entitlement and delimitation is confused and contradictory.
50. The legal basis of title, as defined in Article 76, i.e. the distance
principle, is relevant, so we are told. in relation to "outer limits" but has
no bearinqin the quite different sphere of delimitation:

"The 200-mile distance from the Coast determines only the
outward limit up to which a coastat State may claim jurisdiction
over the maritime areas before its coasts but does no\ provide
criteria for the delimitation of these jurisdictionai zones vis-à-vis
other Statesw4.

According to Libya, there is an impenetrable barrier between, on the
one hand, the entitlement to continental shelf, even though such
entitlement is basednot on "physical tacts" but on distance from coasts,

'LibyanCounier-Mernorialp, p. 80-81,ara.4.10cf.p. 81.para.4.12: p. 97. para.
4.43;p.98,para.4.46p. 101para.4.52.
Libya n ernoria, .81paras6.01-6.02.
' MalteseCounter-Mernorial.p.54-56,paras.96100.
" LibyanCounrer-Mernorialp,.101,para.4.52;cfp. 80,para.4.10p.81, para.4.12.
Also inthe samesenseseeLibyan Mernorialp. 82paras6.04 and6.06;pp.89-90 ,ara.
6.22.154 CONTTNENTAL SHELF [30]

and, on the other, delimitation between neighbouring States. This leads
Libya to the following sweeping affirmation :

"... there is no so-called 'distance principle' in international law
that would apply to the delirnitation in the present case ..."'

51. This also leads Libya, each time that Malta refers to the distance
criterion and to Article 76 for the purpose of drawing therefrom
consequences relevant to the delimitation of the continental shelf, to
accuse Malta of confusing matters which should be kept ~e~arate.~But
one is tempted to ask, if Libya were truly convinced that the notion of
the continental shelf,as set out in Article 76,has no bearing whatsoever
on delirnitation but only on the seaward extent to which a State is
entitled to continental shelf rights, why does Libya take so much
trouble to attempt to establish that the distance criterion has - even for

entitlement - a subsidiary character and that natural prolongation in
the physical sense of the term remains - even fm entitlement - the
prirnary and fundamental base'?3Malta will revert to this point when
it examines more fully the true legal basis for entitlement.
52. On the other hand, when it is a rnatter of natural prolongation in
the physical sense of the term and of what Libya calls the "physical
fa~tors",~ a close link is asserted in the Libyan pleadings between
entitlement and delimitation: distance is removed to an orbit away from
entitlement and the outer limit, while natural prolongation - in the

physical sense of the term - is accorded a place both in entitlement and
in delimitation:
". ..each Party must as a fîrst step establish the basis of its daim
for legal entitlement before turning to the operation ofdelimitation.

The physical factors that constitute the respective natural pro-
longations of the Parties - and hence their legal entitlement -
logically come first in the discussion of relevant circum~tances".~
"These physical facts ... relate both to the legal entitlement of
the Parties 1.0 areas of the continental shelf lying between the
Parties and to the delirnitation of such areas between them.6

53. The link between entitlement and delimitation is especially
suong, so Libya maintains, when "there are basic discontinuities in
the seabed and subsoil which arrest the natural prolongation - and

hen~ethe legal entitlement - of a particular State or States"' and when
one is :hus confronted by two States situate on different continental
shelves. In such a situation, so it is said, the physical facts "bear directly

' Libyan Counter-Mernorialp. 102,Tn.3.
Ibid.,p98,para.4.46.
Ibid.,pp. 98-99, paras.4.47-4.48;cf. Libyan Mernorp.l89, paras. 6.20-6.21.
Libyan Counter-Mernorial, p. 23, para. 2.04.
Ibid ..23,para.2.05.
Ibid., p.23,par2.05.. [3Jl REPLY OF MALTA 155

on the question ofwhich areas do, in fact, lie between the Parties"" and
"legalentitlement and delimitation go hand in hand".2"Such isthe case"
it is said "in the present delimitation between Libya and MaltaV,j and
it is thus the so-called Rift Zone and the line of the escarpments

which, according to Libya, mark at the same tirne the seaward entitle-
ment of each of the two States and the delimitation between thern:
"the same evidence which determines title will demonstrate not

only the area of entitlement. but also the limits of the natural
prolongation wit4 sufficient precision to provide a basis for de-
limitation ..."
54. lt is difficult to undersiand why entitlement and delimitation

shoutd be totally separated when entitlement rests on a given distance
from coasts and may "go hand in hand" when entitlement isdependent
upon natural physical prolongation. This mystery still remains
unresolved.

55. The truth is that enlitlement and delimitaiion - even though

distinct concepts - always go hand in hand. For this there are two
reasons.

(a) Narurul Prolo~lyurioti uttrlrh~.DisrurzcrCi-ireriuir

56. The first is that it is totally inconceivable that the delimitation of
the continental sheli between two States should be achieved in thesame

manner whatever may be the legal basis of title to the continental shelf.
Delimitation in accordance with the principles and rules of inter-
national law cannot be thesame. regardless of whether the legal basis of
the title of the coasial State lies in the physical lacts. or rests on the
principte of distance from the coasts. When the Court stated in 1969
that "delimitation is to be ekted . ..in such a way as to leaveas much
as possible to each Party al1 those parts of the continental shelf that
constitute a natural prolongation of its land territory into and under

the ~ea",~this was because the Court had previously affirmedthat the
legal basis of a State's continental shelf rights rested on the "natural
prolongation of its land territory into and under the ~ea".~Again, when
the Court in 1982 stated that, within the framework of the new
conception of the continental shelf,as expressed in Article 76,"it is only
the legal basis of the title to continental shelf rights - the mere distance
from the Coast - which can be taken into account as possibly having

--
Ihid.p. 56,para.2.84.
' Lihyan Mernorial.p.83, para. 6.W.
' LibyanCounier-Mernorial. p. 23, para. 2.05.
LibyanMernoria l.91,para.6.25.
I~C.J.Rcporrs,1969.p.53. para. 101.
' Ihill.. 22.para. 18 and p. 31. para. 43.156 CO~NENTAL SHELF [321

consequences for the claims of the Parties", it was only because the
Court had just observed that distance from the coasts now sufficesin
certain circumstances to establish the title of the coastal State.' Thus,
according to the Court, the evolution of entitlement to continental shelf
rights had direct and immediate consequences for delirnitation. The
Court stated the existence of this link in the clearest possible way when
it said that the law applicable to the delimitation of the continental
shelf "must be derived from the co'ncept of the continental shelf, as
understood in international I~w".~If "the concept of the continental
shelf, as understood in international law" has evolved from natural

physical prolongation towards a given distance from the coasts, then
there cannot be the least doubt that the law applicable to delimitation
must find a place today for the criterion of distance from the coasts, just
as it had previously found a place for the physical facts of natural
prolongation.

(b) The Mrrhoil 01 Delimiiaiion Must Be Rooted in the Legal Basis oj
Title.

57. There is a second reason why entitlement and delimitation
always go hand in hand. In order to conform to the requirements of
international law, the delirnitation of the continental shelf must lead to
an equitable result. On this point both Parties are in agreement.
However, thi ss not the only requirernent. Not every method capable of
leading to an eqiiitable delimitation is, simply by virtue of this con-
clusion, legally appropriate. It is also necessary that the method
selected should be rooted in the Iegal basis of title to continental shelf
rights- or in other words that it should be "derived fromthe concept of

the continental shelf, as understood in international law". Thus the
Anglo-French Court of Arbitration said that it did not possess "carte
blanche to ernp1oyany method it chooses in order to effectan equitable
delirnitation of the continental ~helf",~and declined to use a method
which, even if it might have led to an equitable resutt, "did not appear
to the Court to be one that is compatible with the legal régimeof the
continental ~helf".~

58. It is in the perspective of this relationship between entitlement
and delirnitation that one must view Malta's statement in its Counter-

I.C.JReports1982,p. 48, para.48,
Ibid.p. 43.para36.
Anylc-French Coniincnrul Shr!l'ArbirDecision or30 iune. 1977,par245.
Ibid.para.246.i331 REPLY OF MALTA 157

Mernorial that the process of delimitation involves IWO steps: first. as
starting point, the taking into consideration of a line dictated by a
method "derived from the concept of the continental shelf, as under-
stood in international law" (to use an expression of the Court) and
"compatible with the legal régimeof the continental shelf" (to use the
language of the Anglo-French Court of Arbitration); and second,

testing the equity of theresult and, ifneed be,adjusttng the line in order
to reach an equitable result.' Libya, itseems,takes a position similar to
that of Malta as regards the fiinetion of relevant circumstances in the
process of delimitation.' As has been noted, Libya accepts the link
between entitlernent and delimitation so long as the legal basis of title
may be seen as resting in natural prolongation, but disputes the
existence of any such link as soon as it involves the principle of
distance.

59. Malta does not consider it necessary to restate its views on the
delimitation process, and respectfully requests the Court to refer on
this subject to the relevant passages in its Counter-Mern~rial.~ The
observations which follow will thus be limited to the two aspects of the
delirnitation processon which the Parties are the most sharply divided:

the legal basis of title to continental shelf rights from which the
delirnitation method must "be derived" and the place of equidistance in
the delimitation of the continental shelf.

MalteseCounter-Mernorialpp.57-58, paraslos1 17:pp. 74-83paras.152-176.
LibyanCounter-Mcmonal,p. 117,para.5.48.
' MalteseCountcr-Mernorialp,p. 57-61. pa103-117. CHAPTER V

LEGAL BASIS OF TITLE :
THE CONCEPT OF NATURAL PROLONGATION

60. The Libyan Counter-Memorial repeats the argument already

developed in its Memorial: the legal basjs of title to continental shelf
rights, it explains again, rests in natural prolongation in the physical
sense of the term; and, since in this case there are two physicallydistinct
continental shelves, the delimitation must follow the line of the sepa-
ration of these two shelves.'
61. Upon closer examination the Libyan argument now seems to
have undergone some change. When Libya spoke in its Memorial of
natural prolongation "in its traditional character as a physical concept"

it appeared to he referring essentially to the geomorphological and
geological aspects of the seabed and its subsoil; and it was in this
connection that it emphasized the so-called Rift Zone and the
Escarpments-Farilt Zone, which it dexribed as major geological and
geomorphological features.' It is true that this geological and geomor-
phological view of natural prolongation reappears in the Counter-
Memorial, where it is invoked, as it was in the Memorial, in support of
the Libyan thesis of a delimitation "within the Rift Zone" and terminat-
ing east of the Escarpments-Fault Zone.3 The Counter-Memorial,

however, - and this is the new element - adds to the geological and
geomorphological features of the naturat prolongation the feature of
geography and, more especially,that of the configuration of the coasts.
Of course, geographical factors were not entirely absent from the
Mernorial, but they were presented rather as some amongst a number
of other relevant circurn~tances.~In the Counter-Memorial, geography
is in fact integrated into the very concept of natural prolongation,
which is henceforth to be composed of the three elements of geography,

geomorphology and geology, brought together under the generic des-
cription of "physical factsne5The geological and geornorphological
components, on the one hand, and the geographical component, on the

' LibyanCounrer-Mernorialp. . 23, para.2.05;pp. 4%56, paras. 2.70-2.84.
8.14;p. 133, paras.8.17 and 8.18.ara.6.28.p.127,para.8.01p.132,paras.8.13and
LibyanCounter--Memonal, pp.42-56. paras.2.52-2.84.
Seecg.,Libyan Memorialp, . 104,para. 6p.135,para.9.03.
' LibyanCounterMemorial,pp. 23,para.2.05andin. 2. [351 REPLY OF MALTA 159

other, although combined in the idea of the "physical facts" of natural
prolongation, perform different functions. The first two support the
argument of the "Rift Zone" and of the Escarpments-Faull Zone; the
third is used to counter equidistance and support the argument of
proportionality.
62. Beforetxamining these two aspects of the Libyan argument more
closely, it is to be observed that the different components of the riew
concept of natural prolongation as advanced by Libya do not ne-
cessarily agree with, and indeed may contradict, one another. This was
already true or geology and geomorphology. In the Tunisiu/Lihj,ucase,

forexample, the two Parties boih relied on natural prolongation in the
scientificsense of the expression. but one referred to geomorphology
and the other to geology, and the results which each reached were by
no means the same. The same case also showed that. even as a
geologica)concept, natural prolongation rnight refer to diflerent aspects
of geology. There is therefore oll the more reason for asserting that
there is no necessary or inherent correlation between geographical
considerations on the one hand and geological or geomorphologjcal
considerations on the other. Suppose for the sake of argument thai title
depends on natural prolongation, as revealed by geology or geomor-
phology, and that the delimitation must reflectanymajordiscontinui~y

in the geology or geornorphology of the seabed. One still cannot see
why coastal geography should lead necessarily,and in every case, tu an
identical delimitation line. Indeed, in actual fact, the contrary is at least
equally likely to be the case. One may here recall the observarian
already made in the Maltese Counter-Mernorial that between propor-
tionality and natural prolongation in the geologicalor geomorphological
sense there exists no logicalor necessary relationship.'
63. However it may be, neither in its traditional geological and
geomorphological components nor inits new geogr;iphical version does
the concept of natural prolongation, as developed by Libya on the
basis of an enlarged theory of "physical facts", constitute - in con-

temporary international law - the entitlement to continental shelf
rights. It is in the 1qul concept of natural prolongation, centred on
distance from ihe coasts, that one can now find the legal basis of titlIO
continental shelf rights - and at the same time the point of departure
for the process of delimitaiion - and not in the strange collection of
"physical facts" advanced by Libya.

64. Malta does not consider it useful at this juncture to comment in
detail on the geological and geomorphological components of the
Libyan theory of natural prolongation. This has already been criticized

'
MalteseCounter-Mernorial.p.19. para39;pp. 10%105. paras. 231-2315.160 CONTINENTAL SHELF 1361

in the Maltese Counter-Memorial on the scientificplane,' as well as on
the legal plane,2 and Malta respectfully requests the Court to refer to
the appropriate passages. Malta will merely add a few brief comments.

(a) The Evoluiion of'thc Concept oj'Continental Shey'

65. Libya continues to see the continental shelf as an essentially
geological and gcomorphological phenomenon. It disregards the trend
away from the geological and geomorphological concept of natural
prolongation which has characterized the evolution of the theory of the
continental shelf. It develops its argument as if the legal concept of the
continental shelf had not changed at al1 since the stage - which had
already been left behind during the work of the International Law
Commission - when the continental shelf was still the "species of

piatform" mentioned in the Court's judgment of 1969 "which has
attracted the attention first of geographers and hydrographers and then
ofj~rists".~ Libya seems to disregard the evolution of the concept over
a period of 30 years which has increasingly led to the detachment of the
concept of the shelf itself- and, consequently, the delimitation of the
shelf - from purely geological and geomorphological considerations.
Even in the 1958Convention, as the Court has observed, there was a
"lack of identity between the legal concept of the continental shelf and

the physical phenomenon known to geographers by that r~ame".~Since
then this aspect of the evolution has been emphasized, and "the legal
concept, while it derived from the natural phenomenon, pursued its
own devel~pment".~ Thus, as the Court has also rernarked, the con-
tinental shelf

"... is an institution of international law which, while it remains
linked to a physical fact, is not to be identified with the pheno-
menon designated by the same terrn ... in other di~ciplines".~

In terms of this "widening of the concept for legal purposes",' it is
certainly not natural prolongation in the geological and geomor-
phological sense which constitutes the legal basis of title to continental
shelf rights:

". .. at very early stage in the development of the continental shelf
as a concept of law, it acquired a more extensive connotation, so as
eventually to embrace any seabed area possessing a particular
relationship with the coastline of a neighbouring State, whether or

MalteseCounter-Mernorial,pp. 20-32, paras.41-62.
Ibid.pp. 62-74paras. 11Cl5 1.
I.C.J. Reporr1969.p. 51, para. 95.
I.C.J. Reporrs1982,p.46,para.42.
'Ihitl.. p. parii41.
'Ihicl.[37] REPLY OF MALTA 161

not such area presented the specific characteristics which a geog-
rapher would recognize as those of what he would classify as
'continental shelf'".'

(b) Article 76 (1) ofthe 1982 Convention

66. ln a desperate effort to negate the efiect of the evidence, Libya
does nat hesitate to give to Article 76(1) of the 1982 Convention -
which reflects the outcome of this evolution - an interpretation which
deprives it of al1 sense. The provision, so the Counter-Mernorial
contends, has no more than a subsidiary character, and the principle
remains that of natural prolongation in its physical sense.'
67. The truth is quite otherwise. It was in response to the require-

ments of States with a narrow continental margin, and with a view to
rnaintaining equality between alt coastal States, that the Law of the Sea
Conference enlarged to 200 miles the continental shelf rights of al1
coastal States, regardless of the geomorphological and geological con-
figuration of the seabed lying uîT their coasts. Only those TewStates
whose continental margin stretches further than 200 miles would have
been adversely affected by this provision, since the 1958criterion gave
them rights to a depth of 200 metres, even though these might lie

further out than 200 miles. That is why it was decided to provide that
these States might continue to enjoy continental shelf rights even
beyond 200 mileson the basis of physical natural prolongation. But it is
not correct to Say,as Libya does, that Article 76 contains a "prirnary
basis for the entitlernent 10 continental shelf rights" - physical natural
prolongation - and a "subsidiary title to continental shelf rights" - a
distance of 200 mites. Article 76 sets out two rules of equal force: up to
200 miles from the coasts, distance is the basis for the legal title of the
State; beyond 200 miles, the coastal State has rights based on physical

natural prolongation, these rjghts themselvesbeing limited to a distance
not exceeding 350 nautical miles.
68. Again, contrary to what Libya appears to think,3 the Court has
not in any way contemplated thiit the title of a State based on distance
is a "subsidiary title": paragraphs 47 and 48 of the judgment in the
TunisialLibya case say nothing of the kind. What the Court said is that
paragraph I of Article 76 "consists of two parts, employing different
riter ria".^There is not the slightest trace of any hierarchy between the

two. Again what the Court said is that "the distance of 200 nautical
miles is in certain circumstances the basis of the title of a coastal State"'
- "in certain circumstances", that is to Say, in al1cases save that of a
broad-margin State. Again, whai the Court said is that "in so Car ...as

--1 I.C.J. Reports, 198p.45 para.41.

Libyan Counter-Mernorial.p. 99, par4.48.
I.C.J. Reporis, 1982.48,para.47.
Ibid.162 CONTINENTAL SHELF [Ml

the paragraph provides that in certain circumstances the distance from
the baseline, measured on the surface of the sea, is the basis for the title
of the coastal State, it departs from the principle that natural pro-
longation is the sole basis of the title".

(c) Case Law and Physical Features

69. Since it is not in the geology or the geomorphology of the seabed
or its subsoil that one can find the legal basis of title but in the
combination of coasts and distance, the geological and geomorphologi-
cal configurations cannot play any controlling role in the process of
delimitation.Just as the entitlement of a coastal State towards the open

sea is not affected by geological or geomorphological features, such a
trench or a depression lying lessthan 200 milesfrom ils coasts, so there
is no legal reason for attributing to snch features any role in de-
limitation between neighbouring States. That two States may agree
between themselves to delimit their continental shelf by reference to the
geological or geomorphological configuration of the seabed is no doubt
true; no rule of jrts cogens prohibits it. But examination of State practice

shows - as will presently be explained - that States hardly ever do this.
To reduce the function of the Court when charged with delimitation in
accordance with the law to identifying the "basic discontinuities in the
seabed and subsoil which arrest the natural prolongations of the
Parties - and hence their legal entitlement",' is inconceivable in the
present state of international law. It is necessary to recall that in 1977
the Anglo-French Arbitration Tribunal considered that

". ..there does not seem to be any legal ground for discarding the
equidistance or any other method of delimiting the boundary in
favour sirnpl of such a feature as the Hurd DeepHurd Deep
Fault Zone". K

One should atso recall that in 1982the Court refused to delirnit the
boundary by a simple identification of an alleged interruption or
physical separation of the natural prolongations of the two Parties.'

On the contrary, the Court said that in certain circumstances - that is
to say beyond 200 miles -

' Libyan Counter-Memorial. p. 23. para. 2.05.
* Anyl(*Frunch rlrbirruriCase, para 108.
See MalteseCnunter-Memoriat, pp. 67-68. paras.134-135. Libyü once again puts
forward in the prescntcase the argumentwhichitadvanced in theTunisiu/Libjacase:
"...the questionsofgeology and geography become ofdecisive importancesince.
once the natural prolongatjon of a State is determined, delimitation becomes a
simple matter of complying with the dictates of nature"(Pleadings, 1,p. 487,
para.89).
TheCourt expresslstated thailis "unableto accept [this] content(1.C.J.Rtjpoir.
1982,p.47. para. 441, [39-401 REPLYOF MALTA 163

". .it is only the legal basis of the title to continental shelf rights-
the mere distance from the Coast - which can be taken into account
as possibly having consequences for the clairns of the Parties".'

Itis true that Libya objects to this, saying that "the Court did no1have
recourse to any distance criterion in the delimitation between Tunisia
and Lib~a".~This is correct, but Libya does not appear to have noticed
the conclusion of the paragraph just quoted:

"80th Parties rely on the principle of natural prolongation: they
have not advanced any argument based on the 'trend' towards the
distance principle. The definition in Article 76, paragraph 1,there-

fore affords no criterion for delimitation in the present
iiow, after al1that, can Libya Say that "there is no so-called 'distance
principle' in international la^".^ Any such assertion runs counter to all

the evidence.

(d) Phjsical Feutures und Srute Pracrice

70. It is not only the case law that Libya disregards. It also leaves
State practiçe out of consideration, as Malta has shown in its Counter-
~ernorial.~ It is sufficient to glance through the AiInex oj'Delimitation

Agreements produced by Libya to see that, apart from the Timor
T~ench,~geological and geomorphological configurations do no1 ap-
pear to have been treated by States as controlling the delirnitation of
their continental shelf boundaries. The agreement between France and
Spain disregards the Cap Bretoii ~rench.? The agreement between the
United States and Mexico adopts a simplifieciequidistance line without

referenceto the Sigsbee Dee~.~The agreement between Cuba and Haiti
establishes an equidistance line which disregards the Cayman T~ench.~
The India-Thailand delimitation takes no account of the Andaman
Basin.'' The agreements between the Dominican Republic and
Colombia and the Dominican Republic and Venezuela take no account
of the Aruba Gap. The delirnitation between the United States and
Venezuela does not give any weight to the Venezuela Basin." The

delimitation between France and Venezuela uses a line of longitude
which is unconnected with the geornorphology of the region.12

*Libyan Counter-Mernorial.p.alm, para. 4.51.
'Emphasissupplied.
' Libyan Counter-Mernorial,p. 102,In3.
MalteseCounter-Mernorial, pp. 70-74, paras.144-150.
Libyan Counter-Mernorial. Annex of Delimitation Agreements, Annex24.
Ibid.Annex 34.
"bid.. Annex 23.
' Ibid.Annex 52;Seealso Maltese Memorial. Annex 55.
Ioihid.Annex 59;Seealso Maltese Memorial, Annex 53.
''Ibid.Annex 56;Seealso Mültese Memorial, Annex52.
Ibid.Annex 67. See for deraAntiex4 of rhiReply.164 CONTINENTALSHELF [411

71. As against these cases Libya notes that the lineestablished by the
agreement between Cuba and Mexico "ako coincides generally with the
Yucatan Channel, a deep geomorphological depression".' Yet a glance
at the map is sufficientto show how wrong this interpretation is- the
bolder because the agreemenrStates expressly thot ithas beendrawn up

on rhe busis oJ equidistance! Annex 4 to this Reply shows that the
agreed line is infact a median line ignoring completely the physical
features of the area. As for the North Sea to which Malta has already
relerred,2 both the Maltese and the Libyan maps show the extent to
which the nurnerous delimitation agreements in this area are inde-
pendent of the configuration of the ~eabed.~

(a) Causrs and Nor LandmtrssGenerure Entitlement

72. The Libyan Counter-Mernorial does not stop at tying entitle-
ment - and thus delimitation - to geology and geomorphology. As has
already been pointed out, itadds a new dimension to the concept of
- and itsees in the coasts both "the basis of
prolongation: geography
continentat shelfentitle~nent"~and an element of "major importance.. .
in any delimitation of the continental she~f".~
73. Malta, of course, would welcome this acceptance by Libya of
"the importance of the coasts", "the major importance ofthe coasts of
the Parties", "the coastal basis of continental shelf entitlement",b if,on
the one hand, this acçeptance is accornpanied by a correlative abandon-
ment of the geological and geomorphological approach, and if, on the

other, the word "coast" were not given a very special meaning in
Libya's vocabulary. The Libyan Counter-Mernorial certainly speaks of
"coasts" - and it is right to do so. But itsees this word as synonymous
either with the "landmass behind the coasts" or with "coastal lengths".
For the "geographical configuration of the coastlines" which the Court
sought to examine closely,' Libya thus substitutes two other concepts:
the first is that of the "lândmass behind the coasts", which has only a
verbal relationship with the idea of coasts; and the second is that of
"coastal lengths", which favours only one particular aspect of coastal

configuration and which serves entirely to deprive basepoints of their
proper role. The Counter-Mernorial does not deal in any way with the
relationship between coasts and distance.

' --
MülteçeCounter-Mernorial.lp.73. para. 148.nnex23.
' SeeReducedMap No. 1 ai page72 of the MalteseCounter-Mernorial and Annex 12
of the Annexof Delimitation Agreementsof the Libyan Counter-Mernorial. For easeof
referencehe map is reproducedin ihiReply as Map No. Iat page40.
Libyan Counter- Memorial, p. 84, para. 4.18.
'Ihid..p.32,para. 2.29.
Ihid., pp. 338 and 83 respectively.
'I.C.J.Rrpoir~ 1969.p.51. para. 96. 1421 REPLY OF MALTA 165

74. Before examining Libya's attempt to change the nature of the
concept of "coasts", it is necessary to observe that the theme of coastal
geography lies on an entirely dinèrent plane from that of the "Rift
Zone" and of the EscarpmcntsFault Zone. It is not a matter, this time,
ofjustifying the quasi-enclavement of Matta within the alleged natural
geological and geomorphological prolongations, but of justifying a
non-equidistance delimitation based upon a criterion of proportion-

island group of Malta with the importance of the immense Libyane small

continental landrnaa. By dint of repeating that Malta is small and
Libya large, Libya hopes to persuade the Court to draw broad legal
consequences from this staternent of the obvious: if Malta is so srnall
and Libya so large, is it not inequitable to adopt an equidistance
delimitation which will give equal weight to thq two countries, and
which will divide the continental shelf between them accordingly?
Would itnot be more equitable to abandon this approach in favour of
one based upon proportionality?
75. Malta would not for a moment think of cornparing itself with
Libya by reference either to the area of its territoryor the length of its

coasts. Certainly Malta is a small island State while Libya is a huge
continental one. But what is the relevance of this on the legal plane?
The law does not demand a just and equitable division which would,
according to the subjective opinion of the judges about distributive
justice, attribute to each State a part of the continental shelf pro-
portional or, on the contrary, iiiinverse proportion to its size or the
length of its coasts, or its economic power. The question 10 be decided
is what are, according to international law, the consequences to be
drawn from the reference to size which Libya repeats untiringly from
the first to the last page of its Pleadings. In other words, what is the
legal impact of the diiTerencesin area and coastal length of insular

Malta and continental Libya on the delimitation of their respective
areas of continenta1 shelf? Malta will answer this in more detail
prcsently.
76. The first Libyan modification that calls for comment concerns
the concept of "coasts": "coasts" becomes "the landmass behind the
coasts". This assimilation had already appeared in the Libyan
Mtmorial, and Malta has already taken the opportunity of criticizing
it in its Counter-Memorial.' In the Libyan Counter-Mernorial this
assimilation is given a quite unexpected prominence and the theme
constantly reappears as a ~eitmotiv.~Two quotations willsufficeby way
of illustration:

"... the extent of the land territory behind the coasi must be
regarded as linked to the factor of the natural prolongation ...the
land territory behind Libya's extensive coast is immense, whereas

' Maltese Counter-Mernorial, p.0-51,paras. 87-88.
2.50;p. 83, para.4.1684,paras.4.18 and4.19;pp. 85-86, paras.4.21-p.87.para.
4.25; p. 90, para.4.30.166 CONTINENTAL SHELF Lw

both the coast and land territory of Malta are very small. Surely,
the intensity of the natural prolongationmust be greater - the
prolongation, morenatural- from the Libyan coast in arriving at a
lineofdelimitation".'
"It is the landmass behind the coast which ... provides the

factual basis and legal justification for a State's entitlement to
continental shelfrights over maritime areas before its coast ...".
77. The rendering of "coasts" by "the landrnass behing the coasts"
rests on an evidently false basis. It is not the landmass of the State
which confers maritime rights upon it, but the fact that it possesses
coasis. Maritime rights flow not from the quality of being a State but

from that of being a constul State. It is the existence of a coastal façade
which generates maritime rights, and not the existence of a territorial
mass or hinterland behind this façade. A landlocked State of even
enormous area acquires no maritime rights simply from the fact that it
possessesa large landmass; and conversely a coastal State has the same
maritime rights regardless of whether its territory penetrates deeply into
the interior of the continent or is merely a narrow strip alongside the
sea. The Court said this clearly in 1969:

"... the land dominates the sea: it is consequently necessary to
examine closely the geographical configuration of the coastlines of
the countries whose continental shelves are to be deli~nited".~

One may thus see that it is not the size of the landmass that the Court
feels must be examined closely, but the "geographical configuration of
the coastlines". Certainly "the land dominates the sea"; but this is a
rnatter of "land territory", that is to say a political concept, and not of
the "iandmass" in its physical sense.It was of the "natural prolongation
of the land territory" that the Court spoke in 1969,4and not of the
"natural prolongation of the landmass". The Angl-French Court of
Arbitration confirmed this in a passage which has already been quoted:

"In international law ... the concept of the continental shelf is a
juridical concept which connotes the natural prolongation under
the sea not ofa continent or geographicallnnllmassbut of the land
territory of each State".'

Libyâ distorts the law in pretending that the source of continental shelf
rights of a State lies in its territorial mass and in presenting natural
prolongation as being not that of the territory of the State in the legal
and political sense of the terrn, but that of the land area in the
geographical sense of the word. No, it is not "the landmassbehind the

tIbid.,p. 41, par2.48. Emphasissupplied.
Ibid., p84, para4.19.
'I.C.J.Reoorrs1969.D.51..ara.96.
AngleFrench Coniinentol Shey Arbirrariopara. 191.Emphasissupplied1441 REPLY OF MALTA 167

coastline ... which provides the ... legal justification for a State's
entitlement to continental shelf rights ...",lbut, as the Court has said,
"the geographic correlation between coasr and subrnerged areas off the
coa~t".~
78. Since continental çhelf rights are derived not from the lundmoss

but from the cousis, the area of continental shelf rights belonging to a
coastal State has nothing to do with the area of its landmüss. It isthe
character of the coasts which determines the extent of the areas of
continental shelf belonging to each coastal State and that alone. There
is no correlation between the area of the coastal State and the area of
its continental shelf, or indeed, more generally, the area of al1 its
maritime jurisdictions. The two matters are quite independent of each

other and the ratio between the area of the State and that of its
continental sheli or of its economic zone may Varyconsiderably from
one situation to another. A srnall island located in the middle of an
ocean may generate areas of maritime jurisdiction which are consider-
able in cornparison with its area. Thus the Island of Nauru, with an
area of 21 square kilometres, gives rise to an exclusive economic zone
nearly ten thousand times larger than itse1f.j

(b) LandmussIrrelroantjor the Purposes ofD '~limiiatiori

79. This observation is true when the State concerned is able to
benefitfrom the whole of its entitlement. it is no lesstrue when the case
is one involving a delimitation between neighbouring States: in no case
has this delimitation ever involved identifyinga correlation bet\ireenthe

area of the landmass and that of the continental shelf. It may be
recalled in passing that the historical evolution of the territorial sea was
not marked by any proposal that its outer limit should depend either
on the length of the respective coasts of opposite States or on their
relative size. In cases of delimitation between opposite or adjacent
coasts, the practice of States does not appear to give weight to the size
of the landmass. The Soviet Union, for example, has made delimitation
agreements on the basis of equidistance with Fiotand, Poland and

Norway4 without the gigantic landmass of the Soviet Union having
been used to give the latter any advantage. Much the same is true for
the United States in relation to its agreements with Mexico and Cuba.5
A glance at the Annex of Delimiiation Agreements appended to the
Libyan Counter-Mernorial serves to show that there are many cases in
which the considerable disproportion in the size of the parties to the

1 LibyanCounter-Mcmorial. p. 84, para.4.19.
2 I.C.J.Report, 198p. 61,para.73.
' SeeLucchini andM. Voelcke1,LesEtorset la Mer,PaLa DocvmenrationFrancaise,
1978,p. 71.
' Libyan Counter-Mernorial. AnnexeNos. 9, 2and 4 respeciively.
' Ibid.AnnexesNos, 23 and 53.168 CONTINENTAL SHELF [451

agreement finds no reflection in the settlemeht.' One may also note that
the Federal Republic of Germany never invoked the greater size of its
land territory in itsclaims against Denmark and the Netherlands in the
North Seu ConrinenialShelf'Cases.
80. It may be added too that if one were to attach legal importance,
whether in the hasis of title or in the delimitation of the continental

shelf,to the area of the landmass, one would risk finding on a number
of occasions that there is a contradiction with another geographical
aspect of the situation to which Libya attaches great importance in its
conception of natural prolongation, namely, the length of the coastlines.
A State may have a large landmass but a short coastal façade; or, on
the contrary, a small landmass which stretches all the way along an
extended coastal front. Between these two factors, which Libya suggests
are linked2, there is no logical or necessary relationship. The Libyan

argument on this point is quite simply uninteltigible.
81. The Libyan argument regarding its landmass is affected by a
double error. The first lies in rnaintaining that it is the landmass which
constitutes "the legal justification for a State's entitlement to
continental shelf rights"; the second lies in the contention that there
exists a necessary correlation - in other words a necessary proportion -
between the area of a State's territory and the area of its continental
shelf. Libya tries to link the landmass to the coasts by speaking

systernatically of "the landmass behind the coasts"; but this does not
serve to provide a legal foundation for its argument. It is the re-
lationship between the submerged areas and the coasts which is the
legal basis for the rights of the coastal State and not the relationship
between the submerged areas and the territories lying landward of or
"behind" the coasts. Libya'scase is not improved by linking the area of
the landmass to the natural prolongation or by arguing that the greater
the landmass the more the natural prolongation is "intense" and

"natural". The idea clearly advanced in the Counter-Memorial that
Libya's natural prolongation would by reason of the greater size of its
land territory be more intense and "more naturalW3than that of Malta
is truly staggering. To borrow a Libyan expression, this is an "un-
fathomable l ta te ment".^
82. One last comment may be made regarding Libya's emphasis on

' See for exampIe the following Agreements:Iran-Qatar (Annex 21); Austraiia-
Indonesia (Annex 24); ahraiwIran (Annex25);Argentin*Uruguay (Annex32);Iran-
Oman (Annex 40)IndisIndonesia (Annex41);lndia-Maldives(Annex49);Netherlande
Venezuela(Annex 57);and AustralisPapua New Guinea (Annex60). Almost al1these
agreementshadalreadyben reproducedby Malte in Annexesto its Memorial,but for
ease of reierencethe numbers here giare those of the Libyan Annexof Delimitation
Agreements.
' See,e.g., LibyanCounter-Mernorial,.25, para.2.10;p41. para. 2.4p. 42, para.
2.50;p. 84.para.4.18.
' lbid., p. 41, para. 2.48.
Ibid., p. 26, In.7. REPLY OF MALTA 169
[461

the landmass behind the coasts. The Libyan proposition that minuscule
Malta is not entitled to as extended a continental shelf as immense
Libya is entirely fallacious. Quite apart from the obvious fact that even
an equidistance line would leave to Libya an area of continental shelf
very much larger than that of Malta, the question of the relative area of
the two States is entirely without legal pertinence.
83. After the unjustified assimilation of "coasts" with "the landmass
behind the coasts", there occurs a second assimitation, more subtle but
no less misleading, of "coasts" with "coastal lengths". The argument
runs that the coasts ofMalta are much shorter than those of Libya, and
therefore one should reptace the equidistance method with one based
on or coinciding with a delimitation that is proportional to the coastal
lengths of the two States. The question of proportionality will be
examined in greater detail later.At this point the Libyan argument will
be examined from a different angle.

(c) COUS~a Snd Disiancefi.om Coasts are the Relevant
Considerarions

84. It is, of course, true that coasts occupy a central place in
identifyingentitlement to, and delimitation of,the continental shelf.But
this proposition requires clarification in two respects. First, it is nec-
essary to take account of the configuration of the coasts as a whole and
not accord a special position tarnerelyone aspect of this configuration.
As will be seen the emphasis placed by Libya ofthe single aspect of the
length of the coast and the correlative tendency ro minimize the role of
basepoints which reflect the configuration of the coast are not
acceptable. Second, it is by reference to the sea areas which lie off the
coasts that the latter have any importance, so much so that it is in the
distance from the coasts that one finds the legal basis of title to the
offshore areas and thus the point of departure for delimitation. It isnot

the length of the coasts by theinselva, taken without reference to the
element of distance, that matters.
85. This last point appears with particular clarity in the observations
of the Court in the TunisialLibyajudgment. The Court said that the
continental shelf embraces "any seabed area possessing a particular
relationshipwirhthe coastline ..".'"The geographic correlationbetween
coast andsubrnergedareas off the coast is the coastal State's legal title".2
It is thus the spatial relationship between the coast and the offshore
areas which is the source of the rights of the coastal State, and not
merely coastal length in itself.The Court added:

"As has been explained in connection with the concepi of nalural
prolongation, the coast of the territory of the State is the decisive
factor for titleto submarine areas adjacent to it".'

I.C.JReporrs,1982,p.45,para.41.
Ibid., p. 61, para.73.Emphasissuppliai.
Ibid.170 CONTINENTAL SHELF [471

The explanation given "in connection with the concept of natural
prolongation" is precisely that - leaving aside broad-margin situations
(which are not relevant here) -

"...the distance from the baseline, measured on the surface of the
sea, is the b:isis for the title of the coastal Sta.[and] itis only
thelegal basis oftitle tcontinent sallfrights- the mere distance
from the coast - which can be taken into account as possibly
having consequences for the claims of the Parties". '

"Therefore", the Court added,
"the coast of each of the Parties ...constitutes the slarting line
from which one has to set out in order to ascertain how far the
submarine areas appertaining to each of them extend in a seaward
direction, as well as in relation to neighbouring States.. .".l

Here isa clear sratement that conrinenlal shelf rights, whether
extending without restraint into the open sea or limited by reference to
a neighbouring State, are controlled by the concept ofdistance from the
- - --.

86. Looking at the matter more closely, it will be observed that the
distance of which the Court speaks is not measured from the very coast
itselï but is rather a "distance from the baseline". Article 76(1) of the
1982Convention provides in the same way that the continental shelf of
a coastal State extends "to a distance of 200 nautical milesfrom the
baseliriesfrom which the breadth of the territorial sea is measured". A
comparable form of words appears in relation to the breadth d the
exclusiveeconomic zone in Article 57 of the same convention. There is
thus a striking identity between the points or lines from which the
territorial sea, the continental shelf and the economic zone are al1

measured. In other words, we have here three areas of maritime rights
which are defined by reference to the combination of coasts and
distance. The explanation of this similarity is simple:the basepoints and
baselines from whichthe territorial sea is measured - and likewise from
which the continental shelf and the economic zone are measured - are
not determined arbitrarily. They are used because, and to the extent
that, they represent the coasts. The rules governing their determination
have been the subject of extended customary and treaty consideration
with a view ta achieving exactly this representative quality.

(d) The Equalitj ofthe SeaivardProjecti ofCnoasts

87. But the combination of distance and coasts has another
important consequence: where a constant distance is used to define the
seaward extension of a coastal State, its maritime zone extends in every
direction within the prescribed distance. No one direction is IegaIly

1Ibid .,48,para.48.
Ibid ..,1,par&.4.1481 REPLY OF MALTA 17 1

more significant than any other. The maritime zone of a coastal State
within this framework is not to be thought of as a platform in front of
itsCoast, but as a broad belt of sea surrounding its territory in every
direction. This equality of seaward projection of the coasts occurs every
time that a maritime area is defined in terms of distance. This was the
case with the territorial sea whichthe"cannon-shot rule" led juriststo

consider [rom the 17thcentury onwards as "a belt of sea adjacent to the
land".' The same is true for the exclusiveeconomic zone. It was not so
for the continental shelfso long as the latter waçdefined by referenceto
depth or exploitability. Now, however, that the continental shelf has
come to be defined also by reference to distance from the coasts (at
least in the rnost common case and in any event in the Pelagian Sea),
the concept of equal radial projection applies also to it. In the case of a
continental State the idea of radial projection can be implemented only
from the coastal front, but itoperates in al1directions until it meets,

according to the situation, the radial projection starting from the
coastal front of another State. In the case of an island, which by
definition is " an area of land, surrounded by water" (Article 121of the
1982Convention), the radial projection extends in al1directions around
the island, and the idea of a "belt" - the word used by the Court in
relation to the territorial sea2 - assumesits fullmeaning.This is why
island States with a small area are capable of generating very large
areas of maritime jurisdiction.
88. The radial jurisdiction which characterizes entitlement to
maritime zones under the principle of the relationship between coasts

and sea areas ' is applied by the method of envelopes of arcs of circles
adopted io define the outer limit of these zones.
89. This method was first established, as was natural, for the ter-
ritorialsea. This was the method described by Whittmore BO~~S," by
Fritz Münch.' and by Gilbert GideL6 It was also the method put
forward by the United States delegation to the League of Nations
Conference on the Codification of International Law at The Hague in
1930.The Court described ii in 1951in the Judgment in the Fislrr~~ies
case. though stating that "it is not obligatory in Law".' The Cornmittee
of Experts consulted by the International Law Commission defined this

method as consisting in drawing
"... a line, every point of which is at a distance of T miles (the
breadth of the territorial sea) from the nearest point of the baseline.

' O'Connell.Tlie InieriiorionulLUH.i~j'ilirSeo1.Ediiedby J.A. Shearer.1982.p.
127
I.C.J. Reporrs1959,p. 128.
' Seepara. 85 above.
" Delimitaiionof theTerritoriaSeü.AnieiicunJouriiul oj'lnrri-iiorioiiolLm.. Vol. 24
(1930).p.541.
' Diu TechnichenFrageii drs Küstriiitieers. 1934.
Le droit Inrrriiurionolpublic rlr IVol.11111934).p. 503.
' 1,C.J.Reporrs1951,p.129.172 CONTlNENTAL SHELF 1491

II constitutes a continuous series of intersecting arcs of circle chain
with a radius of T milesfrom al1points on the baseline. The limit of
the territorial sea is formed by the most seaward arcs".'

The International Law Commission recornmended its adoptiom2 It
became the legally compulsory rnethod with the entry into force of
Article 6 ofthe 1958Convention on the Territorial Sea and Contiguous
Zone, the terms of which reappear in Article 4 of the 1982Convention
on the Law of the Sea:

"The outer limit of the territorial sea is the line every point of
which is at a distance frorn the nearest point of the baseline equal
to the breadth of the territorial sea".

90. Conceived by the technical experts in order to meet practical
needs, the method of envelopes of arcs of circles thus became the
appropriate legal rule for the territorial sea no1 later than 1958.
However, it is capable of wider application and rnay be extended to the
delimitation of ail areas of maritime jurisdiction, entitlement to which
rests on the spatial relationship between a maritime area and coasts,
especially the exclusive economic zone. The 1982Convention does not,

it is true, contain any provision establishing the outer limit of the
exclusive economic zone comparable to the one contained in Article 4
dealing with the limits of the territorial sea, but one may assume that
the same technical method is applicable to b0th.j For the same reason
this method naturally lends itself to use in drawing the outer limit of
the continental çhelf, except where the outer timit of a continental
rnargin lies more than 200 nautical miles from the baseline.

91. The link between the method of the envelope of arcs of circles
and the radial approach to al1areas of maritime jurisdiction is evident.
Judge Read shcd light on the matter in his dissenting opinion in the
Fislteries case in 1951:

"In the earliest days. the cannon on the coast, when traversed,
traced arcs by the splash of their shots. Later, the imaginary
cannon traced imaginary arcs which intersected and marked out
the lirnit based on cannon hot".^

Subsequently, Professor O'Connel1stressed that this method
"... is intrinsic in the cannon-shot theory, the assumption being
that the sea is reduced to conirol within the intersection of the arcs
of iraverse of coasial guns. The range of the guns.. .would then

provide a notional line of fall of shot which would not be a paraHel
trace of the coast, but an envelope of arcs of circles".

--
' Yearbookoj'rhr I~rrernarionolLow Commiss1953,Vol. Ilp.79.
' ci. Cafliin Lr iiorircdioiiii~rri'tiurioiIcmer..Paris.Pedone.1983,p. 85.
I.C.JRepor.~~. 051.p. 192.
Op. citp. 230. i501 REPLY OF MALTA 173

92. The method of envelope of arcs of circles presents a number of
special features which the authors just cited have emphasjzed.
93. The first is its geometrical and scientificallycertain character. As
Boggswrote, "there is one and only one such line which can be drawn
in front of any coast".'

94. Secondly,sinceit is the enuelopeof the arcsof circlesdrawn from
al1points on the baselines whichis alone operative, those arcs of circles
which lie landwards of this envelope have no influence on the
construction of the outer Iimit, and the points from which these arcs
were drawn are ultirnately of no value in the determination of the line.
Thcy are in effectlost.This shows that it is not al1the points of the base
linewhich are in the end determinative, but onlycertain base points- in
effectthe salient points of the coast. ZThenumber of basepoints relevant

to the construction of the outer limit will Vary according to the
configuration of the coast, and each basepoint may Vary from the
others in the length of outer limit whichit controls.
95. The featuresjust mentioned havenot, as we have seen, prevented
the method of the envelope of arcs of circles from rising from the level
of a convenient technical procedure to that of a method required by
law. It was unanimously adopted by the International Law

Commission in relation to the territorial sea.The 1958Conference,and
then the Third UN Conference on the Law of the Sea,had no difficulty
in reaffirming it. Nor has the prospect of its applicability to the
exclusive economic zone ever occasioned the least doubt. This
consensus is significant.ltis evident that neither States nor publicists
have viewed the fact that only certain basepoints control the line of

envelopes of arcs of circles as in any way weakening the propriety of
recourse to the method. Certainly they have not felt that the only line
acceptable for the outer lirnitsof the territorial sea is one which must be
totally parallel to the baseline and refiectingevery part in it. The system
ofbasepointsdoes not appear to have been regarded asjeopardizing the
link between the outer limit of the maritime zones and the coastal
configuration.

(e) Entirlement is Measuredjrom Basepointsand in al1Directions.

96. It can thus be seen how greatly in error Libya is when itcriticizes
Malta because it "substitutes basepoints ...for the coast as the basis of
continental sheli entitlementW3and for resorting to "multiple use of a
single basepoint.. . to create the illusion of a long coast when in
actuality only a short coast is in~olved":~In this connection the Libyan

' Op. cit.,545.
Ju$isdictio,mericanJovrnalofoIniernolionol LaVol.45(1951),p.240,BIp. 250.l
LibyanCounter-Mernoriap l,84.para.4.8.
Ibid.,p. 159,para.7.23.174 CONTINENTAL SHELF 1511

Counter-Mernorial says:
"Legal entitlement arises not from 'basepoints' but from the
natural prolongation of the land territory of the State and its
coastal exlent inta and underthe sea".'

"Natural prolongation starts [rom the coasts of the Parties and
not frorn baselines or base point^".^
Libya forgets that the outer limit is always drawn from certain

basepoints and not from al1the points on the coast or on the baseline.
The choice of these basepoints is in no way arbitrary. It is irnposed by
geography and every geographer would reach the same result in relation
to any given coast. These basepoints are in truth representative of the
coast, and the Libyan argument, which attempts to place "basepoints"
in opposition to "coasts" osa source of legal entitlement to continental
shelf rights, simpIy does not make sense.
97. The Libyan approach to the question of "coasts" may thus be
seen as resting upon a cornplete misunderstanding of the basis of legal
entitlement. Whatever their length, Malta's coasts generate equally a
seaward extension in al1directions, as rnuch towards the east as any

other direction, and these projections are to be determined according to
the methodof the envelopes of arcs of circles based on control points
located on straight baselines.The number of these points matters littlea3
Nor does it matter much whether these points are used only once or
more than once for a larger or smaller part of the envelope. Everything
is determined by geography and law. Thereis nothing abnormalin a
short coast generating an extensive maritime zone. That is the conjoint
effectof the radial projection and of the method of envelopes of arcs of
circles. This is what explains, itis necessary to repeat, why an island
State can attract considerabk maritime areas, even though it possesses
only a modest length of coastline.

(f) Malta's entitlement is delimitedonly by the equal enlitlement oj'

neighbouringStates.

98. The error committed by Libya on the plane of entitlement also
has repercussions on the plane of delimitation. Malta's entitlement
cannot open out freeiy in the limited space in which it is situate. Its
continental shelf cannot extend to 200 miles from the baselines. The
same is true for Libya. ln 1969the Court said that "delimitation is to be
effected...in such a way as to leave as much as possible to each Party
al1 those parts of the continental shelf that constitute a natural pro-

' Ibid..p. 37, para.2.39.
Ibid.,p. 42. para.2.49.
'Libya has iiself recognizedthis considerationin its coonethc dclimiration
betwcenNorwayand Denmarkin respect ofthe Faroes"..indeedthedelimitaiionlinc
(LibyanCountcr-Mcmorialp. 125,para.5.66).a singlepoint the Norwegiancoasr." 1521 REPLY OF MALTA 175

longation of its land terriiory into and under the sea, without en-
croachment on the natural prolongation of the land territory of the
other".' This means, in today's legal context, that delimitation must
leave to Malta as much as possible of its entitlement to a continental
shelf of200 miles from its baselines without encroachment on a similar
right of equal validity possessed bbyLibya. The extent of Malta's
continental sheli vis-à-vis Libya is thus determined by the conjunction
of two considerations: first, the necessity to restrain the maritime
extension to which it would be entitled if it were not situated in what
Libya calls a "coristricted setting" or a "confined. areaW2;second, the

necessity to treat Malta on a footing of equality with Libya,in the sense
that since the entitlement of each has the sarne validity as that of the
other, the sacrifice which eachmust accept by reason of the geographi-
cal context must be the same as that of the other.
99. It is not because the coasts of Malta are shorter than those of
Libya that the seaward extension from Maltese basepoints should be
more restricted than the seaward extension frorn Libyan basepoints. It
is not because Malta's coasts are shorter than those of Libya that the

seaward extension from Maltese basepoints should stretch only in a
frontal direction towards the Libyan Coast between Ras Ajdir and Ras
Zarrouq. This direction isno more suitable or appropriate than any
other. The maritime extension of Maita from its basepoints srretches as
much in a southwesterly and westerly and in a southeasterly and
easterly direction, as in a southerly direction, untiitmeets an extension
of equal validity from, as the case may be, Libyan, Tunisian or ltalian
basepoints. Libya'çclaim to terminate Malts's extension at a longitude
of approximately 16" has no more justification from the point of view
of seaward extensions from coasts generally than it has from that of the
interruption of a geological and geomorphological natural proto-

ngation. Nor can the fact that hlalta's coasts are shorter than those of
Libya justify the claim that the maritime boundary between the two
countries should pass within some 15 nautical miles of Malta's coasts
and more than 16û miles l'rom those of Libya. Such a delimitaiion
would be a strange way of respecting coastal geography.

' 12.~.Reports.1969.p.53,para.101.
' LibyanCounter-Mernoria)p. 28, par2.17and p.41. para. 2.47. CHAPTER VI

THE EQUIDISTANCEMETHOD

100. The Libyan Counter-Mernorial criticizes Malta for arguing that
"the equidistance method is obligatory in the present case"; for its
"attempt to confer on equidistance a cornpelling,mandatory character";
for rnaintaining that "between States with opposite coasts, the law
requires a rnedian line";for adopting afresh the contention - rejected by
the Court - of The Netherlands and Denmark; and for seeking to
"reassert equidistance as a rule and to treat equidistance as syno-
nymous with an equitable result".' Following this criticism, the Libyan

Counter-Mernorial makes a major effort to establish that "neither
equidistance not any other method has an obligatory character in
continental shelf delimitation" and devotes a whole chapter to this
atternpL2
101. Once again, Libya is here tilting at an imaginary Maltese
argument. Malta has never argued that equidistance has a legally
obligatory character, either in relation to opposite or adjacent States.
Malta has not reasserted the fundamental and inherent character of this
rnethod. Malta has not denied that in certain situations the equidis-
tance method rnight lead to an unreasonable and inequitable result, or

that it is then necessary to have recourse to variants of the method, or
even to an alternative method. What Malta has argued is that the legal
basis of title to continental shelfrights requires that, asa starting point
of the delimitation process, consideration must be given to a line based
on equidistance, since the equidistance method reflects the coastal
configuration and accords due spatial weight io ihe combination of
coasts and distance. But it is only to the extent that this primary
delirnitation, resting on the legal basis of title,produces an equitable
result by a balancing up of the relevant circumstances of the case that

the boundary coincides with the equidistance lir~e.~

~ib~a~~ounter-~emorialp , . 102,para.5.01;p. 103,para.5.05;p. 1045.09;p.
107,para. 5.1p.112,para.5.33.
Ibid.,pp. 102-135,paras.5.01-5.97.
-'secin particularMalteseCounler-Mernorial,pp. 77-paras.163-164;pp.81-82,
para.172. 102. The Libyan Counter-Memorial does not stop at a lengthy
restatement that the equidistance method does not have a legally
binding character - all this being no more than a statement of the
obvious, which Malta does not dispute; it goes further and argues that
international law is daily moving further away from equidistance. It
repeats such phrases as "the trends away from equidistance",' and "the
decline in the reliance on equidistanceW.*

103. In attempting to support this argument, Libya turns first to the
case 1aw.I But what are the facis? Although it istrue that the Court in
the AngleFrench ConrinenialShelj'case observed that in certain cases
the equidistance method could lead to an inequitable result, it isno less
true that the Court also observed that in certain cases this method
leads to an equitable result. Both this Court and the Court of
Arbitration have pointed out the advantages of the equidistance me-

thod. The 1977 Decision stated several tirnes that in more than one
sector the United Kingdom and France were in agreement that the
median line method was appropriate,and went on in some instances to
express ils agreement with the views of the two Go~ernments.~
Moreover, the line estabiished by the Decision was one based on
equidistance, as much in the Channel as in the Atlantic region. As for
this Court, it also had recourse to a variant of equidistance in the outer
segment of the line between Tunisia and Libya. Malta would hardly

have thought it necessary to recall these episodes had not the Libyan
Counter-Mernorial appeared to be denying their existence.
104. In support of its argument that the equidistance method is in
declina, Libya has referred, secondly, to State practice - and this as
much in a general way as in a manner specifically related to island
Statesas The treaiment of State practice in the Libyan Counter-
Mernorial is highly distorted - to such an extent that the preseni Reply
will deal with this aspect of the matter specifically in a separate part6

and in an Annex.' It will there be shown that State practice confirms
the importance which Malta attaches to equidistance.
105. Thirdly, the Libyan-Counter Mernorial suggests that support
may be found for the alleged decline of equidistance in the proceedings
of the Third United Nations Conference on the Law of the Sea.' This
support, so Libya suggests, may be found in the fact that in Article 83

' LibyanCounter-Mernorial ,.101, para.4.52p;.102,para.5.02.
Ibid.,p. 108,para.5.1cfp. 110.para.5.27andp. 112.para.5.33.
Ibid..pp. 102-10p,aras5..03-5.09.
+ Seee.g.paras.15,27,87,103,111, 12and k46 ofihc Decision.
Libyan Counter-Mernorial. plp. -1 IO.paras.5.-05.28:pp. 117-135para$.5.49-
5.97Part VI.
' Annex 4.
' Libyan Counter-Mernoriap l,p. 1-112, paras.5.29-5.33.178 CONTINENTAL SHELF [ssl

of the 1982Convention "the reference to the equidistance or median
line disappeared entirely".' In his dissenting opinion in the
TunisialLibya case,' Judge Oda has set out in detail the relevant
developments on this matter. Two points appear clearly from his
analysis. First, the equidistance method is the only one to have been
considered worthy of mention in the successive negotiating texts.
Secondly, while it is true that mention of this method does not appear
in the final text, one must not forget that this compromise text, adopted
in extremis on the last day of the Tenth Session, no more refers to
"equitable principles" than it does to equidistance. Thus, as Judge Oda
has emphasized, it gave satisfaction to the two "schools of thought"

which had opposed each other for years throughout the Conference - a
satisfaction "essentiallyof a negative kind, i.e. pleasure that the oppos-
ing school has not been expressly ~indicated".~ If the Libyan con-
tention, according to which the silence of Article 83 on the question of
equidistance evidences the "decline" of this method were correct, one
might equally assert that the silence of the same article on "equitable
principles" should be interpreted as evidencing the "decline" of this
notion also. In truth, neither the one nor the other of these conclusions
can properly be drawn from the compromise text that constitutes
Article 83 in its final form.
106. In short, the thesio of the "decline" of equidistance and of the
"trends away from equidistance" rests on nothing more substantial
than Libya's wishful thinking.

107. Not satisfied with developing its contention regarding the
decline of equidistance as a method of drawing continental shelf
boundaries, Libya has developed a number of criticisms of this method,
so far-reaching that they amount in effectto an assertion that equidis-
tance can never lead to an equitable solution, indeed that its very nature
precludessuch ripossibitity. Libya thus lalis into the grave mistake,
already pointed out by Malta, of jumping from the fact that equidis-
tance is sometirnes inequitable - which is true - to the conclusion that it
is necessarily alwojs so - which is not tr~e.~
108, Thus, according to Libya:

". .the equidistance method by its very nature fails to take account
of the physical factors and other relevant circumstances, and even
ignores geographical factors such as coastal lengths".

Equidistance, so Libya States,
"cannot take account of other relevant factors such as geormo-

Ibid.,p. 112,para.5.32.
21.C.J. Reporrs. 1982,pp. 234-247.
Ibidp..,246.
Cf. Maltcse-CounlerMemorial.p. 7para.164.
'Libyan-CounterMcmorial,p. 23,para.2.0pp. 151-152,paras.7.M-7.05.1561 REPLY OF MALTA 179

phology, geology, physical appurtenance of shelf to landmass,
conduct of the Parties. ekct of delimitations with third States or
the element of proportionality".'

If this criticism werejustified, equidistance could never be used, and it
would be impossible to understand either why Governments have
several tirnes - indeed even often - used it intheir boundary agreements
(as the Court has itself noted in its 1982judgment),' or why the cases
have accorded ita place alongside other rnethods.

109. According to the Libyaii Counter-Mernorial, the equidistance
method does not even have the merit of renecting coastal geography.j
ln this assertion Libya really goeç too Car.1fthere is one advan~age of
the equidistance method which iioone has hitherto contesied, it ist.hat
it reflects the coastal configuration. As the Court has itself declared:

"... itis the virtue - though itrnay also be the weakness - of the
equidistance method to take full account of almost all variations in
the relevant coa~tlines".~

There is no doubt that an equidistance line is controlled only by a
nurnber of basepoints. There is no doubt also that one or more
basepoints may control the equidistance line over a signifcant part of
its extension. But the equidistance rnethod shares these characteristics
with that of the envelope of arcs of circles. These features have not
prevented the latter method from having been successfully used in
practice before itwas adopted as the rule for deterrnining the outer
lirnits of the territorial sea. It is dificult to understand how they are of
such a nature as to render a delimitation based on equidistance

riecessui-ib.inequitable.
110. In this perspective the criticiçm made by Libya ofequidistance -
that it does not take account OFthe respective lengths of the coasts and
that it is in consequence necessarity inappropriate when the relevant
coasts are not of comparable lerigth5- appears to be beside the point.
Delimitation must reflect coastal geogi-aplij.,and not, contrary to the
Libyan view of the concept, the lertgrhsof the coasts. But delimitation
mustalso reflect the relationship between the maritime areas and the

coasts as well as the geographical relationship between the coasls
themselves. The use of basepoints to determine a line is justified
precisely because it respects thisdouble relationship. Depending on the
coastal configuration, the line will be determined by a larger or smaller
number of basepoints, variously spaced, and which may Varyin number
and spacing from one coast to another. The length, as such, of any
particular coast has nothing IO do with this question, since each

- -..
Ibirl.,152.para. 7.04.
"ibyanJReCounter-Mernorial.p. 152.para.7.04.Annex.
* I.C.J. Reporrs, 1982, p.para.126.
LibyanCounier-Mernorialp, p. 161F-161p.aras.7.24-7.27.180 CONTINENTAL SHELF [571

basepoint on each coast is a source of "radiation" in afl directions.' The
fact that equidisrance has been used by States without reference to the
length of coastlines2 by itselfserves to contradict the Libyan contention

that equidistance necessarily produces an inequitable result in si-
tuations where the coasts of the Parties are of significantly different
lengths. The weakness of the Libyan position is readily verifiable by
looking at Libya's own Annex of Delimitation Agreements.
1Il. As will presently be developed more fully in Part IV, the
difkrence in the length of the relevant coastlines and the equitableness
of an equidistance line in a given situation are rnatters which lie on

difierent planes. It is possible that in one or another given situation an
equidistance line rnay be inequilable - but this would be for reasons
oiher than the difierence in the length of the coastlines. Conversely, the
difierence in the length of the coastlines is not a feature which of itself
excludes equidistance when this is justified by the coastal configura-

tion' and iSequitable on the basis of other relevant circumstances and
by reference to the test ofproportionality. It is one thing to Saythat the
comparative length of coasts may in certain situations constitute a
supplernentary factor supporting an equidistant solution; it is another
to maintain that the presence of coasts of difirent lengths necessarily
renders an equidistance solution inequitable. No rule of law exists to
invalidate an equidistance delimitation, which is justified for orher

reasons, by reference to the sole consideration that the two coasts
involved are not of comparable length. In short, equality of coastal
lengths is not a necessary legal condition for recourse to equidistance.
112. lt is not necessary to dwell longer on the Libyan argument of
the necessarily inequitable character of the use of equidistance, for the
problem here is an entirely different one. It is that of determining
whether the equidistance method, the use of which is required as a first

step by virtue of the legal basis of title to continental shelf rights, leads
in the present case - having regard to al1the relevant circumstances -
to a reasonable and equiiable resuli. The use of equidistance in the
present case does not lead to "results that appear on the face of thern to
be extraordinary, unnaturai or unreasonable", to adopt the words of
the Court in 1969."In particular, the distorting effect which may in

'In its Mernorialin the TunisiafLibyo case, Libyawrote,veryproperly,tha"itis the
geographical reaquresofthe coastlineor a Staie whichprovidebasepointsemployedin
delimiting theouter limits of the territorialsea ...of the continentalshelf as well"
(Pleadings. Vol.1,p. 38,para. 92). This observationisequally valid for delimitations
between oppsite and adjacentStates.
In the Mernorialin the Libq.a/Tvnisiucase, Libya stated: "... the geographical
configurationofa coast- whetherconcave or convex,whetherprimarilyregularor highly
irregular.containtnggutîs, promontories or offshorislands or isle-s rnaydetermine
decisivelywhether, in particular circumstancesi,ht equidistancemethod is equitable"
(ibid.,para.94).The Libyan statementofthe rclationshipbetweencoastalgeographyand
equidistancewastherrstated morepreciselythan iiisto-day;it wasnot tied to the length
O/ thecoastline.
' I.C.J. Reports, 1969p.23. para.24.[58] REPLY OF MALTA 181

certain circumstances be produced by a minor geographical feature on
a lateral equidistance line, and which increases as the line moves
towards the open sea, does not arise in the present case. The coasts of

Malta and of Libya are obviously opposite each other, and not the
slightest element of adjacency exists. We are not in the preseni case
confronted by a minor coastal feature which "makes the equidistance
line swing out laterally across [one State's] coastal front, cutting it off
frorn areas situated directly beforethat front.' Indeed, quite the reverse;
itis the Libyari line which manifestly produces such an efiectby seeking
to move the boundary so close towards Malta as to cut itoîTfrom areas
which can properly be regarded as lying directly in front of its coasts.

Ibid.pp.31-32. para. 44. PART III

REBUïTAL OF LIBYAN ARGUMENTS TENDING TO

DISTORTTHE GEOGRAPHICAL AND LEGAL
FRAMEWORK OF THE PRESENT CASE

CHAPTER VI1

RECOGNITION AND APPRECIATION OF
GEOGRAPHICAL FACTORS

113. It is a constant theme of the Libyan Counter-Memorial' that
Malta's Memorial shows a "neglect" of geographical factors. However,
when the particulars of the Libyan complaint of"neglect" are set forth it
becornes immediately apparent that it is the interpretation and legal
appreciation of the geographical factors which içthe real source of
contention.Thus the Libyan pleading in practice spends many pages
examining Malta's arguments relating to geographical factors; but
much of the substance of the Libyan Mernorial is devoted to an attack
upon the legal appreciation of the geography, geomorphology and
geology of the case presented inMalta's Counter-Memorial.
114. The difference betweenthe two Parties concerns the natureand
appreciarion of geographical facts and factors for purposes of con-
tinental shelf delimitation within a legal framework.e for example,
the concept of "coast". In the Libyan conception of proportionality, the
only means by which Libyan coasts can be given legal significanceand
appropriate credit is to allow a delimitation which would give Libya a
virtual monopoly of the seabed of the Pelagian Block and would deny
Malta any appreciable seaward reach of juridiction. In accordance
with this methodology Malta's coasts are given little or no weight for
legal purposes. InMalta's view the argument relying upon proportio-
nality (based upon the ratio of the lengths of coasts) is not a standard,
objective, andobvious "geographical fact" or "factorInthe history of
the law of the sea, andunng the long evolution of the territorial sea as
a concept, it was not once suggested that long coasts could produce
proportionately broad belts of territorial sea as against opposite "short

coast" States.
115.There is no warrant for assuming that for purposes of de-
limitation "geographical facts" involve only matters of detail and the
measurement of incontrovertible data.
' LibyanCounier-Mernori,p.22-42;112-117and151-164. 116. In the Maltese Counter-Mernorial it was stated that the geogra-
phical framework of the delimitation to be effected is uncornplicated
by the presence of Maltese islands near Libya or the existence of
peninsulas.' The position was surnrned up in the following passages:

"Two coastal States thus face one another in a very simple
setting, in the absence of narrow seas or other special
ci~cumstances".

"There is in legal terrns a complete absence of abnormal geo-
graphical features in the present case. There is nothing unusual in
the existence of an island State; and the Mediterranean and
Caribbean Seas and the Indian and Pacific Oceans encompass a
good number of island States. Nor is there anylhing unusual about
the Libyan coastline, which is obviously free from abnorrnaliries.
Moreover, the relutionshipof the Maltese and Libyan coastlines is
quite unremarkable. As a rnatter of principle,only unusual features,
which involve serious departures frorn the primary elements in the
geographical framework, can be subjected IO the process of abate-

ment on equitable grounds. To resort to adjustrnents where noth-
ing in the geographical situation justifies it would be to refashion
geography and would involve a crude process ofapport ionment".'
117. These straightforward descriptions appear to have grompted
Libya to respond by a series of repetilious counter-assertions. Malta is
content to reaffirrn the charactcrisations quoted in the previous para-
graph and to rnake certain observations on matters of principle.
118. Libya asserts that "the differencein size - and in particular in

the lengths of relevant coastlines - is... a key relevant circumstance in
the present case"., This proposition is, of course, not a reference to
geographical facts but a statement ofa legalconclusion. Malta does not
deny the difference in size and therefore the complaint of the Libyan
Counter-Memorial is that Malta's viewsof'il iuw dimerfrom its own.
In so far as States do differ in size. in terms of lengths of coasts or
otherwise, such variations are not regarded as abnormal but rather the
reverse.The juxtaposition of island States and mainland States, or large
States and small States, js a farniliar and normal aspect of geography
and of international relations, and in this respect the relation of Malta
and Libya is in no way exceptional.
119. The thinness of the reasoning in the Libyan Counier-Mernorial

Maltesehlemorialp.36,para.114.
Ibid.
'tbid., p128,para.263.
Libyan Counier-Mernoriapp. 22-42.
5 Libyan Counter-Mernorial, 25. Iiar2.10.184 CONTINENTAL SHELF [63]

is emphasised by the appearance of the assertion that "normality does
not exist in geographical settings".' This is no more than a reference to

the obvious fact that al1situations are IO some degree individual. But
variations and different permutations will still encompass certain ele-
ments which are recognized as regularities, as normal combinations of
circumstances. The existence of an island State opposite a long Coastor .
mainland State is a normal situation, and there are examples in many
regions of the world.' There is, however, a more substantial point to be
considered. The question of geographical normality is not to be weigh-

ed in the abstract. The real question is:what is normal, or unusual, for
purposes of the law relating to continental shelf delimitation? The
jurisprudence available suggests that in the case of opposite States the
presence of promontories or intervening islands constitutes a com-
plication of the kind which calls for sorne modest adjustment of the
delimitation which would otherwise be based upon equidistance. In the

same way, the practice of States, which is reviewed el~ewhere,~gives a
strong indication that relativesize,and differencesin coastal lengths, do
not constitute relevant factors for purposes of continental shelf de-
limitation. Such considerations are generally ignored in the practice of
States.

3. THECONTINUINSG IGNIFICAN CFETHE DISTINCTION

B~~TWE OEPPOSIT END ADJACENS TTATES.

120. In its Memoria14Malta stated that "the principle that where the
coasts of two States are opposite to one another the median line will
norrnally bring about an equitable result has been explicitly recognised
in all three delirnitation cases so far decided by international tribunals".
Moreover, this view was confirmed by a substantial body of the

practice of States in situations which are legally comparable with the
coastal relationsliips ofMalta and Lib~a.~
121. ln the same connection Malta pointed out that the factor of
proportionality as expressed in terms of coastal ratios is inapplicable in
the case of opposite States as amatter of principlq6 and the opinion of
Professor Bowett wasinvoked in the followingpassage:

"The relevance of the proportionality factor is more dificult to
assess. Clearly, it is entirely subservient to the primary criterion of

lbid., p. para. 2.1See also para.2.14:"The word normalhas no placanyn
geographical-geomorphologicalsetting".
146.MalteseMemorial.pp.61-96. Seealso MalteseCounter-Mernolp. 111-123145-
PartVI ofthis Keply;see alpara79 above and Annex4.
' Pp. 59-60paras. 181-183.
MalteseMemorial. --.61-96. See also Maltcsc Counter-Memonapp.111-123;
14*5146.
MalteseMemonal, p.125.para.258.[641 REPLY OF MALTA 185

'natural prolongation*,so there can be no justification for ignoring
the geological evidence and simply dividing the shelf according to
coastal ratios. Nor, indeed, are such ratios to be calculated on
actual coastal length, for the Court envisaged a 'coastal front', a

line of general direction to theCoastrather than a line followingits
sinuousities (so that islands may count for this purpose, as part of
such a 'front'). Indeed, it would seem that the proportionality
factor might only be applied, or be meaningful, in the case of
adjacent States (not 'opposite') wherethe existence of a markedly
concave or convex coastline will produce a cut-off effect it'the
equidistance principle is applied: that is to Say,will allocate to one
State shelfareas which in fact lie infront of,and are a prolongation
of,the land territory of another".'
122. In its Counter-MemorialZ the Libyan Government adopts a

number of arguments with the object of contradicting the contention
just described. The Libyan position can be surnmarised as fo1lows:-
(a) In the first place, a nurnber of propositions are rehearsed as
though the Maltese Mernorial had attacked them and rehabilitation

was called for.
(b) There is a false assumption that, because there is no sharp Iegal
dichotomy between the "opposite" and "adjacent" situations (a "practi-
cal" but not a "legai" difference),the difference has no legal consequen-
ces.
(c) The reader is not expected to notice that the "opposite" or
"adjacent" issue, however it was formulated, occupied the substantial
attention of the Courts concerned in al1 three of the relevant cases
decided by international tribuntils.
(d) The effect of the reasoniiig of the Court of Arbitration in the
Anylo-FrenchArbi!raiion is misreported.

(e) It is assumed that if the distinction between "opposite" and
"adjacent" States is reduced in significance, this wiil adversely affect
the equidiçtance method as a rneans of achieving an equitable solution.
These matters will now be examinedone by one.

(a) Aitacks upon a nori-existeni Muliesr Thesis

123. In a series of paragraplis3 the Libyan Counter-Mernorial ex-
plains that the "legal principle" is the same both in the case of
"opposite" and "adjacent" coasts4; that "in terrns of geometry the
exercise [is] the same";' that "ihere [is] a practical differencebut no

TheRegime of lrlands ininrernationalLaw(197164..
Pp.102,112-117.
''Ibid.para. 5.34.ernorial,pp112-1 17paras.5.34-5.48.
1bM.186 CONTINENTAL SHELF [651

legal difference";' and that "there is no sharp dichotomy between
opposite and adjacent coastsW.fThese assertions form part of an attack
on a " Maltese thesis" which does not exist. It can be agreed that in a
certain sense, and particularly in a geometrical sense, the "legal prin-
ciple" is the saine in both cases and the differenceis "practical"; but this
isreally changing categories without changing .the substance of the
matter. The statement that in fact certain situations are hybrid, and

that there is no "sharp dichotomy" between "opposite" and "adjacent"
coasts, is not a statement that there is no difîerence.

(b) The Consequence of' the Dichotomy Between "Opposite" and
"Adjacent"Situations

124. In the context of delimitation in accordance with equitable
principles, the difference in geographical circumstances is crucial and
this remains so whether a particular variation is described as "legal" or

"practical". The Libyan argument becomes a caricature of itself in the
concluding ~aragraph.~ There it is stated that "there has never been
any legal difference between opposite or adjacent coasts ... except in
the purely practical sense that Courts acknowledged the increased risk
of distortion with a lateral line and therefore accepted the need to offset
any such distortion by a careful balancing of al1 the equitable con-
siderations". Here, "the purely practical sense" involves legul con-
sequences - the offsetting "of any such distortion" in the case of a
"lateral line". The logic of the Libyan whole pleading collapses utterly

at this point, since there can be no question of "distortion" unless there
is a concept of :iprimary boundary indicated by the major aspects of
the coastal geography. In the case of a median line between "opposite"
coasrs rhere is no cause of distortion, aparl from the incidence of "islers,
rocks and minor coastal projection^".^The reference to "a lateral line"
in the quotation above assumes both a primary boundary which reflects
coastal geography and a critical difference between "opposite" and
"adjacent" caasts.

(c) The Rôle of the Distinction Between "Opposite"and "Adjacent"
States in Cases Decidedby lntrrnarionol Tribunals.

125. The insistence of the Libyan Counter-Mernorial on "the pro-
gressive disappearance of crridistitrcrioti5between 'opposite' and 'ad-
jacent' States6"involves a bold dismissal of the undeniable: in the three
cases decided so far by international tribunais, the Courts involved

--
' Ibid.paras.5.39,5.41.
Ibid pa.ra5.44.
' Libyan Counter-Mernoria l.117.para.5.48.
Norlh Sru ConrinvnruShuu cases.1.C.JRrpui.15.1969p. 36, para57.
' Emphasis supplieci.
' LibyanCounter-Mernorial .p.102,para.5.02, 112 (heading). [661 REPI.YOF MALTA 187

were much concerned with the identification of geographical si-
tuations in terms of "opposite" or "adjacent" States. The significance
of the distinction as a matter of pnnciple was given ciear recognition in
the following passage in the Judgment of the Court in the Tunisia-

Libya Continental Sheif case:-
"While, as the Court has already explained (paragraphs 109-
110), there is no mandatory rule of customary international law
requiring delimitation to be on an equidistance basis, it should be
recognised thai it isthe virtue- though it may also be the weakness
- of the equidistance method to take full account of almost al1
variations in the relevant coast-lines. Furthermore, the Court in its

1969 Judgment recognised that there was much less difficulty
entailed in a general application of the equidistance method in the
case of coasts opposite to one another, when the equidistance line
becomes a median line, than in the case of adjacent States (1.C.J.
Reports, 1969, pp. 36-37, para. 57). The mujoi.change in direction
undergoneby the Coast ojTrrnisiaseemsto theCourtto go somewaj,
though not the whole wny, towards transjormingthe relationship of
Libya and Tunisiufrom that of'adjucent States ro that oj'opposite
States, and rhirsCO produce a situation in whirh the position oj'un
equidistanc~line becomes a jucror to be given more weighr in the
balancing of'equitable considerations than would orherwise be the
case."'

So much for the so-called "progressive disappearance" of the distinc-
tion between "opposite" and "adjacent" States.

(d) The Reasoning ofthe Court inthe Anglo-FrenchContinentalShrIf
Arbitration.

126. In its treütment of the views expressed by the Court of
Arbitration in the Anglo-French Continental Sheij' Arbitrarion, the

Libyan Counter-Memoria12 fails to convey the nature of the exercise.
The Court of Arbitration was applying the provisions of Article 6 ofthe
Continental Shelf Convention to the Atlantic region. In so doing it was
concerned to make two points:-
(a) "Whether the Atlantic region isconsidered, legally,to be a case of

'opposite'States governed by paragraph 1 or a case of 'adjacent' States
governed by paragraph 2 of Article 6, appreciation of the effectsof any
special geographical features on the equidistance line has to take
account of these two geographical facts: the lateral relation of the two
coasts and the great distance which the continental shelf extends
seawards from those coa~ts".~

' I.C.J. Reports, 1982, p. 88, para. 126.See furtherthe Judgrnentat p.74., para.
Emphasissupplied.
' Decisionor30 June 1977,para. 241; and see also paraiJine.188 CONTINENTAL SHELF i671

(b) "ln so far as the point may be thought to have importance, the
Court is inclined to the opinion that the Atlantic region falls within the
terms of paragraph 1 rather than paragraph 2 of Article 6. As the

United Kingdom emphasises, there are a number of precedents in
which equidistance boupdaries between 'opposite'States are prolonged
seawards beyond the point where their coasts are geographically 'op-
posite' each other; and the assumption seerns to be that these are
prolongations of median lines". '

127. The Libyan Counter-Mernorial contends that the Court of
Arbitration is elirnincttingthe distinction between "opposite" or "ad-
jacent" coasts. This is evidently not so. The Court is indicating that the
dichotomy presented in Article 6 of the Convention is subject to
account being taken of the particular geographical facts of the Atlantic

region. Moreover. this reference to the geographical facts is necessary as
a part of the "appreciation of the effects of any special geographical
features on the equidistance line".'

(e) The Relution Between the Eqiridisrunce Mutliod und rlir
DistinctionBerween"Opposire"and"AdjljncenrS "tates.

128. A rernarkable feature of the reasoning offered by Libya (in
developing the thesis that the distinction between "oppositc" or "ad-

jacent" States has "disappeared") is the assumption that, if certain
geographical situations are not characterised in terms of "opposite"
coasts, or are seen to be hybrid in nature, such possibilities exist at the
expense of the role and significance of the equidistance method. This
assurnption is completely without foundation. Thus, for example, the
Court of Arbitration in the Anglo-FrenchArbitrarion clearly did not
consider that, ifthe situation in the Atlantic region were to be classified

as one of "adjacent" States (under paragraph 1 of Article 6 of the Con-
tinental Shelf Convention), this would involve setting aside a solution
based upon eq~idistance.~In fact, the Court proceeded to apply the equi-
distance method, taking account of the presence of the Scilly I~lands.~

' Ibid.para. 242.
Ibid., par241.Also with reference to the Atlantic region the Court had this to Say:
"Whereas in the case of 'opposite' Staamedian line will normallyefiecr a broadly
equitable delimitation, a lateral equidistance line extending outwards from the coasts of
delimitation by reasorthe distorting ekof individual geographical features. ln short,
it is the combined ekt of the side-by-side relationship of the twa States and the
prolongationof the lateral boundary for greai distances to seawards which may be
productive ofinequity and is the essenceofthe distinction betweenandj'opposite'
coasts situations".
Ihid., para. 242.
(hid.p.ras.243-252. [681 REPLY OF MALTA 189

The result was a modification of the equidistance method but the

modusoperandi remained that of equidistance. '
129. Both the jurisprudence available and the essential nature of the
process of delimitation in accordance with equitable principles confirm
the continuing significance of the distinction between opposite and
adjacent States. The Libyan views on this question lack any foundation

and have a tactical purpose which has no relation to doctrinal dis-
cussion. The objeci of the Libyan thesis attacking the distinction would
appear to be to distract attention [rom the relationship of the reat
coasts of the Parties, which is clearty opposite and lacks any hybrid
elements. In view of the evidence indicating that equidistance is the
correct method of delimitalion in the case of opposite States, the

tactical needs of Libyain the matter are easily understood.

'In the words ofthe Court ofArbitration (Para. 249):
"The Coiirt notes that in a large proportion of the delimitations known to it, whcrea
particular geographicalfcature has influencd the course of a continental shell boundary,
the method of delirnitationdoptcd has becn some modification or variant of the equi-
distance principlerather than its total rejetion. In the present instance, the problem also
ariscsprccisely fromthe distorting etfcct of a geographical feature in circumstanves in
which the line equidistant from the cciasts of the two States would otherwise con-
stitute the appropriate boundary. Consequently, it seems to the Court to bein accord
not only with the legal rules governing the continental shell but also with Statc prac-
tice to seek the solution ina rnethod modifying or varying the equidistance method
rather than to have rccoursc toa wholly diffcrentcriterion of delirnitation. The appro-
priate mcthod, in the opinion of the Court, is to take amount of the Scillasspart of
the coastline ofibc UnitedKingdom but to gjvcthem las than thCs full cnain applying
the equidistance method.Just as it is not the functioa of equity in the delirnitation of
the continentalshelf complctcly to rcfashion geography, so it is aho not the function
of quity to crcatc a situation of comptete cquity wbcrc nature and geography have
atablished an inequity. Equity doesnot. thcrdore, cal1for coasts, the relation of which
to the continentalshelfis not equal. to bc trcatcd as having completcly equal effets.
What equity calls for isan appropnate abatcment of the disproportionate effcctsof a
portionrolthe Coastofthe United Kingdom"*continental shclf oa somcwhat attenuatd CHAPTER VI11

THE RÔLE OF GEOGRAPHICALCONSIDERATIONS
IN ACHIEVING AN EQUITABLE RESULT

130. Referencehas already been made to the Libyan contention that
Malta has neglected the geographical factors relevant to the issue of

delimitation in the present case. In the previous chapter the substance
of this charge has been rebutted but the question of the apppropriate
rôle of geographical considerations has certain facets which cal1 for
examination. Such examination is the more justified in the light of the
approach to geographical factors to be discovered in the Libyan
Counter-Mernorial.
131. The approach apparent in the Libyan arguments involves two
related elements. In thefirst place there is a more or lessexclusivefocus
upon ;'the physical factors of geography, geomorphology and geo-
logy . It is true that in a passage of the Libyan Counter-Memorial,
appearing near the end of that pleading, it is accepted that "there are
other factors which in a given case may also be relevant - or even
determinate - in reaching an equitable re~ulr".~ The orher factors

referred to are the conduct of the parties, security consideration,
navigation channels, and historic rights. However, virtually the entire
substance of the Libyan Counter-Memorial is devoted in practice to
geographical and geomorphological considerations, and this impression
is confirmed by a perusal of the Libyan Subrnissi~ns.~
132. This focus upon the "physical factors" is accompanied by a
second element, namely, the highly abstract and academic fashion in
which these factors are presented. This legally inappropriate approach
to the "physical factors" will be analysed in the following paragraphs.

133. The fact is that, since the earliest days of the evolution of the
law relating to the continental shelf, the elements of geography and
geomorphology have appeared no1 in a pure and abstract form, but

' LibyanCounter-Mernoriapp.22-23, 139-142, 151-162.
* lbidpp. 141-142, paras.6.07-6.08.
' Ibirpp. 171-172.1701 REPLY OF MALTA 191

within a legal framework and within the particular context of de-
limitation according to law. The very terrn "continental shelf" can no
longer be classified as a physical value: it has become a legal term of
art. Sirnilarly, the physical concept of "natural prolongation" has
undergone a process of legal refinement. Thus in the AngleFrench
ContinentalShey Arbitration the Court of Arbitration made the follow-
ing highly pertinent statement on an important point of principle:

"The continental shelf of the Channel Islands and of the main-
lands of France and of the United Kingdom, in law, appertains to
each of thern as being the natural prolongation of its land territory
underthe sea. The physical continuity of the continenial shelf of
the English Channel means that geographically it may be said to be
a natural prolongation of each one of the territories which abut
upon it. The question for the Court to decide, however, is what
areas of continental shelf are to be considered as legally the natural
prolongation of the Channel Islands rather than of the mainland of

France. In international law, as the United Kingdorn emphasised in
the pleadings, the concept of the continental shelf is a juridical
concept which connotes the natural prolongation under the sea not
of a continent or geographical landrnass but of the land territory
of each State. And the very fact that in international law the
continental shelf is a juridical concept means that its scope and the
conditions for iis applicaiion are not determjned exclusivelyby the
physical facts of geography but also by legal rules. Moreover, it is
clear both from the insertion of the 'special circumslances' pro-
vision in Article 6 and from the emphasis on 'equitable principles'
in customary Iâw that the force of the cardinal principle of 'natural
prolongation of territory' is not absolute, but may be subject to
qualification in particular situation^".^

134. The legal connotation of the concept of natural prolongation
was explained clearly and decisivelyin the Judgment of the Court in the
Turiisiri-Libj.0CoirririerztuShrlJ'case. The following passages are of
particular interest:

"43. It was the Couri iiself in its 1969 Judgment which gave
currency to the expression 'natural prolongation' as part of the
vocabularly of the international law of the sea.It should, however,
first be recalled that the gevgraphical and other physical circum-
stances of that case were difîerent [rom those of the present case. In
particular the whole relevant area of the North Se3 consisted of
continental shelf ai a depih of less ihan 200 rnetres. Secondly, it
should be borne in rnind that, as the Court itself made clear in ihat
Judgment, itwas engaged in an analysis of the conceptç and

' Decision of30Junr 1977,pari. 191.
I.C.J. Reporrs, 1982,4647.192 CONTINENTAL SHELF u.11

principles which in its view underlay the actual practice of States
which is expressive, or creative, of customaryes. The concept of

natural prolongation thus was and remains a concept to be
examined within the context of custornary law and State practice.
While the term 'natural prolongation' may have been novel in
1969, the idea to which it gave expression was already a part of
existing customary law as the basis of the title of the coastal State.
The Court also attribut4 to that concept a certain role in the
delimitation of shelfareas, in cases in which the geographical
situation made it appropriate to do so. But while the idea of the
natural prolongation of the land territoryfined, in general terms,
the physicalobject or location of the rights of the coastal State, it
would not necessarily be sufficient,or even appropriate. in itself to
determine the precisextent of the rightofone State in relation to
those of a neighbouring State.

44. ... The Court in 1969 did not regard an equitable de-
limitation and a determination of the ljmits of 'natural pro-
longation' as synonymous, since in the operative clause of its
Judgment, just quoted, it referred only to the delimitation being
elfected in such a way as to leave 'as much as possible' to each
Party the shelf areas constituting its natural prolongation. The
Court also clearly distinguished between a principle which aflords
the justification for the appurtenance of an area to a State and a
rule for determining the extent and limits of such area: 'the
appurtenancc of a given area, considered as an entity, in no way
governs the precise delimitation of its boundaries' (I.CReports,
1969, p. 32, para. 46). The Court is therefore unable to accept the
contention of Libya that 'once the natural prolongation of a State
is determined, delimitation becomesa simple matter of complying

with the dictates of nature"'.
135. From these examples certain conclusions can be drawn. In the
first place the intellectual foundations of the Libyan Counter-Memorial
are unsound and involve major misconceptions of law. The law con-
cerning continental shelf delimitation does not rest upon "physical
factors" in a direct andimplistic way. Secondly, the Libyan reasoning
displays a self-serving over-simplificationn "geography" and other
"physical factors" areapplied with notably subjective results. This is
especially apparent in relation to the Libyan argument based upon

proportionality.

3. PHYSICAF LACTOR SND GEOPOLITICA RLESULT IN
THE LIBYAN CASE: THE EXAMPL EF PROPORTIONALITY

136. The reasoning in the Libyan Mernorial and Counter-Mernorial
employs arguments based upon "physical factors" which are not ap-
plied within a legal framework. This approach not only involves major
departures from legal principle but results in the use of arguments
which rest upon a highly subjective notion of "geographical con- (721 REPLY OF MALTA 193

siderations", used as a flag of convenience for claims which cannot be
related to the applicable principles and rules of international law.
137. The question of proportionality will be dealt with subsequently
in Pari V of this Reply and the present reference is confined to the

purpose of illustrating the real nature of the Libyan reliance upon
"physical factors" in the present case.
138. By way of preface it may be recalled that one-third of the
Libyan Submissions' relate to the thesis that equitable principles cal1
for the application of a certain concept of proportionality according to
which the delimitation should reflect the ratio.of "the lengths of the
relevant parts" of the coasts of the Parties. In what sense can such an

approach to delirnitation be said to reflect"physical factors"?Certain it
is that this "proportionality" argument refers to coasts, but for the rest
it relies upon rnatters of assumption and policy which have no con-
neciion with "physical faciors". The introduced factors of a non-
geographical character are the following:

(a) the concept of "relevant" c~asts;~
(b) the assumption that the result will be in accordance with equit-
able principles;"
(c) the assumption that the length of Libya's coasts, or any part
of them, should determine the seaward reach of Malta's appurtenant

areas ofcontinental sheK4
139. The delirnitation contended for by Libya involves an align-
ment which, in its several versions,wauld involvea virtualrnonopoly of

the seabed areas lying belween Malta and Libya.5 The Libyan argu-
ment rests upon political suppositions which have no normative value
in law. The Libyan version of proportionality does not reflect"physical
factors" or the geographical situation in the present case. Instead the
Libyan claim based on proportionality represents a geopoliticai special
theory. This theory has two elements. The first is the selecrion of a
singlephysical factor - the lengih of coasts, or of "relevant coasts" - to
the-exclusion of ather factors, geographical or otherwise. The second is

the imposition of a single principle - proportionality - in a specialised
and inappropriate form - the ratio of coastal lengths. The outcome has
nothing in cornmon either with geographical considerations or with
equitable principles. The Libyan attachment to the "physical factors'.of
geography and so forth is hollow and does not reflect legal principle.

1 LibyanCounter-Mernorial. pp171-172.
Ibid.Submissions. ara. 7.
' Ibid.paras5,6 and 7.
Ibid.paras.6and 7.
@ 3 Secthc Libyan Mernorial. Map 9: and seeMaltese Countcr-MernorMap. No. 4. CHAPTER IX

THE EQUAL STATUS OF ISLAND STATES
WITHIN THE FRAMEWORKOF EQUITABLE
PRINCIPLES

140. The Libyan Counter-Mernorial claims that Malta has asserted
that island States have a privileged status, "a privileged position in
continental shelfdelimitation".' This is a misrepresentation of Malta's
position. Moreover, when the Libyan Counter-Mernorial defines the
"privileged status"in more specificterms, it is seen to be in substance
simply a reference to Malta's general case on the principles of de-
limitation. Indeed, the burden of Libya'scornplaint appears to be that
Malta, as a coastal State, does not accept a legal disability. As the
Libyan Counter-Memorial puts the maiter:

"The inescapable conclusion that is derived from the Maltese
Mernorial is that Malta claims that, as an island State, its con-
tinental shelf should extend as jar as the contineniol shrijof'anj
other cousru/ srate, irrespective of its small sizz and its restricted
.coastline, and that any considerations that might affect thecase of
dependent islands do not apply to an Island State".'

141. The essence of the problem certainly lies in the fact that the
significanceof coasts, as a matter of legal principle, is in issue between
Malta and Libya. This question of principle will be pursued further in
Part IV of this Reply, and the relevance of the size- the landmass - of
the coastal State has been examined in Part 11.For present purposes

only certain specific allegations of the Libyan Counter-Mernorial will
be reviewed.
142. The Libyan Counter-Mernorial makes the statement set forth in
paragraph 140above, and then complains that "this allegation does no1
find support in the jurisprudence referred to by Malta, nor does it
accord with the treatment of this issue in the United Nations Sea-bed
Cornmittee and at the Third Conference on the Law of the Sea".3 In

LibyanCounier-Mcmoriat,pp. 92-9and seein pariicular,p. 98. para.4.45.
' Ibidp. 92, par4.34Emphasissupplid.
LibyanCounter-Mernoria,. 92, para.4.34.1741 REPLY OF MALTA 195

one iense this cornplaint isspurious, since the formulation represents a
question which, if Malta's viewof the law be correct, ex hypothesi could
not arise. If island States were not regarded - frorn the point of view

which Malta upholds - as exceptional when the Sea-bed Cornmittee
and the Third United Nations Conference were at work, then no
reference to the "special case" of island Statescan be expected. Indeed,
the Libyan reasoning from silence points in al1directions, ifconsistency
is to be observed. The various debates and records make no reference
to "long coast" States or "large" coastal States either: and therefore it
follows that these sources cannot be adduced to support Libyan
positions.

143. ln so Caras the debates in the Law of the Sea Conference relate
to the entitlementaofislands to continental shelfand exclusiveeconomic
zone, the outcome confirms Malta's view that island States are not
subject to any legal disability in the contexts of entitlement and
delimitation. The materials set forth in the Libyan Counter-Mernorial'
which refer to the provenance of Article 121 of the Law of the Sea
Convention (on the Régimeof Islands) merely confirrn the view of the
matter to be found in Malta's Mernorial.*

144. The Libyan Counter-Mernorial contendsS that Malta's view as
to the 'significanceof islands in maritime delimitation is not supported
by the Decision of the Court in the Anglo-French Continental Shey
Arbitration. The reasoning of the relevant passage in the Libyan
pleading is quite unpersuasive. Thus it is said rhat the Court of
Arbitration only dealt with certain arguments concerning the status of
islands because the Parties in that case presented them. So the Parties,

did, and in dealing with those arguments the Court of Arbitration took
clear positions and expressed viewson matters of law. Ir did not dismiss
the arguments as irreleuant. Moreover, the political status of the
Channel Islands occupied a substantial section of the part of the
Decision relating to the "Channel Islands regi~n".~ The Court ex-
pressed its conclusion as follows:

"lt followsthat, as between the United Kingdom and the French
Republic, the Court must treat the Channel Islands only as islands
of the United Kingdom. not as semi-independent States entitled in
their own right to their own continental shelf uis-à-visthe French
~e~ublic".'

145. Strange to relate, whilst setting up a false target - the alleged
Maltese thesis of a privileged status of island States - the Libyan
Counter-Mernorial, apparently by way of a concession, produces a

Pp,95-97 .dilis4.41-4.43.
Pp.54-55. paras168-169.
Pp.92-93. para4.35.
Decisioof30June1977, paras.183-186.
Ibidpara.186.196 CONTINENTAL sHELF 1751

correct statement of the legal position as contended for by Malta. The
relevant passage is as follows:

"It is certainly conceivable that the overall geographical re-
lationship between two States might influencethe treatment of their
respective islands in delimitation agreements aimed at reaching an
.equitable result; and that such considerations might not apply in a
case where - in consequence of the fact that the island involved is
an independent island State - the delimitation would necessarily be
restrictedto the relationship of that island alone to the opposite
continental Coast. However, this does not irnply a privileged posi-
tion for such an island because of its independent political status

but, rather, results from the effect of the overall geographical
relationship between the respective States".'
This formulation is very close to Malta's position which maintains the
equality of island States and other coastal States within the framework

of equitable principles.

146. Malta's arguments in the present case observe, as they are
bound to do, two forms of discipline. First, they are closely related to
the legal framework of equitable principles governing continental shelf
delimitation. Secondly, they avoid reliance upon a plea of exceptional
circumstances: in the words of the Libyan Counter-Memorial, "Malta

claims that ... its continental shelf should extend as far as the
continental shelf of any other coastal State".'
147. in contrast, the Libyan argument in substance lies outside the
legal framework, for example, in promoting proportionality to the
status of a controlling principle, and calls, quite openly, for a privileged
status to be accorded not only to States with long coasts but aIso to
States with "an extensive continental land mas^".^ The Libyan use of
proportionality in an eccentric way, together with a version of natural
prolongation which does not accord with legal principle, produces a

claim to a monopoly of the seabed between Malta and Libya. That is
obtaining a privileged status indeed.
148. The true character of the Libyan position as a claim to privilege
- literally a special advantage, a lex privata- can be tested by reference
to the practice of States. The large number of delimitation agreements -
relating to various regions of the world - constitutes important ev-
idence of the views of States on the question of what is an equitable
result in the context ofcontinental shelfdelimitation. This evidence is set
forth in Malta's Mernoria14 and Counter-Mern~rial:~ and the evi-

Libyan Counter-Mernorialp. 93. par4.35.
P. 92,para. 4.34.
Libyan Counrer-Mernorialp. 41para. 2.47p.42, para2.50.
Pp. 61-96.
Pp. Ill-123 1.5-146.[Tb] REPLY OF MALTA 197

dential weight of such materialis affirmedin Part VI of the present
Reply.The practiceof Staks providesa massivecontradictionof the
appropriatenessand legitimacy of Libya'sclaim to a privilege both

as a "long coast" State and as a State with "an extensive continental
landmass".'

'Secalso Anne4 othisReply. PART IV

THE LEGAL SIGNIFICANCEOF COASTS

IN CONTINENTALSHELF DELIMITATION

CHAPTER X

'HE UNDERLY ING PRINCIPLES

1. THE IMPORTANCEOF THE RELATIONSH OFIPCOASTS TO OTHER
GEOGRAPH~F CAALTURES
149. Both Parties agree that the fundamental rule, which lies behind
the equitable principles governing delimitation,s that the appropriate-
ness of any method is a reflection of the geographical and other
relevant circumstances of the particular case.' Within this conception

the coastal configurations of the Parties have a majorôle,and this rôle
was emphasised by the Court in its Judgment in the Tunisin-Libjw
case.z'However, the Libyan argument, as presented in the Counter-
Mern~rial,~ focuses upon coasts (and lengths of coasts) in a highly
abstract way and divorces coasts from the overall geographical circum-
stances. This produces a serious departure from legal principle. Asthe
Court has made clear in its Judgment of 1982,it is therelationshipof
the coast to Chesubmarine areas adjacent to it, and the reiationshipof
the coast to the coasts of opposite or adjacent States, which have to be

considered when the process of delimitation is undertakenV4

150. The Court in the Tunisia-Libp case pointed out that the
practicat aspectof assessing the relationship of the coasts of the Parties

was the identification of the area "relevant to the decision of the
dispute". This area consists of thereas which can be considered to lie
offthe coasts of either the one Party or the other. The area "relevant to
the decision of the dispute" may be defined in various ways: In the
Angiu-Frenchcase the Court of Arbitration identified the "Atlantic
region" in relation to two coastlines abutting on the continental shelf
which were "comparatively sh~rt".~ Moreover, the shelf in issue in the
Atlantic region "extended to seawards of the coasts of the two countries
for great distance^".^

'Maltese-Mernoria..35,para110;LibyanCounter-Mernoria..22,para.2.01.
I.C.JReports, 198p.61, paras. 73-74.
Pp. 32-42, 151-162.
1.C.J. Repor1982,p.61, paras.73-75.
Decisioof 30 lune 1977, para.233.
Ibid. 199
[go] REPLY OF MALTA

151. In both the Memorial and Counter-Mernorial Malta has em-
ployed a simple figure, whichlakes the form of a trapezium, to illustrate
the concept of relationshipof the coasts of Malta and Libya. This figure
applies to the facts of the present case, mururis mufandis, the approach
applied to diffèrentsets of circumstances in previous cases. The trape-
zium is an exercise which seeks to identify the area of shelf "relevant to
the decision of the dispute". It involves no novelty whatsoever and the
reaction it has engendered in the Libyan Counter-Mernorial is
surprising.

152.It is the geography which must determine the general dimen-
sions of the area "relevant" to the delimitation. The area identified for
this purpose may be extensive, as it was in the T~inisia-Libyucase,and
this can be seen on a map when the distance is taken between Ras
Kaboudia and Ras Tajoura. Thus in the present case the trapezium
directly reflects the geography and coastal relationships which charac-
terise the dispute.
153. In identifying the areas which rnay be said \O lie either offthe
Maltese or Libyan coasts' not rnuch difficultyis involved. So far as the

Libyan coast is concerned, itseems very arbitrary to take, as Libya
does, a certain sector which has an eastern terminus at Ras Zarrouqa2
The Libyan pleadings take little or no trouble to justify this position in
legal terms. In the case of Malta the relevant coasts are rhose which
may be said to face any part of the coast of Libya, whether or not they
also facecertain other States. It is quite obvious by referenceto the task
of the Cpurt as defined in the Special Agreement that it is unnecessary
to identify with great exactitude the aspects of the coasts of Malta
which may be said to face or be opposite to the coasts of Libya. The
Libyan concern3 with coastal cletail is irrelevant if not obsessional.

154. In its Judgment in the Tunisio-Libya case the Court gave a
strong indication of the significanceof coasts as the basis of title to shelf
rights. The key passage in this respect is as follows4:

"lt should first be recalled that exclusive rights over submarine
areas belong to the coastal State. The geographic correlation be-
tween coast and submerged areas off the coast is the basis of the
coastal State's legal title. As the Court gplained in the North
Sea Continental Shey cases the continental shelf is a legal con-
cept in which 'the principle is applied that the land dominates
the sea' (I.C.J. Reports 1969, p. 51, para. 96). In the Aegean Sea

Continental Sheljcase the Court ernphasised that

' Judgrnentin the TunisieLibyu case, I.Reports,1982,p. 61, para.74.
Ljbyan Memorial.p. 156,para. 10.09;LibyaCounter-Mernorialp. 39, para.2.44.
I.C.J.Reports1982.p.r61,para. 73.. 32-35. CONTINENTAL SHELF 181-82]

'it is solely by virtue of the coastal State's sovereignty over the

land that rights of exploration and exploitation in the con-
tinental shelf can attach to it, ipsojure, under international law.
In short, continental shelf rights are legally both an emanation
from and an automatic adjunct of the territorial sovereignty of
the coastal State'. (I.C.J. Reports 1978,p. 36, para. 86).
As has been explained in connection with the concept of natural
prolongation, the coast of the territory of the State is the decisive
factor for titIe to submarine areas adjacent to it. Adjacency of the

sea-bed to the territory of the coastal State has been the paramount
criterion for determining the legal status of the submerged areas, as
distinct frorn their delimitation, without regard to the various
elements which have become significant for the extension of these
areas in the process of the legal evolution ofthe rules of in-
ternstional Law".

155. As Malta has already had occasion to point out,' the nature of
the legal basis of title must have a certain bearing on the criteria and
rnethods of delimitation. The highly ambitious Libyan claim to sub-
marine areas within a short distance of the coasts of Malta is incom-
patible with the principles stated by the Court in the passage above. By
no stretch of the imagination can the Libyan claim to a very high
proportion of the sea-bed dividing the tao States be said to satisfy the
"paramount criterion" of adjacency as formulated by the Court.
156. In the Judgrnent of the Court in 1982 the concept of the
continental shelf "as understood in international law" is related to the
principles applicable to delirnitati~n,~and careful note is taken of the

significance of the rôle of distance frorn the coast as "the legal basis of
the title to continental sheif rightsWa3 The positions underlying the
arguments presented in the Libyan Counter-Memoria14 continue to be
out of line with such contemporary thinking concerning title to shelf
rights and its retation to delimitation.
157. The concepts of adjacency and distance reflect the political and
security aspects of the interest of the coastal State and the "protective"
element in maritime juridiction. The distance principle, together with
the political and security interests of the coastal State, has the clear
implication that there be no major discrepancies in the seaward reach

of juridiction attributed to coastal States abutting on the same sub-
marine areas.
158. The considerations of principle set forth above receive strong
confirmation from the practice of States. This practice gives no support
for the view that "mainland" or "long coast" States should receivemore
than half the sea-bed areas dividing them from opposite "short coast"
States. The map of delimitations existing in the Gulf (attached to Limits

'MalteseCounter-Mernorial,pp.54-57.paras.96102.
I.C.J.Reporrs,1982.p. 43para.36.
' Iniparticulaat pp.80-87, paras4.10-4.24.1831 REPLY OF MALTA 20 1

in the Sea No. 94') is a sample of practice in an area containing
importantmineralresources.Iran,as the"longcoast"Statein the Gulf,
has been involved in delimitationagreementswith no less than five
opposite States. Theresultingboundariesstand in clearcontradiction

of the conceptionsadvancedby Libyain the presentproceedings.

' United StatesDeparimentofState,Officorthe Geographer.Bureauor Intelligence
and Research, September11, 1981.reproducedin this Reply as.Map No 2 on page
opposite. CHAPTER XI

THE SICNIFICANCEOF LENGTHS OF COASTS

1.LIBYAC 'SASERESTS UPON BASICERROR SF PRINCIPLE

159. The Libyan approach to the legal significance of the length of

coastsis deeply flawed by conceptual error and as a consequence the
Libyan pleadings fail to grapple with the real issues of principle and
policy.Asalways, itis necessary to find the right question to ask, before
seeking answers.The right question in the present context would seem
to be: What is the legal significanccoasts,since the rnatter of length
cannot be considered in a purely abstract form. In the present Chapter
Malta will seek to elucidate the significance of coasts, and, in that
setting, of coastalngths, for purposes of shelf delimitation.

2. COASTS HAVE A SIMILAR.LEGA SLIGNIFICANC INETERMS OF SEAWARD

R EACH

160. By way of introduction it may be said that, in the exposition
which follows, an attempt will be made to avoid a detailed cross-
reference to the views expressed in the Libyan Counter-Mernorial.The
general refutation will necessarily envelop the particular errors and
distortions to be found in that pleading. However, a major misre-
presentation calls for immediate notice. The Libyan Counter-Mernorial
States:

"From this, Malta draws the conclusion that the length of the
coastline hasno relevanceto the extent of the continental shelf area
appurtenant to that coast and, consequently,no relevancefor the
purpose of delimitation of this area vis-à-vis another State."'

No such conclusion is drawn in the passages cited by Lbya2 and no
such view is expressed elsewhere in Malta'sMemorial. The trapeziurn
figure, and Malta's discussion of coastal relationships in connection
with that fig~re,~stand witness to this misrepresentation of Malta's
position.
161.The substance of the problem can now be addressed. In the

P.84,para.4.18. Emphasiçsupplied.
2MalteseMemorial,paras. 128-129.246.
IbiJpp. 11S122, para24C-247.Lw REPLY OF MALTA 203

examination of coastal relationships qthin a context of legal principle,
two.assumptions must be made. In the first place, the princjple of
natural prolongation is a juridical concept to be examined within the
context of customary law and the general application of the equitable
principles applicable to deljmitation.il As a "physicai factor" natural
prolongation has no relevance to the facts of the present dispute, since

as has been shown$.it is not legally relevant and, in any case, the
seabed dividing Malta and Libya is a geologicalcontinuum. Secondly,
Malta considers referenceto "the landrnassbehind thecoastlineW3 to be
contrary to legal principle, and tibya's "large State" thesis has already
been examined in Part II.+
162. The key question of substance clearly is: What is the legal
significanceof coasts in the context of continental lhelf delimitation?
Libya sees the question - at least at one level- exclusivelyin terms of
the lengths of coastlines.' However, in the application OC the Libyan

arguments the political and geographical reality of coastlines as land
territory, bearing a legal and geographic correlation to adjacent sub-
marine areas, is left aside.The Libyan Submissions(2, 3 and 4) based
upon natural prolongation which conclude the Counter-Mernorial do
not refer to coastal configurations in any form, but to the so-called Rift
Zone. The Libyan argument based upon proportionality sirnilarly
moves well away from the actual coastal relationships. The formula of
the ratio of the differencein the lengthsof coasts - or "relevant" coasts

- simply uses lengths as an arithmetical element in a crudeprocess of
apportionment. the result of which bears no relation to coasts as such.
163. The legal significanceof coasts must be'drawn from the objec-
tive political geography of appurtenance and adjacency, since "the
geographic correlation betweencoast and submerged areas olfthe coast
is the basis of the coastal State's legaltitte".6There can be no reference
to geography - to coasts as geographical features - in the abstract. The
reference is in the legal context of delimitation in accordance with
equitable principles; and in consequence the relation of the coast to

other features is of pararnoun t importance. The relations which are
significant are,first of all. the relatibetween rhr cous? and the areos oj'
setlbed: in legal thinking this is usually described positivelyas adjac-
ency, and negativelyin terms of the principleof non-encroachment. The
second significant relationis that berween the c~asts of "neighbouring
States situated either in an adjacent or opposite position"!,'
164. The length of the coasts is naturally an aspect of these relations.

Secabovc,para.63.
In Part Iabove.
LibyanCounicr-Mernorialp. 84,para.4.19.
' ke paras.72-82abovc.
LibyanCounter-Mernoriapl.p. 38-42. paras.2.42-2.51. pp. 83-92, paras.4.17-4.33;
pp. 151-162(Chapter7).
6 I.C.JReporrs,1982.p.61.para.73.
Ibid., para.74.204 CONTINENTAL SHELF I861

But for present purposes length is not a "piece of string" so many miles
long. Inthecontext oj'reulcousts, lengrh issimplj unuspecroj'theor;erull
relurionship berween the cousts oj'neighbouringSrutesundbeiween coasrs
utid the seubed cirrusreleuani tu the delimitaiion.
165. For purposes of delimitation, it is the relation of coasts to
adjacent submerged areas which is of primary interest, and this can
only be expressed in terms of a distance principle, that is to Say, a
presumed equulitj oj'seuwurd rruch oj'jurisdiction from the land ter-
ritory of the respective coaçtal States. ln the practice of international
tribunals the logical outcome has been the reference to the overall
"geographical and legal frarnework" of a case for the purpose of

determining the "primary boundary", which, subject to the removal of
distortions causcd by particular features, produces "a generally equit-
able delimitation as betweenthe Parries".
166. In seeking a primary boundary which gives a "generally equit-
able delirnitation", certain general lines of policy are applicable. In the
first place, there is no room for a radical policy of equality of States in
the form of a reformation - a refashioning - of geogaphy.' The
function of the concept of equality is related to the actual geography of
the region. Within that actual geographical framework, the delimitation
process involves seeking an approximate equolity oj'relarionship be-
tween the respective coasts and the areas of continental shelf dividing

the toasts.'
167. This "approximate equalityV4or "balance of geographical cir-
cumstance~"~ has no connection with proportionality as a djstinct
factor, and is merely a reflection of the broad geographical framework.
In the Anglo-French Conrineninl Shelj Arbirrutiori this balance took
dikrent forms. In the case of the English Channel, leaving aside the
Channel Islands region, the balance resiiltedfrom the relationship of
opposite coasts,' the unity and continuity of the regi~n,~ and the
equality of the coastlines in relation to the continental shelf.' In the
case of the Atlantic region, the Court found sufficient elements of
balance in the lateral relation of the two attenuated maritime frontages

inspite of the existence of certain differen~es.~
168. There is no indication that the Court of Arbitratian considered
that the equality of lengths of coastlines was a necessary condition in al1
cases for the existence of "a balance of geographical circumstances",

' Anglu-F~.rtitIiArbitiolDecisionof 30 June1977.paras.lof-1 13.Seiurtheihid.,
paras. 181-183. 196.199-201.
Ihid.. paras. 101; 195.
' Ihid, para. 181-182, 196.
" Ibid., par181.
' Ibid.. para. 183.
" Ibid., paras. 103.181-182.
Vbid., paras. 182-183. 196. 201.
Ibid., paras.232-248. [87-881 REPLY OF MALTA 205

and there is no justification for the inferenceto this effet in the Ljbyan
Counter-Memorial. '
169. It is clear that the balanof geographical circumstances which
produces a rnedian line as a "generally equitable" delimitation willoften
consistof situations in which the opposite States .havecoasts which are
not equal in length. In thAnglo-French Arbitration the abutting coasts
which were the basis of delimitation in the Atlantic region were both
relativelylimited in extent. Moreover, their actual extent was far from

equal relative to each other- the Cornish Peninsula is very attenuated,
and the Scilly Islands even more so? yet the primary delimitation
between the English and French coasts was stilan equidistanc~ line.
Furthermore, it is recorded in theDecision that as between the Channel
Islands and the French coast the Parties had agreed upon a rnedian line
as the boundary.'
170. In the present case, the balance of geographical circumstances
must lead to the equality ofseaward reach ofthe opposite coasts of the
Parties. In the Libyan argument this equality of seaward reach is
rejected absolutely.

171. The Libyan claims in the present case, whether based upon
natural prolongation or the ratio of the difference between coastal
lengths, would produce a resuli which would reduce Malta's appur-
tenant shelf area to a very modest enclave.4 It is illuminating to
consider the link between the rules of entitlement and the policy of
delimitation as between opposite or adjacent States:and in making such
an inqirirythe extremejorm oj'the Libyan claimsis to be borne inmind.
172. If an island State exists in mid-ocean or in any other situation
which does not involve issues of delimitation of shelf areas with
neighbouring States, the question of appurtenance or entitlement is

obviously regulated by reference to the principles to be found in the
Law of the Sea Convention. In consequence, the coastal State would
have exclusive rights over submarint areas siretching not less than200
miles, in accordance with the distance principle.
173. In the case of an island State which abuts upon the same
continental shelf as a "long coast" State, the normal outcome, well
evidenced by State practice, is a median Iine.The median line may be
modified to avoid distortions caiised by local irregularities but there is,
as a matter of principle, no weighting in favour of the "long coast"
State. This is the outcome when the island State presents a long coast
to the mainland State, as in the case of the United Kingdom and
France. It is equally the outcome when the island State does not have a

P. 89,para4.28;pp. 153-15paras.7.1G7.12.
2Sec Map No 3on page 88.
Decisionof30 lune1977,para.22.
@ Sec Map 9 of the LibMcmoriaL206 CONTINENTAL SHELF 1891

long coast, as in the case of Bahrain and Saudi Arabia.qhe same
result also appezirs in delimitations betweea "long coast" States and
peninsula States, as in the case of Qatar-IranZ and Oman-Iran.3

174. In the case of an islànd State (or a peninsula State)abutting on
the same continental shelf as a "long coast" State, there is no reason
why the normal solution should be excluded when the seabed dividing
the two opposiie States is extensive - of the order of 100 miles
(Bahrain-han),4 or 180 miles (Malta-Libya) or 400 miles (India-
M~tldives).~There is no evidence from the practice of States and no

consideration of principle which would suggest that the "long coast"
State in such delimitations should be given a boundary line weighted in
its favour.
175. The fact is that the question of entirlement and the issue of
delimitation are connected, and this is logical as the business of
delimitation is related to the legal basis of title. An island State near a
long coast State in a semi-enclosed sea area, such as the Gulf, is not

placed under a legal disability as a conseque~ice.
176. In conclusion it is to3be recalled that, when islands are to some
extent discounted for delimitation purposes, such discounting is not
based on consideration of the length ofcoasts. The principal reasons for
discounting islands recognised in the jurisprudence are two:

(a) that they are wholly detached from the mainland of the State of
which they form part and thus lie on the wrong side of the primary
boundary indicated by the geographical frame~ork;~

(b) that the islands, though geographically constituting an extension
of the mainland of the State of which they are part, have a location
which deflectsthe primary boundary further than would the baseline of
the mainland.'

177. It is noteworthy that eüen in the case ofdepelident island located
close to the mainland of another Siare, the delimitation which results
does not involve the kind of discounting for which Libya argues. The
delimitation agreed in principle between France and the Channel
Islands is a median line.8Similarly, delimitations between Norway and

the United Kingdom (Shetland Islands), India and Indonesia, India
(Nicobar Islands) and Thailand, and Australia and France (New
Caledonia), did not reduce the weighting givento groups of dependent
island~.~

LibyanCounier-Memorial,Annexof DelimitationAgreements, Annex5.
2 Ibid., Annex 21.
3 Ibid.Annex 40.
Maltese Memorial,ReducedMap 2 atp. 63. See also Map1of this Reply.
AngleFrench Arbirrurion,Decision of 30 June 1977, paras.1196-201.
Ibid.,paras. 24S254SeealsotheJudgmentin the Tunisia-Liby case, I.C.J.Repnrrs,
1982,p.63,para.79;pp. 88-89. paras.126129; p91,para. 131.
6 Anglo-FrenchArbitrution,Decision,para.22.
MalteseMemorial.Annexes50,51,53and 54and relativeReduceMapsatpp.81,82,85
and87respectively.[go1 REPLI'OF MALTA 207

178. The considerable weight of experience in matters of delimit-
ation. both in terms of jurisprudence and the practice of States,
indicates that in principleal1coasts count more or lessequally in terms
of seaward extension ofjurisdiction. This is true of the North Sru cases,
the Angk-French Coniinenraf Slielj'Arbirrtirionand the Tunisi-Libju
case. Such an assessment is not necessarily related to a particular
method of delimitation. It reflects tlie essence or continental shelf law:
the coasts of the State generate rights over submarine areas and. at

least as a presumption, this process has a more or less uniform eflect.
The political and security aspects of coastlines are not of variable
significance in legal terms.
179. It follows frorn these premises that the prirnary boundüry
selected in accordance with equitüble principles always aims, however
approximately, at an equal attribution of shelf areas tocoastal States. It
follows also that any modificiition or adjustment of the primary
boundary on account of local irregularaties would be limited in scale
and would not be radical in result. The process of adjustment can only
apply on the margins of the basically equal relationship of the coastat
States. The scale of the modification of the primary boundary as
determined by the major geographical features is always limited, and
this isevidenced by the existing jurisprudence.

180. The Libyan position as expounded both in the Memorial and
the Counter-Mernorial thus suffers from an all-pervading weakness,
since the Libyan claims totaily ignore the concept of equal entitlement
in ierms of seaward reach. Boththe Libyan theses - the one based upon
physicalnatural prolongation, theother based upon the ratio ofthe lengths
ofcoastlines -cal] Fora delimitation marked by radical inequality and an
arbitrary notion of apportionment.

181. As Malta has already had occasion to point out,' the Libyan
pleadings employ proportionality as a prirnary source of title and as an
independent source of rights. This application is contrary to legal
principle and, if it were to be given any currency, it would transform the

legal and political significanceof coastal geography. The settlement of
disputes concerning maritime delimitation normally involves nego-
tiation.On the Libyan view of the law, the variables in any negotiation
would be so greatly increased that the settlement of disputes by
negotiation would be made much more difficult to achieve.

' Maltese Counter-Mernoriap. 153para.321.208 CONTINENTAL SHELF 1911

6. THES~GNIFICAN OF THE DISTINCTIO BNETWEEN OPPOSIT END
ADJACEN STTATES

182.In the tight of the considerations set forth above,it is now
possible to appreciate the real significance of the distinction between
opposite and adjacent States. The distinction is not always applicable in
a neat way and some geographical situations may be more or less
mixed. None the less the distinction forrns an important aspect of any
practical exercise in seeking an equitable result; and this is true whether
or not the equidistance method of delimitation isin issue.

183. The distinction between opposite and adjacent States forms a
pari of the procedure by which a tribunal discovers a basis of "appro-
ximate equ+ity"' and a "balance of geographical circum~tances."~
Such a balance does not involve distributive justice but should reflect
the rrlationsliips of the principal sectors of abutting coasts. It is not
concerned with spatial distribution according to a dogmatic formula
such as the ratio of the lengths of coastlines.
184. The "balance of geographical circurnstances" should satisfy
three conditions set by thelegal framework:

(a) As a principle of appurtenance, or entitlement, al1mainlands are
to be given fullelTecin terrns oa presumed equality of seaward reach
of sovereign rights from the land territory over adjacent submarine
areas.
(b) In the'process of delimitation, actually abutting coasts of main-
lands are to be given fulleffect.
(c) The principle of non-encroachment is to be observed.

185. The normal case of opposite-related abutting coasts will pro-
duce a balance of geographical circumstances based upon the concept
of equidistance: since a median line is the equitable result of this
balance in appropriate circumstances and not an independent or
"obligatory" rule. In the case of"adjacentV States the maintenance of a

geographical balance cannot depend on the unqualified use of an
equidistance line, precisely because the principle of non-encroachrnent
and the concept of equality of seaward reach of rights over adjacent
submarine areas would be placed in jeopardy. This is, of course,
iamiliar to the Court, buitprovides a useful preface to observations on
the Libyan reasoning in this case. The Libyan position is that Malta's
reliance upon equidistance is dogmatic and that Malta ignores actual
coastal ge~graphy.~This is the reverse of the truth. Malta relies upon
the relationships of reul coasls- not abstract calculations based on
ratios of lengths - and on the balance of actual geographical
circumstances.

186. ~he &incipleof balance and ihe principle of non-encroachment
cal1 for different techniques of adjustment in different geographical

'Aiiyl+French Arbitrarion.para. 181.
* Ibid.. para. 183.
LibyanCounter-Memorial,Chapte7. [921 REPLY OF MALTA 209

situations. In the case of opposite States sorne modification of the
primary equitable delimitation rnay be necessitated by the presence of
islets or coastal irregularities. In the case of adjacent States çirnilar
modification, mutorismutandis,may be called for. Butinboth situarions
it is the approximateequality of seaward reochofsovereign righrswhich
is beingGiniained.
187. In consequence,even when the technique of modification in the
case of adjacent States involves some form of proportionality calcu-
lation, this exercise still rests upon the basic premises of non-
encroachment and equality of seaward extension; indeed,these values
are the veryraisond'être of the modification. Moreover, becausewhat is
involved is modiJicationin order to maintaina balanceof geographical
circumsrancesand an "approxirnateequality", the result cannot con-
stitute an apportionment which attributes little or no seaward exten-
sion of sovereignrights-tothe land territory ofone of the Parties. In the
present case tibya insists (wrongly in principle)that a certain form of
proportionality should be applied in a caseof opposite States. Not only

that,but Libya alsoinsists on an extremeform of proportionality claim
which falls outside the criteria of modification euenifthe presenr case
were one oJ adjacentcoasts.
188. The result of the Tunisia-Libyacase is in full accord with the
viewof the matter set iorth above. The Judgment (and especiallyPart B
of the Dispositij)' makes clear that the delimitation envisaged wasto
reflect "the general configuration of the coasts of the Parties". This
basic principle dominated the approach in both sectors of the de-
limitation carried out by the Court. In spite of the strodg elements of
adjacency in the coastal relationships, the Court indicated a delimi-
tation which allowed a generally equal seaward extension to both
coasts, and it may be noted that this giving of full faith and credit to
coastal geography was not in fact related to the application of the
equidistance method.
189. In the circumstances of laterally related coasts of adjacent
States, where the coasts have a point of departure at the terminus of a
land boundary, the reference to the lengths of coastal frontsas part of
the application of the factorof proportionality is necessarypeciselj in

order to produce a balance in the seaward extensionof righrs ouer
submarineareas.However,the application ofsuch a method to opposite
coasts has the effect,not of producing an approximate equality but of
causing a severe imbalance: and this is because in a simple case of op-
posite coasts the length of the respectivecoastlinescannot play a rôle in
avoiding convergence and undue encroachment. Allowing for the dif-
ference in geographical circumstances, the use of a caiculation based
on the ratio of lengths of coastlines produces a qualitatively diflerent
and totally inequitable result in the present case, whereas in the
Tunisia-Lib~acase the delimitation adduceà by the Court was verysen-

' I.C.J. Repor1982.p.93.
Ibid.,91,para.131. 210 CONTINENTAL SHELF [93-941

sitive to the question of non-encroachrnent and was thus concerned
not to give"excessiveweight" to the Kerkennahs.'

7. DELIM~TAT~ MOUN? RELAT TO THE COASTA SCTUALL AYBUTTIN GN

THE CONTINENTS AHLELF

190. The basis of titl- as the Libyan Counter-Memorial recognises2
- is "the geographic correlation between coast and subrnerged areas OB
the coast". This relationship reflects both the principle of distance and
the concept of adjacency. Unless there are special circumstancesjustify-
ing some technique of abatement, the normal legal implication of a

coast is an equality of seaward reach, both as between different sectors
of the sarne coast and as between the coasts of opposite and adjacent
States abutting upon the same continental shelf.
191. Unless geography - the actualcoasts abutting on the shelfareas
dividing the.Parties- is to beignored, delimitation involves the use of
appropriate basepoints. The use of basepoints is the simple procedure
by which the generation of shelf rights is reflected by use of normal

survey and hydrographic techniques. When a method of delimitation
other than equidistance is to be used, other techniques with a similar
objectivemay be employed, including the construction of coastal fronts.
The use of such techniques always involves the reflection of geographi-
cal tacts for legal purposes, a very familiar aspect of the law of the sea.
192. As a matter of logic and on the basis of the jurisprudence,itis
necessary to determine (a) which are the actually abutting coasts in a.
given case; and (b) which count as mainland coasts. The rôles of the

Cornish peninsula and the Isles of Scilly in the AngbFrench Con-
tinentalShelf'Arbitrarionare of relevance in this context. Cornwall and
the Scillylsles were coasts "actually abutting on the continental shelf"
of theregi~n,~and the latter counted as an extension of the landmass-
the rnainland - of the United Kingdom.*
193. Malta is an island State with a political status equal to that of
other coastal States and is therefore in legal terms a mainland. Its

coasts in their southerly aspects, abut upon the shelf areas which divide
the Parties. By reason of lheir shape and location - which are no1
unusual as a matter of the law of delimitation - the Maltese group
generates a normal seaward reach or radial projection of sovereign
rights over adjacentsubmarine areas. Since it is coasts "in piace", so to
speak, and not abstract lengths of coasts, which generate such rights, it
is clear that, even if Malta had a much longer coast, this would have
little or no effect on the general outcome so far as generation of shelf

@ rights is concerned. This is shown very wellby Diagram A contained in
the Libyan Counter-Mern~rial.~

1Ibid,pp.88-89para.128and seethe Disposip.93,B(2)and (3).
2P. 57,para. 7.18.
'Decisionpara248.
Ibillparas. 248-251. See aMap No. 3 at pag88.
Oppositep. 160and reproducein this Rcply at page94. 195-961 REPLY OF MALTA 211

@ 194. The Libyan Counter-Mernorial' considers that its Diagram A
proves that equidistance has a "distorting effect". In fact the diagram
simply shows the way geography works, unless it is to be refashioned.It
isgeography, coasts in relation to other leatures, including location and
distance, and not length of coasts as such, which is decisive. The
significance of coasts and coastal lengths must be measured relative to
something else;and in the case of opposite coasts length as the factor of
measurement is less significant than it is in other geographical

circumstances.
195. These considerations can be weighed at the level of practical
experience by a perusal of boundaries in the Gulf as indicatedin Liniits
in the Sem2 The delimitations involving Bahrain - Saudi Arabia,
Bahrain - Iran, Qatar - Iran, and Oman - Iran, al1 contradict the
Libyan viewon lengths of coasts. Indeed, the whole pattern of maritime
boundaries illustrates the equality of seaward extension ofjurisdiction
which isthe legal reflection of real coasts. This type of equality falls
within the tradition of territorial sea and other maritime extensions as
zones of uniform breadth appurtenant to the coasts of States. In the
Gulf the position of Bahrain illustrates the equality of seaward reach

which accords with the framework of the law and equity in continental
shelfdelimitation.The areas appurtenant to Bahrain as it faces Iran are
not of thesame extent as those appurtenant to Bahrain as it facesSaudi
Arabia: but within the opposite relationships Iran-Bahrain and Saudi
Arabia-Bahrain there isa murkedequality of seaward reach.

196.The drawbacks to the Libyan position on the significance of

coastal lengths can be illustrated by a hypothetical situation as in
@ Figure A.' A number of short coast States abut upon the same shelf as
a long coast State. According to Libyan reasoning, the length of the
coast of State1 would operate in each case against States IInopposite
State 1, and the result would be a "proportionality" line of obvious
inequity. Libyan logic about the length of coasts as suc- the "piece of
string" approach - does not allow for cornmon sense, and contains no
qualifications.
197. Ifitbe accepted that in the situation shown in Figure A the
equitable solution,reflecting the balance of geographical circurnstances,
is a delimitation based upon a median line, can it be said that asingle

@ shortcoast StateII (asin Figure B)'opposite State1shouldaccept less
than equidistance? First of all, it may be asked what does State 1"lose"

' Pp.160-161, para7.24-7.26.
' UnitedStates Departmeniof State,Oof theGeographer,BureaofIntelligence
and Rcsearch.Limirin the SeoNo. 94, "ContinentalShelfBoundaries:The Persian
Gulf":alsoreproducedin this Reply as Map No 2 at page 82.
Atp.96.
Ibid. 212 CONTINENTAL SHELF 1971

by the change of circumstances? The answer rnust be little or nothing.
As a consequence of the equidistance rnethod (as illustrated by

@ Diagram A in the Libyan Counter-Mernorial) State 1 "keeps" al1 the
sector below the median line. State 11 "gains" the shaded areas above
the median line but not ut the expense oJ' Stute 1. The balance of
geographical circumstances has not changed sufficientlyto depart from
the median line as the equitable solution.
198. This exercise provides the "length of coastlines" argument with
a decent burial and relates the issue of delimitation to the political
realities of coastal State relationships in semi-enclosed seas. The exist-
ing patterns of boundary settlement in the Baltic Sea and the Gulfare
@ related to Figure B and not to the Libyan approach the result of which
ISdeplcted in Figure A.

199. The Libyan contentions in the present case present a major
paradox.This consists in the fact that the superficial insistence upon.the
importance of lengths of coasts is accompanied by Submissions and
arguments claiming large areas of seabed adjacent to Malta on the
basis of legal theses - physical natural prolongation and the pro-

portionality doctrine based upon a formula (the ratio of lengths of
coasts)- which have no connection with the actual coasts of Malta and
Libya.
200. The Libyan version of the significance of coastal lengths is
substantially inconsistent with the following important principles:
(a) The relation of coasts to other features is of paramount impor-
tance, and especially the relation to adjacent areas of seabed and the
relation between the coasts of opposite or adjacent neighbouring States.
(b) The distance principle, and adjacency of seabed tohe territory of
the coastal State as the basis of legal title to shelf areas, indicate a
presumed equality of seaward extension ofjurisdiction.
(c) Coasts form part of the broad framework within which a Court
rnust seek a balance of geographical circumstances, but equality of the

lengths of coastlines isot a necessary condition for the existence ol a
"balance of geographical circumstances".
(d) The rules ol entitlement to continental shelf areas of islands and
island States arelogically connected with the principles of delimitation
as between neighbouring States: and whether an island State is located
in mid-Ocean, or is placed in a semi-enclosed sea with opposite or
adjacent States abutting on the same shelf area, there is no evidence of
a legal disability in the context of delimitation as against 'longoast'
States.
(e) Even when islands (not island States) are to be discounted to
some degree, such discounting is not based on consideration of the
length of coasts.
(f) The distinction between opposite and adjacent coasts forms a
part of the discovery of a "balance of geographical circurnstances" as a[981 REPLY OF MALTA 213

part of the process of delimitation; and in the normal case of opposite

coasts a median line isthe equitable result of this balance.
(g) The principle of non-encroachment which may cal1 for modifi-
cation of the primary equitable delimitation is compatible with the
approxirnate equality of seaward extension of sovereign rights which is
in effect being rnaintained by means of such modification: the raison
(rgtre of the modification is to avoid tendencies to enclaving and
encroachment.
(h) The Libyan invocation of proportionality on the basis of the
ratio of the lengths of coasts in the wrong geographical context
produces the very type of encroachment and geographical irnbalance
which equitable principles are designed to avoid.
(i) The Libyan claims are unrelated to existing patterns of the
practice of States and ignore the political realities of coastal re-
lationships in semi-enclosed seas such as rhe Baltic, the Mediterranean

and the Gulf.
(j) The geographical circumstances which produce the framework
within which delimitation takes place consist of the arrangement of real
coasts. The location and shape of such'coasts, as they actually abut
upon the areas of shelf in dispute, are significant in generatirig shelf
rights, and "length" of coasts is only relevant in sofur us ifis on11one
elemenr in tIir numbrr oj'elements whichconsriturrrhe conjigurutionoj'
the Parties' cousrs.As a consequence, even if Malla had a largerextenr
and a longer coastline, the result in terms of seaward extension of
jurisdiction over the shelf areas in dispute would remain unairected. PART V

THE RÔLE OF PROPORTIONALITY :
LIBYAN MISREPRESENTATIONSCORRECTED

CHAPTER XII

LIBYA'S MISREPRESENTATION OF MALTA'S POSITION
CONCERNING THE ROLE OF PROPORTIONALITY

201. The treatment of the issue of proportionality in the Libyan
Counter-Memorial is characterised by persistent failure accurately to
represent Malta's position concerning the rôle of proportionality. Thus
the assertion is made that "the rejection of proportionality is crucial to
the Maltese case",' and it is suggested that Malta has attempted "to
discredit" proporti~nality.~These statements are incorrect and Malta's
views on the subject are given clear expression in its Counter-

Memoria1.j The Maltese view is that proportionality in the particular
modeof the useofthe ratio of the lengthsof coastlinesis inapplicaine
the circumstances of the present case.On the other hand, proportion-
ality remains as a criterion for evaluating the equities of certain
geographical situations. Certainly it has noriori rôle in delimitation
cases and the nature of its rôle must dependon the circurnstances of
each case.4
202. A further ,stage of Libyan misrepresentation of Malta's views
takes the form of assertions that Malta's use of a trapezium figureas a
method of expounding the relationships of the coasts of the Parties is
"another form of proportionalitytest".j Such assertions have no basis.
it is certainly true that the trapezium figure may assist in.assessing
the equitable nature of a delimitationased upon equidistance but it

cannot be said that any means of assessing the appropriateness of a
meihod of delimitation is-ex hypothesia form of "proportionality test".
203. In Malta's Counter-Memoria16 the trapezium figure is used
again to show that the median line satisfies thegeneral test of equity in
the present case. After al1 is said and done the figure is a simple
representation of coastal relationships and the function of distance.
shows how the effectof the equidistance method is always to reflectthe
eqwalseaward reach of jurisdiction from the coasts of the two opposite
States, whatever the distance between thern.
--
' LibyanCountcr-Mernori,.142para.6.10.
' Pari III.ChapterIV, pp. 98-123.
Ibid.,pp. 105-107,paras.237-242.
LibyanCounter-Mernorialp.p. 149-150,paras.6.33-6.37;ppparas7.33-
7.39.
Pp.107-108,paras.244-(andFigure5atp. 109). Il021 REPLY OF MALTA 215

204. Yet another misrepresentation of Malta's views occurs in the
Libyan Counter-Memorial, when it is suggested that Malta considers
that coastal length is irrelevant tout court.' This suggestion is very
surprising, since the trapezium figure shows exactly how the equidis-
tance line relates both to seaward or distance relationships and to the
Westto east extension of coasts.
205. In general' the Libyan Counter-Memorial makes very he,avy
weather of the trapezium. Essentially the figure shows geographical

relationships. Its sides consist of linesdrawn so as to encompass those
submarine areas lying off one or other of the coasts of two opposite
States, one with a short and one with a long coast. An equidistance line
is included and the result of this simple demonstration was given a
name for reference purposes. The trapezium reflects geographical re-
alities in the most straightfmwardfashion.
206. In seeking to attack the trapezium figure, the LibyanCounter-
Mernorial adopts a variety of tactics which are based upon irrelevance

and illogicality. These tactics are examplified by the assertion that,
within the trapezium, Malta's share of the shelf is "determined by the
length of the Libyan coast, not Malta'sown ~oast".~This is, of course,
nonsensical.The length of the median line is governed by the lengths of
both.coasts and also by the distance between them. The diagram
@ (Figure 5) provided in the Maltese Counter-Memoria13 illustrates
the. interaction of the various factors. Indeed, the proposition that
Malta's share is determined by one coast - the Libyan - is con-
tradicted elsewhere in the Libyan Counter-Mern~rial,~ where it is

stated that ."under most normal circumstances the length of any
median line is directly dependent on the length of the two coasts con-
trolling it".
207. Another Libyan criticism of the trapezii~mis that "the exercise
has nothing to do with the actual coastlines of the partie^".^ This
assertion is not logicallycompelling,for the trapezium is based, in two
of its three critical elements, precisely upon the coasts of the opposite
States. Ir simply will not do to say that the short coast of Matta is

"largely irrelevant to the e~ercise".~1Nor is there justification for the
cornplaint that "as to the long, Libyan coast, no explanation is offered
by Malta to show why this enormous length of coast is relevant to this
delimitati~n".~'Thereis a certain difficultyin explaining what may seern
obvious. The coasts included were those which were in legal and
geographical terms "opposite". In the language of the Judgment of the
Court in the Tunisia-Libja case "the area in dispute, where one claim

'LibyanCountcr-Mernorialp. p.142-143paras.6.10-6.15.
lbid.p. 163,para.7.37and seealso para. 7.38.
At p. 109.
LibyanCounter-Mcmorial ,.143, para.6.15.
"bid., p. 163.para. 7.39.
Ibid.
' Ibid.(atp.164).216 CONTINENTAL SHELF [Io31

encroacheson the other,is that partof this whole areawhichcan be
consideredas lying both off the Libyancoast and off the Tunisian
coast".'Thereis no mysteryto be explainedin this respect.

' 1.C.J.Repuris1982,p. 61,para.74.Seealsothe AngleFrench Arbitraiion,Dccision
of 30Junc 1977,para. 100. CHAPTER XII1

THE LEGAL FRAMEWORK

208. The Libyan use of the factor of proportionality as disclosed in
the Counter-Mernorial continues to be deeply flawed and incompatible
with legal principle. Libya relies upon a particular version of pro-
portionality as the dogrnatic basis for what is in effect a delimitation.
This delimitation stems directly from proportionality and thus, con-
trary to legal principle, this factor isinvoked to provide an independent

source of rights to areas of continental shelf, rather than "as a criterion
or factor relevant in evaluatinl: the equities of certain geographical
situations".'
209. In the second place the Libyan use of proportionality disregards
that part of the Iegal framework of delimitation which consists of the
principles which determine the basis of the entitlement of the coastal
State to adjacent submarine areas. The Libyan claim to submarine
areas as close as fifteen miles to the coasts of Malta contradicts the
Iegal basis of title to continental shelf as explained in the jurisprudence

of the Co~rt.~

210. The focus upon the length of coasts as an abstract value or
factor in the Libyan argument is deeply flawed by conceptual error. In
Part IV, Chapter XI of this Reply, Malta has examined the significance
of lengths ofcoasts in a careful perspective of law and policy. In Libyan
methodology the issue of coastal relationships -- in other words, the

geographical circumstances of the case - is reduced to the question of
lengths of coasts, and the issue of what is an equitable result is reduced
to a single operation involving a certain type of proportionality test. In
this way the question of what is equitable is transposed to the formula
based on the differences of lengths of coasts, The real geographical
framework of the case is disregarded, and the factor of proportionality
is not properly related to, but takes precedence over, the application of
the ensemble of equitable principles and relevant circumstances.

Anglu-FreiicArbirratioDecisionor30 June1977,para. 101.
Seepara 136158 above. CONTINENTAL SHELF Il051

211. In Part IV of the Reply, Malta has already had occasion to
point out that the principal basis for seeking an equitable solution is
the actual geographical framework and, within this framework, the
"balance of geographical circurnstances".' This balance has no con-
nection with proportionality as an independent factor, but is a re-
flection of the geographical frarnework. The idea behind the concept of
balance is an approximate equality and not an exercise in geopolitical
"distributive justice". What is aimed at is the avoidance of a monopoly
or a preponderance in relation to the area in dispute as causes of
inequity. At the same time, States are presumed to have a dominant
interest in adjacent submarine areas and an equality of seaward reach of

jurisdiction.
212. Inthe circumstances of the present case the Libyan claim would
establish a very marked preponderance in favour oc one State in
submarine areas adjacent to the coasts of the other State. The Libyan
approach involves the use of a proportionality argument not in order
to avoid but in order to produce preponderance and inequity. The
absurd result, which is out of line with the practice of States in
comparable situations in the Gulf and elsewhere, is a consequence in
part of using a proportionality principle asan independent source of
rights and in part of using a form of "proportionality test" which is

inappropriate to the case of opposite coasts.
4. THEIMPORTAN OF EHE RELATIONS OFIP OASTS

213. In the evaluation of the balance of geographical circurnstances,
the length of the respective coasts but one of the various geographical
circumstances relevant to the delimitation and it is therelutionshipof
coasts which is all-important. There is no evidence to support the view
that as a matter of principle an island State opposite a long Coast State
in a serni-enclosed sea is placed under a legal disability in the context of
delimitation ofshelf areas: and there is no evidence that the existence of
such a disability is contingent upon the presence or absence of an
equality of lengthof coastlines. These issues have been examined more
fully in Part IV, Chapter XI of this Reply, where, intuli~t,iis shown
that the Libyan position is strongly rebutted by the practice of States.

214. The essence of the Libyan argument as presented in the
Counter-Mernorial consists of the following elernents-

(a) The test of proportionality appropriate in al1cases is based upon
the ratio of the difference between coastal lengths.

' Secparas.167-17above. [ 106-1081 REPLY OF MALTA 219

(b) There is no dimerencebetween "opposite" and "adjacent" States
in thisconnection.'
(c) Consequently, even if the "opposite" relationship ofcoasts in the
present case is to be accepted, the "ratio of coastal lengths" approach is
applicable as between Malta and Libya.
(d) Proportionality is a direct source of rights and a direct method of

delimitation, and not merely ii corrective to be applied after other
conditions are fulfilled.
215. The unsoundness of these positions has been demonstrated
already in this Reply and the present purpose is to point out that, even
in situations of "adjacent" coasts, the test of proportionality is not

applicable in theform whichLihya Aas udopted in the present case. The
following examples of cases of "adjacency" are fairly representative of
the type of problem which occurs in practice.

@ (i) Adjacent States on a Reyular Coast (Diagrarn A)

216. The balance of geographical circumstances in such a case is
obvious and the equitable result must consist either of an equidistance
line orof a perpendicular. There is no room for referring to the ratio of

lengths of coasts.

(ii) Conüerginy Coasts ina Gulf'Witlr u Land Boundur~Terminusut
0 the Apex (Diagram B)

217. The permutation of geographical circumstances presented in
this context is best described as involving adjacent coasts within the
vicinity of the terminus of the land boundary which become pre-

dominantly opposite away froni the apex of the gulf, There can be no
question about the appropriateness of equidistance in such circum-
stances as the normal basis Tora delimitation which refiectsthe balance
of geographical circurnstances. The practtce of States establishes the
recognition of equidistance as the equitable result in such cases.2There
is no basis for invokinga "proportionality" test based upon the ratio of
lengths of coasts.

Laterallj' Related CorrstsAhutting on u Shey ExtendingSeu\vards
(iii)
63 fiom fliCorisrs (Diagram C)

218. In the Anglo-French Continental Sher ~rhitration the Court of
Arbitration took some care in examining the relationship of the coasts
of the United Kingdom and France in the Atlantic regi~n.~Whilst the
Court stressed that the fixing of the "precise legal classification of the

See. in particular.the LibyanCounter-Mernpp.144-145, para6.17-6.24.
See thefollow~examplesArgentinü-Uruguay.Limirin~liSWS.NO.64; s in land-
Swedcn, ihid.. N16 and 56.
Decision of 3June 1977paras233.241-242.220 COhTlNENTAL SHELF II@]

Atlantic region" appeared to be "of little importance", emphasis was
placed upon the particular characteristics of the relationship. Thus the
Court accepted that "beyond the point where the coasts are geographi-
cally opposite each other, the legal situation changes to one analogous
to that of adjacent States". ln its conclusion on the question the Court
observed:

"What is important is that, in appreciating the appropriateness
of the equidistance method as a means of effecting a 'just' or
'equitable'delimitation in the Atlantic region, the Court must have
regard both to the lateral relation of the two coasts as they abut
upon the continental shelf of the region and to the great extent

seawards that this shelf extends from those coasts".'
219. In the Atlantic region the Court applied the equidistance me-
thod as the basis of an equitable solution which reflected the balance of
the geographical features of the region. The question of the effectto be
given to Ushant and the Scilly Isles was seen in terms of the rnodiJi-

catiorof the equidistance method rather than its "total reje~tion".~The
framework of the process of delimitation was thus the equidistant line
between the laterally related coasts. The Court stated the issue within
this framework:

"The problem therefore is, without disregarding Ushant and the
Scillieç,to find a method of remedying in an appropriate measure
the distorting effect on the course of the boundary of the more
westerly position of the Scillies and the disproportion which it
produces in the areas of continental shelf accruing to the French
Republic and the United Kingd~m".~

220. What is striking about the Court's whole approach to the issue
of "distortion" is that the object of the exercise was to maintain the
uppr-opriateseawcird cxrension of borh the United Kingdom and French
cousrs.The problem had norelatioi~ ro the k~eirgtlzfcousts. Thus, when
the Court adverts to "the element of 'proportionality'"," this was
considered within the context of the abatement of the "distorting
effects" of the Scillieson rhe equidistance The equidistance line
represented equity as between the mainlands of France and the United

Kingdom: and thereîore the issue of distortion was one of maintaining
the normal seaward reach of the mainlands as far as possible. The issue
of "distortion" was equated to the element of pr~portionality.~
221. In describing the rôle of equity the Court ol' Arbitration
observed:

"The appropriate method, in the opinion of the Court, is to take

Ihid, Parü-242.
2 lbid., par249; and see aiso para. 251.
J ibid.. para.248.
Ihid.,para.250.
ibid., paras. 24S251 passim.
" Ihid.,paras. 248-2pussim. [llo-1111 REPLY OF MALTA 22 1

account of the Scilly lsles as part of the coastline of the United
Kingdom but to give them Iessthan their full effectin applying the
equidistance method. Just as itis riot the function of equity in the
delimitation of the continental shelf cornpletely to rekishion geo-
graphy, so it is ülsono1 the function of equity io create ü situation
of complete equity where nature and geography have established
an inequity. Equity does not, therefore, cal1for coasts, the relation
of which to the continent;il shelf is not equal, 10 be trcatcd as hav-
ing cornpletely equal effects.What eqiiity ciills for is an appropriate
abatement of the disproporiionaie eIfects of a considerable pro-
jection on to the Atlantic continental shelf of a somewhat at-

tenuated portion of the coast of the United Kingdom."
"250. The abatement of these disproportionate effects, as pre-
viously indicated in paragraph 27, does not entail any nice calcu-
intions of proportionality in regard to the total areas of continental
shelf accruing to the Parties in the Atlanticregion. This is because,
as pointed out in paragraphs 99-101, the element of 'proportion-

ality' in the delimitation of the continental shelf does not relate to
the total partition of the area of shelf among the coastal States
concerned, its r6le being rather that of a criterion to assess the
disiorting effectsof particular geographical feütures and the extent
of the resulting inequiiy".'
222. In the Angle-French C'oniinentulShrlf'Aibirrurioii the Court
applied the facior of proporiiiinality in a rnanner which completely

contradic:~ the niodus nperuntli now sponsored by Libya. As already
pointed out the approach of the Court is based on a concept of
"distortion" which involves adjustment wirhrhr pi-ecisrobjecr oj'mciiri-
tuiriinyut1equalitj. oj'seuii~ordreach of the niainlandsoj'rhr trvuStates.
The abatemeni which was called for and effected took place within a
legal Crameworkwhich excluded a "totat partition" of the area of shelf.
The lengths of coasîlines were not relevant, and proportionality was
invoked in a form which rnaintained a balance between the coasts
concerned. In the present case Libya is seeking to use proportionality
as a means of establishing a preponderance of seawürd control over the
submarine areas which divide the Parties.

@ (jv)Threp Adjacrnr States an Concuw Cousr (Diagram D)

223. The facts of the North Sea Continental Slielj'cases involved a
situation in which three States were adjacent on a concave coast, and
where, but for the concavity of the German coast, the three States have
been given broadly equal treatment by nat~re.~The Court set aside the
equidistance method precisely because, in the circumstances of the cases
with which the Court was concerned, equidistance would produce an

Ibid.paras. 249-250.
1.C.J.Reports1969,p.49, pÿra. 91.222 CONTINENTALSHELF [II21

encroachment by the natural prolongation of the territory of one Siate
upon that of the territory of another State.'
224. It is well-known that the Judgment in its Dispositi/'includes in
the "factors" which are Io be taken into account:
"the elernent of a reasonable degree of proportionality, which a

delimitation carried out in accordance with equitable principles
ought to bring about between the extent of the continental shelf
areas appertaining to the coastal State and the length of its coast
rneasured in the general direction of the coastline, account being
taken for this piirpose of the effects, actual or prospective, of any
other continental shelf delimitations between adjacent States in the
sarne region".'
225. The North Seu cases are of considerable interest, for here wasa
geographical situation in which the Court invoked proportionality in a
form apparently sirnilar to the version invoked by Libya in the present
case, and yet there are considerable points of distinction to be noted.
In the first place. the geographical situations are totally dinérent.
Secondly, the Libyan mode of proportionality is different in substance.

In the North Seucases proportionality had a low normative status as a
"factor to be taken into account" and was not classified in the Dispositif'
as one of the "principles and rules" applicable to the delirnitation. In
the present case Libya invokes proportionality as an independent and
primary source of rights.
226. The major point of interest for present purposes lies in the fact
that the reasons which moved the Court to set aside equidistance in the
North Sea cases are fundamentally incompatible with the arguments
advanced by Libya in the present dispute. The Court was using the
legal idiom of natural prolongation to express a certain practical view.
The principle of non-encroachrnent - which appears in the Disposirv'as
the primary "rule or principle" - involved recognition of the equality

of seaward reach of coastal States and is based upon the concept
of natural prolongation as the basis of title to adjacent shelf areas.
The reasoning of the Court favours maintaining in substance the
equal significance of coasts and the reference to proportionality in the
Judgment is to he understood in this context.
227. The reasoning and philosophy of the Judgment in the North Sea
cases is therefore inimical to the Libyan clairn in the present case. The
Court explains with great care that the intention was not to refashion
nature but to reduce inequity "in a theoretical situation of equality
within the same order". No major reordering of stiares of shelf was
envisageda3
228. The Judgment in the North Seu cases contradicts the Libyan
argument based upon proportionality precisely because it prefers

'Ibid., p. 31, para.p. 46para.84;p.49,para.91. Sec also the Anglo-French
Arbirration, Decision of 30 June 1977, para.99.
2I.C.J. Reports, 1969,p. 54, D(3).
'Ibidp ..,49, para.91. [113-1141 REPLY OF MALTA 223

equity, whilst the Libyan position seeks to establish inequality and a

preponderance of legal influence for the coasts of one State. The
justification Torthis view of the reasoning in theNovtli Sru cases can be
found in the subsequent practiçe of the Parties to those cases. The
delimitations which were negotiated by the German Federal Republicl
on the basisof the principles laid down by the Court indicate that euen
i~tu sitr~utionufudjuc~tit States on u cuncaçe cousi the efTect OC the
elemeni of proportionality was marginal rather than radical: and this

was the result even "in a theoretical situation of equality within the
same order". In the geographical circumstances of the present case no
such equality within the same order can be said to exist.

(v) Adjucent Srurrswitli Co~il;eryi,zyCorrsts in un As~~nimc~riic Gulu'
~'itlu Lund Bouridai-),Trr-minlrsLocnted ut onp Sider,$tlir Guv'

(Diagram E)

229. The geographical circumstances envisaged here are of the type
presented in the Tunisiu-Libyucase. ltwill be recailed that in this case
the Court üpplied 'the test of proportionality as an aspect of equity'.2
However. the approach of the Court was very different from the Libyan
rnodlis operuridipresented in the pleadings in this case. In the Tlinisic~

Lihju case the geographical circumstances were quite unlike those of
the present dispute, and this dinerence is so marked that caution is
cülled for in making reference to that decision. Nonetheless the general
approach of the Court to the "test" of proportionülity can be saîely
cornpared to that of Libya in the present case' and such a cornparison
discloses a critical difference. ~he Court used proportionaliiy as a
"tesr"in relation to a delimitation which had already been constituted

in accordance with various relevant circurnstances and. in particular,
"the general configuration of the coasts of the parties". "the marked
change in direction of the Tunisian coastline between Ras Ajdir and
Ras Kaboudia". "the existence and position of the Kerkennah Islands".
"the land frontier, and the conduct of the partie^".^
230. A further difference in approach consists in the fact that the

Court did not employ proportionnlity as an independent source of
rights, as Libya now seeks to do. The Court stated emphatically that
"the corist of the territory of the State is the decisive factor for title to
submarine areas adjacent to it".4 The primary objects of the Court's
approach to delimitation were to nvoid any undue encroachrnent in
respect of shelf areas adjacent to the Libyan coast as a result of changes
in the configuration of the Tunisian ~oast.~and to give proper weight

to the conduct of the parties and the de jucto maritime limit. In

Sr?.SNo. 10U(Revised).at p1622.icBiireauofIntelligenceanResearch.Liniiriithu
- I.C.JRrpriiis1982.p. 91. para130-131; p. 93B(5).
"hid.. pp. 82-89.paras.114-129p. '93.Bil). (2).and 14).
''Ihid.p. 61. para73.
' Ihid.pp. 86-89.paras.121-129.contrast, the Libyan position in the present case involves using pro-
portionality not as a test of inequity of a primary delimitation which
has been designed on grounds other than proportionality in order to
avoid encroachment, but as the prirnary basis for a delimitation which
is characterised by a major inequality of seaward extension and a
massive encroachment on submarine areas adjacent to the coasts of
Malta.

231. The factor of proportionality is applicable within a frarnework
of legal principle of which the key elements are as follows:

(u) The delimitation to be effected must reflect the legal basis of title,
which is the coast of the territory of the State and the geographic
correlation between coast and subrnerged areas off the coast.
(h) In consequence, the concepts of adjacency and distance, which are
correlatives of the legal basis of title. justify an equality of seaward
extension of sovereign rights in respect of coasts abutting upon the
subrnarine areas in dispute.
(c) The criierion or factor of proportionality is a general test of the
equity of a delimitation effected on other bases and is not an inde-

pendeni source of rights.
(d) The geographical circumstances as a whole form the primary guide
to an equitable result.
(e) The actual relationship of coasts and not coaslal lengths in the
abstract are to be taken into account.
(j') In the case of opposite coasts the presurnption of the equality of
seüward extension of sovereign rights is at least as strong as in other
gcographical situations.
(y) Even when sorne adjustment or modification of the primary boun-
dary indicated hy the balance of geographical circumstances isjustified
in principle, such adjustment cannot be so radical in result as to create
a preponderance of influence for the coasts of one State in the area in
dispute.

232. The Libyan arguments relating to proportionality are based on
fundamental misconceptions of principle and thus disregard the ele-
ments of the legal framework set forth above. The eccentricity of the
Libyan position is demonstrated by reference to the practice of States
which reveals that (in terrns of seaward reach) short coast States suffer
no legal disability as against long Coast States in the context of
delimitation.' A clear illustration of this is provided by the delimitation

between lndia and the Maldives established by agreement in 1976.
According to The Geographer of the United States Department of State.

' For thepracticeof States generallysee the Maltese Mernorial,Chapier VII,sections
3-5:and Counier-Mernorial,pp. 111-123, paras.252-257.Secalso An4 of thReply.il161 REPLY OF MALTA 225

"the boundary closely approxirnates an equidislanr tine".' This align-
ment thus gives equal weight to the continental landmass of southern
lndia and the northern aspect of an elongated chain of atolls. The
delimitation involves a "maritime boundary" which delimits "sovereign

rights and exclusive jurisdiction over the continental shelf and the
exclusive economic zone".' Similarly, the pattern of delimitation in the
Gulf, involvingIran and Slates vpposite, gives no support whatsoever
to the Libyan thesis of the preponderant effectsof long coasts.
233. In contrast to the arbitrary and extravagant claim of Libya,
which is based directly upon proportionality, though not upon the legal
conception of this factor, the position of Malta is entirely compatible

with the key elements of the framework of legal principle set forth
above. This compatibility with the legal framework is arnply confirmed
by the practice of States in comparable situations, and the importance
of this confirmation is no doubt the reason for Libya's abhorrence of
the relevant practice of States. The legal significanceof this practice will
be examined in Part VI of this Reply.

' Limirs in the SeaNo. 78. p7:Maltese Mernorial,p.62. 65-66.
' 1bW..p. 3:Article 1V. PART VI

STATE PRACTICE:ITS RÔLE IN CONFIRMING
THE VALIDITY OF MALTA'S POSITION

CHAPTER XIV

CRITICISM OF THE MODUS OPERANDI OF THE LIBYAN
COUNTER-MEMORIAL

234. In its wiitten pleadings Malta has made appropriate reference
to State practice. The substantial evidence thus submitted will, it is
believed, be of assistance to the Court, more especially since the
application of legalrinciples should be assessed in terms of available
experience. The Libyan Memorial, it rnay be recalled, avoided any
reference to State practice.' The Libyan Counter-Mernorial has be-

latedly turned to the materials of State practice in seeking to refute
Malta's arguments. The outcome is contradictory, since the Libyan
Government at one and the same time asserts the irrelevance of
practice toul courtand contends that the practice does not support
Malta's views on delimitation in the present case.
235. The modus operundiadopted in the Libyan Counter-Mernorial
combines several procedures. The first consists of misreporting the
argument of Malta; the second takes the form of a generalized attempt
to discount State practice; and the third procedure involves a sub-
stantial misinterpretation of the various delimitation agreements which
form a part of the evidence of State practice. These procedures will be
examined seriutim in this Chapter and the next. The Libyan misin-
terpretation of variousdelimitation agreementisalso the subject of an

expert opinion prepared by a leading authority on maritime boundary.
Dr. J. R. V.Prescott. The opinion is submitted as Annex 4 of this Reply.

236. In the context of reference to State practice Libya once again
insists that Malta contends that the "application of the equidistance
rnethod is a principle or rule of customary international law in the

delimitation of the continentalshelf".' This is not Malta's position.
Malta considers that State practice "gives the strongest possible in-

'However.somewhat inconsistethe LibyaMemorialdepartsCromthis policyon
three reaso{SeeHaltese Counier-Mernorial pp. 33-35).
LibyanCounter-Mernorial117.para. 5.49.[120] REPLY OF MALTA 227

dication of the appropriateness --the equitable nature - of the method
of equidistance in delimitation of the areas of continental shelf which
appertain to Malta and Libya re~pectively";~and that this is Malta's

view is acknowledged in the text of the Libyan Counter-MemoriaL2
The statement that in ceriain types of geographical situations the
equidistance rnethod constitutes an equitable solution is not equivalent
to the statement that the method "is a principle or rule of customary
international law".
237. In this and oiher contexts the ~ib~an argumeni assumes an
artificial aspect. Theact that equidistance is not "obligalory" or "a rule

of law" does not have the consequence that resort to the method of
rquidistance isitt)IO cir~~umstaric~ squitable and legally oppropriate.
Malta does not seek to offer inflexible axioms which have no place in
the contemporary law but toexamine al1the material which is relevant
to the issue of what is an equitable solution in the prescnt case. Of the
material available State praciice appears to be perhaps the most
relevant.

2. THELIBYAA NTTBMP TO [)ISCOUNT STATE PRACTIC tEUtCourt

238. The written pleadings of Malta have, quite natiirally. made
referenceto State practice relatingIO analogous geographical siiuations
as a part of the evidence of the practical application or eqiiitable
principles in negotiated delimitation agreements concerning areas of
continental shelî and exclusive economic zones. In contrast. the Libyan

pleadings nor only neglect the pertinent State practice. but also insisr, in
an artificial and doctrinaire way. that reference to State practice is
inadmissible for a variety of reasons.
239. The Libyan fear of State practice involves no less than eight
assertions which, both individually and by their number, dernonstrate
the existence of a tactical need to keep al1 practice oui of the piclure.

(i) Tlir Assrr.rio)rlirrttoSitl~u[io~zst-PA11u10goi1.s

240. In the first place there is the cornplaint that the situations
ofiered as comparable in geographical terms by Malta are somehow noi
"anal~~ous"~ and therefore, in the Libykinview, not comparable. At the
same time Libya is quite prepared to offer an examinlition of certain
instances of State practice with the purpose of establishing that certain
agreements have "key aspects" which are "unCavourable to Malta's

case".4 By so acting Libya clearly shows that even in situations which
are not analogous a cornparison is not only perfectly possible but also
justified.

Maltese Mernorialpara.195:and I;ealso paras. 109.272
Libyan Counicr-Memoriül, pp118-119. para5.512-5.52.
' Ibid.p. 4. par9.
Ihid.p.126. para. 5.68.228 CONnNENTAL SHELF Il211

(ii) The Asserfion thnr Ererj Situariori is "GeographicallyUnique"

241. The Libyan Counter-Memorial goes as far as to assert that "if

State practice demonstrates anything therefore, it is that each case has
its own unique setting and own peculiar facts".' Whilst geographical
circumstances are infinitely varied, this dogmatic denial of compara-
bility iscontradicted by the fact that States involved in disputes relating
to maritime boundaries habitually invoke comparable situations in
preparing their written and oral arguments for presentation to in-
ternational tribunals. Such a denial ofcomparability ignores the dic-
tates of common sense. If individual geographinl situations can be

assessed by tribunals for the purpose ofachieving an equitable solution,
then no doubt itmust be possible to make cornparisons in terms of the
equity or different delimitations.

(iii)Tliu A.ssri~~iaiiiur Siurr PrcrcricrRurcij Sprcijies Al/ilir Fuctors
Trikrii iiiio Coii.siilp~~urio~i

242. The Libyan Counter-Mernorial states that State practice "must
be viewed with some caution" because "State practice and particularly
delimitation agreements. rarely specify a11the factors considered by the

parties in reaching the ilt tir nastoelution".* This observation is undeni-
able as a generül observation but it laclis point. The transactions of
states miiy be accompanied by a variety of motives, some of which will
be political and some of which will relate to collateral benefits having
no direci relation to the subject-matter. But to say so is banal. The
legal significance of State practice cannot be discounted on such a basis.
Provided there is an actual or presurned reference io legal criteria. the
practice concerncd will have evidential significance.

243. Whilst the Libyan assertion quored above may be true of State
practice in a general way (whether it concerns continental shelf de-
limitation or any oiher topic of general international law), it is con-
tradicted by some recent examples or practice relating precisely to the
continental shelt. Thus a nurnber of agreements, such as the convention
between Spain and ltaly on 19 February 1974' and the agreement
between ltaly and Greece. signed on 24 May 1977,4 expressly state that

the criterion of equidistance is the basis of the delimitation. Moreover,
the receni agreements between France and Ma~iritius,~and France and
St. Lucia. expressly stüte in theirpreümbles that the application ol the
equidistance method constitiites an equitable systern of delimitation.

Ihiilpp.134- 135.para. 5.9and hee also p. 11para.5.52;and p. 124.para.5.63.
Ihid.p. 120para. 5.54.
.'SecMaltese Mernorial. Annex 63.
IhitlAnnex 64.
Ihiil.. Annex 57.
* IhirlAnncx 60. 11221 REPLY OF MALTA 229

(iv) The Assertion fhut the Court in the North Seu Cases Ruled out
the Use O] Stare Practice

244. The Libyan Counter-Memorial1 invokes the ludgment of the
Court in the North SeuZ cases to the ekt that a rule of custornary
law can only emerge on the basis ofa "settled practice" accompanied by
a sense of legalobligation. Thesestatements of genecalprinciple relating

to the formation of new rules of cusiornary law are as such, of course.
uncontroversial; and in the North Seu cases the Court was addressing
itself to the specific argument whether the equidistance/special circum-
stances rule was ohliyatory in the context of general international law.
No such proposition has been offered in the present case. Thus the
assertion of the Libyan Counter-Memoria13 that the evidence does not
support the view that equidistance is "obligatory" or "automatic",
involves nothing more than an assault on a target invented by Libya
for its own forensic purposes.

(v) The Assertion that State Practice isInadmissible if it is
"Unilateral"

245. The Libyan view is that "unilaterally enacted legislation" does
not count as State pra~tice.~This assertion is surprising, since much
State practice is by definition "unilateral". It is generally accepted that
the evidence of the practice of States includes legislation: hence the
value of the UnitedNations Legislarive Series.Obviously the legislation
by States is, inevitably, enacted "unilaterally"

(vi) The Assertion thal not EnoughState Practice is Available

246. The Libyan Counter-Mernorial offersthe further argument that
the State practice is unreliable because "many delimitatjons remain to
be established throughout the w~rld".~The fact remains that a signifi- *
cant number of delimitation agreements have already been concluded
with reference to situations which are geographically comparable, and
these agreements, together with the pertinent national legislation, con-
stitute a respectable body of evidence relating to the nature of an
equitable result in the present case.6

(vii) The Assertion rhat rhe Nirrnberof "Unresolt'ed SheU'Boundaries
isEloquent Testimony against ...Equidistance"'

247. This statemeni reveals a lack ofunderstanding of the problems
affecting boundary negotiations. In fact, it can be said with confidence

Pp. 12C-122,paras.5.55-5.58.
I.C.JReporrs, 1969pp. 43-45, paras. 7f-78.
' LibyanCounter-Mernorialp, . 123,para.5.62.
lbid., 135,para. 5.97.
Seealso.inthis respect.Annex4.
' LibyanCounier-Mcmorial,p. 110.para.5.28.230 CONTINENTAL SHELF LI231

that whatever the number of tinsettled boundaries this is no criticism of
the validity of the equity of equidistance. There can be a variety of
reasons why a boundary rernains unresolved and Malta will here
suggest only the most obvious ones.
First of al1equidistance can only be applied when the basepoints to
be used and their location have been agreed. This is a matter which is
often the cause of lengthy discussions and delays.

Secondly, many boundaries remain undefined forreasons which have
nothing to do with equidistance. For example:
(a) some countries, such as Australia and New Zealand, do not
negotiate their cornmon maritime boundaries because they do not
consider it a matter of urgency; (b) other countries, especially those
which have recently becorne independent have more pressing problems,
domestic or otherwise, that take precedence; (c)some countries cannot
at present enter into negotiations with a neighbour for political reasons,
such as non-recognition or a differencein ideologies; (d)there are very
few maritime boundaries around the African continent (except in the
Mediterranean) that urge an early settlement, partly because most of
these African countries either do not have important fishing grounds or

important fishing fleets, and few have a realistic prospect of finding
petroleum or natural gas on their very narrow continental shelves.
Thirdly there are, in several cases, disagreements on matters other
than the method of delimitation which prevent the boundaries from
being delimited. Such are for example: (a) disagreements over owner-
ship of territory, whether islands or sections of mainland; and (b)
disagreements as to the interpretation of boundary agreements con-
cluded prior to independence. The former disagreements explain un-
settled boundaries between Venezuela and Guyana, Argentina and
Chile, France and Vandatu and in certain areas of the South China Sea.

Problems of the second kind face Canada and the U.S.A.; U.S.A.and
the Soviet Union; the Philippines and Indonesia; China and Vietnam,
10 mention but a few.

(viii) The Assertiorz thot Malta hus Relied on "Selecriue" Sture
Practice

248. The Libyan Counter-Memorial accuses Malta of relying on

State practice of a "selective nature"' and refers to some agreements
which "Malta has elected to ignore." Malta's first reply to this
criticism is that Libya conveniently forgets here its previous con-
tention that no two situations are analogous, and consequently none
are comparable. Malta of course does not consider that al1situations
are analogous and, therefore, in invoking delimitations to support its
submissions it must choose agreements in comparable situations. In
0th words it necessurilyhas to be selective.At the same time Malta is

l IbM.,p. 132,para5.87
Ibid.p.132,para. 5.88.
Seepara.239 above.il241 REPLY OF MALTA 231

confident that it has produced evidence, both in its Memorial' and in
its Counter-Mernorial', which demonstrates that, as a general and
persistent pattern, State practice in ui~uloyoiis.siruariotrindicates that
the equidistance method gives an equitable solution.
249. As to Malta's "omissions", Malta does not deny that there
may be a small minority of agreements which do not coincide with its

views of equity in +e preseot case. What is difficult to understand is
why it is thought by Libya that the existence of this srnall minority
subverts the general pattern of delimitations invoked by Mülta. On this
aspect of Libya's argument Malta would make one final observation.
The delimitations introduced by Libya as examples supposedly "ig-
nored" by Malta yiiv jrosirppor.îru Libj-(1'pusirioitiiihr presrJnicusr.'

250. The Libyan position is that State practice isinadmissible tout
court. as evidence on the issue of what would constitute an equitable
solution in the present case and, consequently, in respect of al1issues
concerning delimitation of areas of continental shelf. Apparently State
practice is admissible only for the negative purpose of establishing the
proposition that:

"II State practice demonstrates anything therelore, it is that each
case has ils own unique setting and irsown peculiar facts. Asthe
former Geographer to the United States Department of State has
observed, 'every niaritirne boundary situation is geographically
unique'. Consequently, States have resorted to a wide variety of

solutions to ensure that they reach a satisfactory result in each
particular case."
251. This conclusion to the pertinent chapter of the Libyan Counter-
Memorial is exceplionalto a degree.The law relaiing10thecontinental

sheH has its roots in customary law and, in the law of treaty in-
terpretation, the subsequent practice of the parties has a significant role.
Moreover, in various parts of international law bilateral agreements are
commonly recognized as evidence of the mode of application of the
relevant international standard, for example, in relation to the use of
international rivers or to the treatment of aliens and their property.
According to Libya, the taw relating to delimitation of continental shelf
areas forms an enclave, an area of juridicaf eccentricity, in these
matters.

'Pp.61-96,paras.182-194.
Pp. 111-123, paras.252-256:p133-134;paras.274-275.
' See also Annex4.
Libyan Counter-Mernorialp.p. 13k135.para.5.96. CHAPTER XV

THE SO-CALLED "TRENDS AWAY FROM EQUIDISTANCE"
AND STATE PRACTlCE

252. The Libyan Counter-Mernorial misstates the position of Malta
when itassertsthat Malta presents theequidistance method as"a principle
or rule of law";and this failure to state Malta's arguments accurately has

already beenthesubjectofcomment in previousChaptersofthis Reply.The
failure to refieci Malta's argument concerning equidistance is closely
related to twoother tacticsadopted inthe LibyanCounter-Mernorial. The
first isthensistcnce on "the progressivedisappearance ofany distinction
between'opposite'and 'adjacent'states". Malta hassubjected thisthesisto
critical analysisand has affirmeclthe continuing significanceof the
distinction.' Thesecond tactic takes the form of a thesis that since 1969
there have been "clear trends away from equidistance manifested in the
jurisprudence, in delimitation agreements between States, and in'the

deliberations ofheThird Conferenceon the Lawofthe Sea."2 Malta has
already rejected thishesis with particular referenceto thejurisprudence
and to the Third Conference on the Law OC the Sa3
253. In the present Chapter it remains to examine the evidence
olfered by Lib.ya forthe view that the State practice in the form of
delimitation a reements supports the thesis of the "trends away from
equidistance."'lt may bc observa( in passing that the Libyan argument

does not hesitate to invoke State practice when il is supposed to give
substance to a view espoused by Libya.'

2. THE ERRORS IN THE LIBYAN ASSESSMEN OFTSTATE PRACTICE

254. The errors in the Libyan assessment of State practice will be
exarnined here broadly in terms of types or categories. A more syste-
matic commentiiry upon the Libyan assessment of individual de-

'
Seevaras.t20-122above.
' ~ibian Counter-Mernoripp.102-112,paras5.01-5.33.
' SeeaboveChaptcr V1Part II,para102-106.
Seein.1to para.23above.p.104-110paras.5.10-5.28.LI261 REPLYOF MALTA 233

limitation agreements, with particular reference to the "Comments"
containeci in the Annex of Delimitation Agreements appended to the
Libyan Counter-Memorial, will be found in the expert opinion of Dr. J.
R. V. Prescott annexed to this Reply.'

(a) IrrelevantStaternents

255. In the first place the treatment of State practice in the Libyan
Counter-Mernorial involves a number of completely irrelevant state- ,
ments. Two examples may be given. Thus the Truman Proclamation of
1945is invoked to show that it "made no reference to equidistance as
the basis for delimitation with neighbouring States."' This observation
cannot carry rnuch weight, since it is well known that the law relating

to the continental shelfwas just emerging in 1945.In any case itcannot
be assumed that the referenceto resort to agreement in accordance with
"equitable principles" in the Truman Proclamation js inimical to the
role of equidistance. So much so that the United States have agreed to
several maritime boundaries on the basis of eq~idistance.~ Secondly,
the Libyan argument invokes the Judgment in the North Sea cases to
support the proposition that "there was no rule of customary in-
ternational law requiring the use of equidi~tance."~As so often in the
Libyan pleading the assertion is beside the point. Malta has not

contended that equidistance is a mandatory rule; moreover, in point of
fact, the Judgment in the North Sea cases allowed a significant role to
the equidistance method.

(b) The Statemenlthat Many Agreementsdo nor SpeciJythe Method
upon which Delimitarion wasBased

256. The Introduction to the Annex of Delimitation Agreements
which accompanies the Libyan Counter-Mernorial places emphasis
upon the fact that "textually, a large number of agreements do not
specify the precise method upon which the delimitation was ba~ed."~

To the limited extent that this may be true, there is no reason to believe
that an agreement is thus deprived of evidential significance.There are
a number of uncomplicatedways in which the elernents of equidistance
can be detected in a de1imitation"and it is not the practice of
commentators to exclude the evidence of agreements on the basis that
they contain no express declaration of the method of delimitation
adopted. Not even the Libyan Counter-Memorial observes this "pro-

Annex 4
LibyanCounter-Memorial.p. 105, par5.12.
Seee.g., U.S.A.-Mexico. U.S.A.-Cuba, U.S.A:Veneruela and U.S.A.-New Zealand
Agreements.
P.2,para. 8.106,para. 5.14.
See Annex4.234 CONTINENTALSHELF [127]

hibition" when it finds it convenient to invoke agreements in support of

a Libyan argument. A perusal of the series published by The
Geographer of the United States Department of State, Lirnits in the
Seas,reveals that successiveholders,of that appointment have found no
difficulty inanalysing the basis of delimitations with the assistance of
normal techniques.

(c) Persistent Under-Estimation 01 the Incidenceof the Equidistance
Method inDelimitation Agreements

257. On a significant number of occasions the Libyan Counter-
Memorial, both in the principal text and.in the Annex of Delimitation

Agreements, produces a considerable under-estimate of the incidence of
the equidistance method in such delimitation agreements. This is a
persistent feature of the Libyan pleading, and the exarnples of this
under-estimate of equidistance are chronicled systematically in Dr. J. R.
V. Prescott's opinion.'
258. The under-estimation generally takes the form of pointing out
that certain segments of a delimitation are not based on equidistance,
even though in fact the line is substantially the result of applying the
equidistance method. This approach is to be seen - for example - in the
comments on the delimitations between Bahrain and Saudi Arabia and
between Iran and Oman.' A further tactic isto refer to adjustments due

to the presence of islands as though such adjustments involve a legally
significant divergence from equidistance when in fact they do not: see,
for example, the treatment of the delimitations between ltaly and
Yugoslavia, between Iran and Saudi Arabia, and between Cuba and the
United State~.~
259. It would be tedious to explore every fault in the parts of the
Libyan Counter-Mernorial dealing with State practice, and one further
example will suffice. Malta is taken to task for having invoked the
delimitation belween the Maldives and India and for having ignored
"key aspects" of the agreement "which are unfavourable to Malta's
caseVn4The substance of the Libyan complaint is that "most of the

delimitation line was governed on the lndian side not by its mainland
coast, but by the tiny island of Minicoy lying well out to sea." The fact
rernains that charpart of the delimitationwhich isgooernedbp the lndian
mainland clearly gives equal eflect io the Maldivesand to the Indian
mainland.The reference to the sector governed "by the tiny island of
Minicoy" can hardly support Libya's case.In the first place, the island
of Minicoy, so far from the Indian mainland, is clearly accepted as the
controlling coast and not the mainland. Secondly, if Minicoy is given
equal weight os against the Maldives,how does this support the Libyan
position?

Annex 4.
' Libyan Counter-Mernorial. AnnefxDelimitationAgreementsAnnexes5and40.
' Ibid.,Annexes14,17and53.
L~byanCounter-Memorial ,.126,para.5.68.[1281 REPLY OF MALTA 235

(d) An UnwurrontedEmphasis ori ihr Fucr that an Altgnmeni nus
"Neyotiuted"

260. Both in the Introduction to the Annex of Delimitation
Agreements1 and in comments on specific delimitations. the Libyan
Counter-Mernorial placesemphasis onthefactthat a linewas"negotiated",
apparently on the supposition that this obvious truth weakens the
significance of reliance upon the equidistance rnethod in the particular
agreement.Thissupposition niesin the faceofordinary logic.The element
ofequidistance, with or without atljustment on the basis of considerations
of legalprincipleor politicalbargain,willbeevidentand legallysignificant if'

it wastheresultoj'thenegoiiarioti,asitclearlywasinaconsiderable number
of instances.
261. Twoexamples ofthisattenipt by Libyatodiminish thesignificance
of a delimitation on the ground ihat it was "negotiated" will sufficeto
indicate the air of unreatily which surrounds this tactic. The agreement
between Mexico and the United States is undoubtedly based upon
equidistance, and this in both sectors, and yet the "Comments" in the
Libyan Annex describe the alignment as "a negotiated b~undary".~

Similarly,thedelim betwaeeiCouba andthe United Statesisdescribed
in theAnnex simplyas "a boundary everyturning point ofwhichhas been
established by neg~tiation."~In fact, the establishment of the boundary
involved the use of a rnedian line and this fact is attesied in an article
published byan officialofthe OfficeoftheGeographer ofthe United States
Department of S~ate.~

(e) The Fucr rAat Stutus Sometinies Use otlirr Mrtliods of'

Delimiiutiori

262. A furthertactic adopted in the Libyan Counter-Mernorial is to
stress the fact that"there is no one method ofdelimitation that States
have felt compelled to use in every sit~ation."~This is another variant
of the persistent assertion that Malta has advanced equidistance as a
"rnandatory" or "obligatory" rule. This is not Malta's position and it
goes withoiit saying that in certain circumstances the equidistance

method will not pi'oduce an equitable solution, and, in consequence,
sorne other method of delimitation willbe employed.The faet, however,
remains that what State practice shows is that these cases are few in
number and in the large majority or cases the delimitation was based
on equidistance.

'
Ibid.Annex 23..'ara. 9.
Ibid.,Annex 53.
R. W.Smith, 1981.MaritimeBoundariesof the UnitedSrairs GcoyrupkicRerieu3.
Vol.i 7,p. 402.SeealAnnex4.
Annex orDelimitaiionAgreements.Iniroduction,p.para. 12.Scalsothe Libyan
Counter-Mernorial, p.104-1 10paras5.10-5.27, pussim.236 CONTINENTAL SHELF il291

(f) Coriclusion: The Libjan Thesis of the "Trends Awuy From
Eqrtidistance"is Fulse

263, The errors in the Libyan assessment of the State practice for
the purpose of establishing the thesis of the "trends away from equidis-
tance" are so persistent and so egregious that the results of the
assessrnent are evidently unreliable.
264. The Libyan assessment is also incorrect, and the principal
indicator of the falsity of the Libyan thesis is. quite sirnply, the general
pattern of agreements relating to the delimitation of continental shelf

areas. In the Annex which accompanies Matta's Reply' delimitation
practice is subjected to. careful analysis and the incidence of the
equidistance method, especially in the case ofopposite States, is seen to
be very marked. Thus oui of fiftyagreements involving opposite States,
only six were not based either in whole or in part on the equidistance
method. Moreover, in respect of al1delimitation agreements concluded
after 1969,only nine, out of a total of fiftyfour delimitations were not
based either in whole or in part on the equidistance method.'

'Annex 4.
See Annex4. CHAPTER XVI

THE LEGAL SIGNIFICANCEOF STATE
PRACTICE IN CONFIRMINGTHE EQUITY
OF THE EQUIDISTANCE METHOD

265. What may be described quite properly, as the Libyan fear of
State practice, has resulted in the adoption of a position which con-
tradicts normal practice in the handling of the materials of inter-

national law. Libya is presumably well aware of the general tendency
for State practice to be referred to,more or less extensively,in the
written pleadings presented to international tribunals in the recent
past.' It is piquant to notice that in the Tunisia-Libya Case the Libyan
Memorial did no1 hesitate to invoke State practice,l and indeed, in the

present proceedings the Libyan Memorial has relied upon State prac-
tice in three separate c~ntexts.~ Recent contributions to the literature
routinely examine the relevant practice on questions ofcontinental shelf
delimi~ation.~ The substantial study entitled "Maritime Boundary"
presented by Dr. Jagota, in a course of lectures delivered at The Hague

Academy in 1981,5 is largely founded on an extensive referenceto State
practice.
266. In the present stage ofthe evolution of the law relating to
maritime delimitation, the evidence of State practice has particular
value. In combinarion with the developing jurisprudence of inter-
national tribunals the growing stock of delimitation agreements con-

stitutes an objectively very powerful indication of what is deemed to be
equitable in a variety of geographical situations. It goes without saying
that such application of equitable principles must be "examined within
the context of customary law and State practice" as in the case of other
concepts and principle~.~

Seetht~n~Ï*~rench ArbirrariDecisionof 30June1977pp. 79-80, para.15pp.
84-85 para.170;pp. 9+95, paras. 199-200.
p.43, the whole of ChapterIV.
For thedetailsseeMalteseCounter-Mernoria.D.33-35 .aras.64-67.
Sceihc worksofProfcssorBoweti,The~e~im'ifislandi" >nrernariuLaw, 1982.
pp. 169-83,271-277and the late ProfessorO'ConneIl,TheIniernarLawaofthe Sea.
Vol.1.1982Vol.II. 1983.
~ecueiidecours, vol. 171(1981,1,. 83.
6 Secthe Judgmentof theCourtin thc Tunisiu-Libya case, Reporls1982,p.46,
para.43. CONT~NENTALSHELF [1311

267. The section of Chapter 5 of the Libyan Counter-Mernorial
which is devoted to "State Practice Relating to Continental Shelf
Delimitation" includes passages criticising the use by Malta of certain
delimitation agreements in support of its argument.' These passages.

however, also contain important admissions of the validity of some key
elements in Malta's position.
268. Thus in its ~emorial' Malta invoked the Agreement which
established a delimitation between the Norwegian coasts and Denmark
(in respect of the Faroes). The Libyan Counter-Memorial makes two
points:

(i) The first is that the delimitation is aflected by delimitations between
neighbouringStates.That maybeso. However,itdoes notinany waylirnit
the relevanceofthe agreement for present purposes,sinceboth the Faroes
and the rnainland ofNorway wereaccorded an equalpotential in terms of
seaward reach. The Libyan Counter-Memorial does not contradict this
element in Malta's exposition.
(ii)The second point made isthat the "relevant stretch" ofthe Norwegian
Coast is short: and that "the delimitation line in this instance is in al1

likelihood governed by a single point on the Norwegian ~oast".~This
"criticism" involves an acceptance of the poinr developed in Maltese
MernoriaL5namely,that shortabuttingcoastsmay playasignificant rolein
delimitation.
In conclusion the points made by Libya leave intact, and indeed

confirm, the significanceof the delimitation: that the Faroes are given a
seaward extension equal to that of the mainland of Norway in the
relations of the two opposite coastal States, Denmark and Norway.
269. The Libyan ciunter-~emorial next refers to the delimitation
between Bahrain and Iran.6 Again the equality of seaward extension of
the coasts of the two opposite States is not denied. Instead, three
obfuscations are produced. Two are irrelevant malters: thus itis stated
that there are third State delimitations in "the immediate vicinity" and

that "the delimitation line is only 54 kilometres long". The third is the
assertion thar the detirnitation "is not based exclusively on equidis-
tanceW.Thefactisthat itisbasedsubstantially oneq~idistance.~Moreover,
this and other delimitations like it, not only do not even begin tojustify a
division ofshelf areas ofthetype proposed byLibya inthe presentcasebut
contradict it.

' Pp.125-128.paras.5.65-5.75.
' P. 39,para125.
'P. 125,paras.5.65-5.66.
Para. 5.66.
Pp. 37-39. paras121-126.
Pp. 125-126,para.5.67.
MalteseMemonal, p.62, para.185(a). SealsoAnnex 4.[132] REPLY OF MALTA 239

270. The legal significance of State practice in the present case is
reaffirmedbyMalta.That significancehasseveralfacetsand thesewillnow
be surnmarised.

(II S)tatepracticeconfirms theentitlement ofislandStatesto appurtenant
shelf areas on a basis ofequality with other coastal States.'
(h) State practice likewiseprovides clear indications that in comparable
geographical situations, the equidistance method was considered by the
parties as ptoducing an equirable res~lt.~
(c) State practiceeflectively contradicts the Libyan thesis based upon the

ratio ofcoastal lengthsand theuse~f~roportionality asa primary sourceof
continental shelf rights3
(dl State practice likewiseefiectivelycontradicts the Libyan thesis ofthe
significance of "the land mass behind the coast" and the consequent
"greater intensiry" of the natural pr~longation.~
(e) FinaHy State practice effectivelycontradicts the Libyan thesis that

geological and geornorphological features control the delimitation of
continenta1shelf boundaries.'

1 Maltese Mernorial,pp. 48-51. paras. 154-157:p54.para, 165.
2 Ibitl.. pp. 61-96. pa184-195.
' Maltcse Counter-Mernorial.pp.111-123.paras.252-257.
* See para. 79 above: See also Annex 4.
See above, paras. 70-71; see also Annex 4. SUBMISSIONS

271. Malta,respectfully requestingtheCourt to reject Libyansub-
missionsto thecontrary,repeatsandconfirmsthe submissionswhich it
has made in itMernorialand Counter-Mernorial.

Edgar Mivi
Agent of the RepubIic
of Malta. ANNEXES TO THE REPLY OF MALTA

Annex 1

"Mr Ben Amer reiterated that Libya could not accept the principle of
rquidistance just as Malta couId not accept the principle of propor-
tionality. Becaofthis Mr Ben Amer came with a concrete proposal
namely that both sides would forget their stands and would reach a
compromise agreement.
The Prime Minister stated that this proposal had already been made
before through MrenAmer and that he had informMriBen Amer
himself andater also the President that this was not acceptable." CONTINENTAL SHELF

Annex 2

LETTE RROM EXXON DATED 25 JUNE1975
TO MR.C. V.Vu, CHAR&D'AFFAIRES,
PERMANEM NTISSIONF MALTA TO THEUNITED NATIONS

June 25, 1975.

Dear Mr Vella:

This letter will acknowledge receipt of your letter dated June 23, 1975,
addressed to Mr J. K. Jamieson, wherein you advise of your under-
standing that Exxon Corporation is conducting certain oil exploration
activities within an offshorearea over which you statethat the Republic
of Malta maintains full sovereignty rights. On behalf ofthe Republic of
Malta, you request a categoric assurance from Our Company that no
such exploration or drilling activities are being or will be carried out in
any part of the describedrea.

During 1974, Esso Standard Libya Inc. (Esso Libya), an affiliate of
Exxon Corporation, entered into an Agreement with the National Oil
Corporation. a Libyan corporati~n, and owned by the Libyan
Government, under which Esso Libya is authorized to conduct explo-
ration and production operations, including seismic, within a certain
defined Area offshore the Libyan Arab Republic. A comparison of the
offshore coordinatescontained in Esso Libya's Agreement with the

coordinates set out in youretter indicates an area in conflict.
We are informed that the Libyan Government is aware of Malta's
position as to the demarcation of its offshore boundary: however, the
Libyan Government recently advised Esso Libya that it exercises
sovereign rights overal1 of the offshore Area covered by the 1974

Agreement. At the present time, Esso Libya'scontractor is conducting
seismicoperations offshore Libya. However, Esso Libyavises that no
seismic operations have been conducted within the area claimed by
Malta, nor has Esso Libya conducted any drilling operations within
such area.

It is in the interests of al1 concerned that both of the involved
Governments seek an early resolution of rhis question so that offshore
development can proceed in an orderly manne;.Itis our earnest desire
that this matter be resolved at an early date.

Very truly yours,

Charles J. Hedlund[147-149] ANNEXES TO THEREPLY OF MALTA

Annex 3

On his visit toTripoli on April 23, 1980, andat the various meetings,
the Prime Minister was accompanied by Edgar Mizzi,Karm Vella and
Martin Zammit, who travelled with him,and Maurice Lubrano who
joined the delegation in Tripoli. Mr Shweidi and Mr Sweidan also
travelled with the Prime Minister and Mr Shahati and Mr AI Atrex,
from the Libyan side were also present at the various meetings.
The Prime Minister had three meetings: the first was with Mr
Shahati, the Secreiaryin charge of Popular Cornmitteesabroad, Mr
At-Talhi, the Secretaryof the General People's'Committee and Major
Jalloud.

Meeting with MajorJalloud
The Prime Minister said the People of Malta would understand that
Libya could no1 continue to supply Malta with oil at current prices
forever. What the Maltese people coutd not understand - and the
Prime Minister could not explain to them - was the continued refusal
by Libya to reach some agreement on the dividing line. The Prime
Minister added that he attached such importance to this question that

he preferred to go back to Malta without any agreement on oil but
with an acceptable agreement on the dividing line.
Jalloud recalled the suggestion he had made at the meeting of
October 1979;but the Prime Minister pointed out that two proposals
had been made at that meeting, one by Malta and the other by Libya,
and both had failed to obtain an agreement. There had also been a
further meeting of experts but this too had been inconclusivebecause
the Libyans had never seriously wanted to reach an agreement with
Malta but had continuously used delaying tactics to prevent Malta
from drilling for oil.This had now to stop;and as he had given warning
at the other meeting,the Libyan Governrnent has since been formally
notified that the Maltese Government intended to drill on its con-
tinental shelf leaving out only, and for the time being, a band 15miles
wide.
At this Major Jalloud showed surprise, and added that he knew

nothing about this decision. He also said that Libya would protest
against and resistsuch an action.
The Prime Minister retorted that Malta would not be deterred, and
that Libyan-Maltese relations would be seriously affectedif Libya tried
to prevent Maita from enforcing her rights.244 CONïïNENTAL SHELF [1501

Jalloud said he was assured that no Companywould drill for Malta,
not even if another Government were involved.
The Prime Minister said that events would show how correct that
statement was. In this context Jalloud asked why Malta had given
AMOCO a concession which encroached on Libya'sclaims. The Prime
Minister answered al1the current concessions - including AMOCO's -
dated as far back as 1974f75. They were given at a time when an
agreement to go io the International Court of Justice appeared im-
minent. In fact an-agreement was reached, and it was signed in the
presence of Col. Ghaddafi himselfin Malta in 1976.But Libya had then
repudiated it.
The failure by Libya to ratify that Agreement wasthemost damaging
act Libya had ever dune to Malta and to theMalta Labour Party. For

four years Libya had, so to speak, used that stick with which to beat
the Maltese Labour Party.
On its part the Maltese Government had doggedly tried to reach an
agreement and avoid confrontation. It had failed, and now had no
option but to enforce its rights and drill. Speaking in English,Jalioud at
thispoint said:"We willgo to the Court in June". In reply to the Prime
Minister's query as to how this could take place, Jalloud said: "The
Agreement which war signed (Le.the 1976 Agreement) will be ratified
by the Congresses in June, and we will then go to the Court."[151-1541 ANNEXESTOTHE REPLYOFMALTA

Annex 4

EXPER T PINIONNSTATEPRACTICE :NOPINION
byDR.J. R.V.PRESCOTT

OPINION

On certainaspectsof the submissions concerningthe delimitationof
maritime boundaries contained in the Counter-Mernorialof the
Socialisteople'sLibyan ArabJamahiriyaftledon 26 October 1983.

by

ReuderinGeography
UniversitofMelbourne 1. This opinion examines the Counter-Memorial submitted by the
Socialist People's LibyanArab Jamahiriya on 26 October 1983in their
Continental Shelf case with the Republic of Malta pending before the
International Court of Justice. The examination has been made with
particular reference to the Annex of Delimitation Agreements sub-
rnitted by Libga and has the purpose of assessing the validity and
accuracy of certain assertions made, or conclusions reached, with
respectto the delimitation of maritime boundaries and the role, for that

purpose, of the method of equidistance.
2. This opinion considers. in particular, the following matters:
1. The Identification of Maritime Boundaries which involve the
Methocl of Equidistance.
2. The Libyan Analysis of Specific Boundary Agreements.
3. The ROleof Equidistance in Maritime Boundary Agreements
since 1969.
4. The Rôle of Physical Features and of DiiTerenr Coastal
Lengths in Maritime Boundary Agreements. ANNEXES TO THE REPLY OF MALTA

3. Only some of the agreements which involve the use of equidis-
tance announce this fact in the preamble. The analyses of agreements in
the Libyan Counter-Mernorial iisefullyidentify those cases where such
an announcement is made. Where the use of equidistance iç present
without having been specifically declared, ii is necessary to consider
how itcan be detected.
4. 'Thefirst step is to mark aiiy straight baselines proclaimed by the
Parties on the chart with the largest rnost convenient scale. In short
boundaries it will be possible to use scales of say 1:500,000. On such
charts 1 centimetre would represent 500metres, which is 0.27 nautical

miles.Since it is often inconvenient to work on more than one chart,
the chart used to illustrate loriger boundaries would have to be at
smaller scales, of say 1:1,000,000or even 1 :2,000.000. Even at these
scales it might be necessary to use more than one chart. At a scale of
1:2,000,000,1 centimetre would represent 2 kilometres or 1.08nautical
miles.
5. Once the straight baselines have been marked on the charts. the
location of the boundary's turning points and termini can be added, and
joined by a fine line. Since the finest line which mosi analysts would
draw would have a width of 0.1 rnillimetre, that line would represent a
zone 200 metres wide on a chart at a scale of 1:2,000,000.Once this
work has been completed, it is then necessary to test each turning point
and terminus with a pair of dividers to discover their relationships to
the nearest point on both coasts.
6. In making such comparisons it is important to bear in mind that
on charts drawn on Mercator projection the scale on any chart will

Vary,and will increase towards the poles. The changes in scale will be
least on Iarge scale charts near the equator and greatest on small scak
charts near the poles. Most charts aredrawn on Mercator's projectionbe-
cause constant courses on the sea appear as straight lines on the chart.
Thus, when using medium scale charts on Mercator's projection, itis
essential to ensure that the correct scale is used when measuring the
distance from the boundary to the opposite shore. Quite often the scale
wil) be difieren1when measuring from a turning point on ihe boundary
to the nearest points on the baselines, when these nearest points are not
on the same parallel.
7. If after taking these steps with due careitis foiind that the turning
points are equidistant, then the boundary is established as a median
line.
8. However, even ifthe points are not found to be on a rnedian line,
it would be presurnptuous to assume that equidistance played no role

in their location, without considering the following probiems.248 CONTINENTAL SHELF 11571

9. First, it is quite possible that the boundaries were defined on very
large scale charts, constructedspecificallyfor that purpose. Such charts
would not normally be available except to the two countries concerned.

In addition they would have al1the important points on the baselines
marked according to the most recent surveys, verified by both count-
ries. Such charts would certainly be more accurate than charts available
to analysts which, in some parts of the world, are based on surveys
made at least decades ago. The cost of bringing such charts to a better
standard of accuracy has generally prevented anyupdating, particularly
with respect to those coasts to which vessels givea wide berth, such as
the West and South Coast of Western Australia. Consequently an
analyst must consider the possibility that the available charts do not
have al1the correct information about reefs,rocks and islets marked, or
where such information is shown, itmight be in the wrong position.
10. It is,however, fairly safe to assume that, if turning points and
termini are identified by CO-ordinateswhich include degrees, minutes
and seconds, large scale accurate charts hive been used, since I second

represents about 30 metres. To produce such precise locations detailed
surveys must be available.
II. Second, it is possible that a plotted boundary rnay appear 10
follow a course other than the equidistance line in some sections
because the Parties have agreed to disregard some of the points on the
baseline. Conversely, the Parties may have agreed to allow the use of a
feature which would not normally be considered part of the baseline.
For example, when the agreement between Australia and France was
published, aiter being signed on 4 January 1982,it was easy to establish
that the boundary was based on equidistance, except in one sector
between points 18 and 19.' The solution to the problem concerning this
sector was supplied during a lecture by an officialof Australia's Foreign
Affairs Departnient on f 1 September 1983. He explained what had
happened in the following terms:

"One interesting aspect of the negotiations was that the French
accepted the use of Middleton Reef as a relevant feature, even
though this reef was only exposed at low tide. If Middleton Reef
had not ken taken into account a median line delimitation would
liefurther southwards. The French also accepted an Australian
proposal that the rnedian line be 'straightened' to improve the

boundary from both practical and presentational viewpoints."*
This explanation shows that the role of equidistance in negotiating this
sector of boundary was concealed first by using an unusual basepoint,
not envisaged by any conventions on the law of the sea, and second by
modifying the median line which this unusual basepoint has
established.

'See Annex ofDelimitation Agreements o. 71.
a P.Ci. Bassett,1983,"Delimitationof Australia'sMaritimeBoundaries",unpublished
paper delivereat the AustralianNational Universityirom 8 to II September1983. [1581 ANNEXES TO THE REPLYOF MALTA 249

12. The rûle ofequidistance mayalso be concealed when one or both
States use unpublicised baselines. In analysing the continental shelf
boundary between lndonesia and Malaysia, The Geographer of the
United States Department of State referred to Malaysia's straight

baselines, which were shown on a map. In fact Malaysia has never
proclaimed any straight baselines, and the existence of these lines was
only confirmed when Malaysia published a map of its territorial seas.
The map was published in two sheets at a scale of 1:1,500,000.O ' n it the
outer edge of Malaysia's territorial waters appeared as straight lines.
Such lirnits could only have been derived from straight baselines, and
these were found by drawing parallel lines I2 nautical miles landward
of the edge of the ierritorial seas. The existence of such baselines was
disguised by not showing any interna1waters. This omission means that
in some areas Malaysia is claiming territorial seas 59 nautical miles

wide.
13. A third situation in which the role of equidistance may be
difficult to detect is when some feature on the baseline has been given
only a partialeffect.The problem is more difficult when the States are
in an adjacent coasts situation than when they are opposite one
another. Though proportional discounting normally takes the form of
giving only half-effect to some features, there is no reason why the
proportion should not be one quarter or one third.
14. Another way in which the role of equidistance may be disguised
is when some of the boundary points are equidistant from a third State.
This situation occurs in the boundaries agreed between the United

Kingdom and West Germany, between the United States and
Venezuela,and between the Dominican Republic and Venezuela.In the
first agreement the boundary is equidistant between the United
Kingdom and Denmark and The Netherlands; in the other two agree-
ments points on the line are equidistant between the United States and
the Dominican Republic on the one hand, and The Netherlands
Antilles on the other.
15. This analysis makes it clear that if a boundary agreement does
not explain how the boundary was drawn, and if it proves impossible to
elicit this information from the countries concerned, it is necessary to
undertake detailed research to discover the part played by equidistance;

but the difficultyis more often than not overcome.

ContinentaSherBoundariesoj Malaysia2 sheeiai ascalc of 1:1,500,000.urersand CONTINENTAL SHELF

16. A careful examination has been carried out of the 71 maritime
agreements analysed by Libya in its Annex of Delimitation Agreements
submitted with its Counter-Memorial. Although it is claimed that the
analysis is "detailed and factual,"' the examination carried out has
shown that the Libyan analysis contain a number of errors, and that
the cumulative effect of these errors is to seriously understate the
significance of the use of equidistance in maritime boundary
agreements.
17. The agreements were the analysis in the Libyan Counter-
Mernorial and its Annexes appear to be faulty will now be considered
in detail, and in the order - i.e. the chronological order - listed and
analysed by Libya. It remains only to be premised that Libya has

omitted three delimitations; two concern France and Fiji and the third
is between Indonesia and Papua New Guinea.
18. The faulty analysis refer to the following agreements:-

(i) Iran-Sut~di Arabia, Agreement No. 17.

19. In referring to the boundary between Iran and Saudi Arabia, the
following statement appears in the Comments on the agreement:

"The boundary itself, however, has not otherwise been based on
equidistance although in parts it does approximate the boundary
that would result from a median line".
The analysis of The Geographer states that the eastern segment which
measures 45 naiitical miles ". .is essentiaHyan equidistant line between

two main~ands".~This opinion can be confirmed by measurements of
the distances involved.

(2) Irun-Qurur, Agreement No. 21.

20. The analysis of the boundary contained in Libya's Comments on
the agreement states that the "turning points ... suggest that the
boundary is more or less equidistant". The analysis by The
ceographer3 shows that the boundary is exacrl~*equidistant.

LibyanCountcr-Memoriül, p. 124.para.5.63.
' Lirnitiiihe Srus,No. 24.p. 4.
'Ibid..No. 25. 11601 ANNEXESTO THE REPLY OF MALTA 251

(3) Mexico- U.S.A.. Agreement No. 23.

21. In commenting on the boundary agreement between the United
States and Mexico, Libya cites from the U.S.Senate, Executive Report,
No. 9649, 5 August 1980,p. 24. According to this report the boun-
daries in the Gulf of Mexico and the PacificOcean can be characterized
best "as a negotiated boundary reflecting the assessment of the treaty
partners of their best interests". The Libyan Commenrson the agree-
ment also contain a quotation from the same report which refers to
"tradeofls" in the two areas whereby "a substantial area in the Pacific
Ocean ...went tothe United States and a somewtiat small area in the

deep waters of the East central Gulf of Mexico ... went to Mexico".
22. An uninformed reading of this analysis by Libya could lead to
the conclusion that equidistance was unimportant in this agreement. In
lact the reverse is true as the followingquotation from a papeby Dr R.
W. Smith (who is cited as an expert source by Libyal) demonstrates:
"Mexico and the United States front on two common water

bodies, the Pacific Ocean and the Gulf of Mexico. Technical
experts from the two countries held inforrnal consultations in New
York City during April, 1976,prior to the enforcement of extended
maritime zones by either country. At that time an inforrnal agree-
ment was reached to rnake recommendations to their respective
Governments on numerous technical issues.The boundary would
be based on and reference made to the 1927 North American
Datum because itwas the basis for working charts of both count-
ries. Equidistancewas un appropriate method ojdeiimitation in each
ojtireboundary reyiorrs.For practical purposes an attempt would
be made to simplify the equidistant lines. Between April and
November, 1976,the two countries carried out a technical exercise.

Minor discrepancies lhat appeared in the calculations for the Gulf
of Mexico were easily resolved by reference to large-scale coastal
charts. On November 24, 1976, an exchange of notes in Mexico
City eficted an agreement on a provisional line".2
Smith goes on to explain that al1the terminal points of the boundary in
the Pacific Ocean and the two segments in the Gulf of Mexico are 200
nautical miles [rom the nearest land of both countries.

23. Inspection of the boundaries on medium scale charts clearly
shows that the "tradeoffs" referred to earlier concern baseline points.
The United States secured full eiTectfor San Clemente Island in the
Pacific Ocean, while Mexico secured full eflect for the Whale Rock on
the Alacran Reef in the Gulf of Mexico. There was no question of the
two countries swopping areas which Mexico could claim in the Pacific
Ocean and which the United States could claim in the Gulf of Mexico.
Both boundaries in this agreement are very slight modifications of
equidistance lines.

' Annex of Delimitation AgreemIntroductiop. 3, para. 1.
Reÿiew,Vol.71,p. 402. Emphasissupplied.dariesof the United StGcoyraphicul (4) Bahrain-Iran, Agreemenr No. 25.

24. The Commentsan this agreement by Libya run as follows:
"The analysis of The Geographer of the U.S. State Department
States that two of the four turning points on the line 'were
determined by existing continental shelf boundary agreements'.
Thus the delimitation between Iran and Bahrain took place within
a restricted geographic area with correspondingly short stretches of
the Coast on either side of the Gulf resulting in a relatively short

overall delimitation line (approximately the same length as the
relevant coasts of Bahrain and Iran)".
It appears that the author of this comment has been guilty of selective
quoting, or a remarkable oversight. The full paragraph in the analysis
by The Geographer reads as follows:

"The Bahrain-Iran continental shelf boundary is not based
solely on the equidistance principle. Points 1 and 4 were de-
termined by existing continental shelf boundary agreements; the
remaining two points are nearly the same distance from Bahrain
and Iran, so the assumption can be made that Points 2and 3 are in
fact equidistant points. The continental shelf boundary agreement
does not specify that the principle of equidistance was utilized, but
rather that the boundary divides the shelf in a 'just, equitable and
precise mariner"'.'

The same points are made in similar lan uage in the Summary con-
tained in the analysis by The Geographer. 9

(5) United Kingdom-West German}, Agreement No. 27.

25. The Libyan Commentson this agreement state that:

"Although the basis on which the delimitation is established is
not specifiedin the Agreement, the boundary line is not equidistant
between the nearest points on the territories of the two parties. The
three turning points fall some 20 nautical miles closer to Britain
than to Germany".
That statement is true, but the situation couid not be otherwise after
this agreement became necessary following the 1969judgment of the
Court in the North Sea cases. However an objective analysis would

surely point out thatal1three points which define this boundary lie on
one of the equidistant boundaries which the United Kingdom ne-
gotiated with The Netherlands in October 1965,and with Denmark in
March, 1966.Indeed, Point 2 on the Anglo-German boundary occupies
the same position as Point 19on the original Anglo-Dutch boundary.

Limirs irheSeusNo. 58,p. 3.
Ihid, p. 5. ANNEXES TO THE REPLY OF MALTA
253

(6) Indin- S rnika,Ayrrrment Na. 38.

26. The Libyan Commenrson this agreement also seem to underplay
the roleof equidistance, as may be seen frorn ricornparisonbetween
those Commenrsand the analysis by The Geographer.
27. The Libyan Commenrscontain the following passages:

"The initial boundary line appears to divide the maritime areas
within the Palk Bay in more or less equal portions. Since the
relevant coasts of the parties are comparable in length, the de-
limitation appears to have resulted ina boundary proportionate tu
the length of the coasts involved ... .
The second agreement rnakesno referenceto equidistance or any
other method emptoyed to establish the maritime boundary. It
appears, however, that the liiie approxirnates an equidistant line, a
fact which is not surprising given the similar lengths and configu-
rations of the coasrs of the rwo States in the delimitation area and

the absence of any marked geomorphological relief in between".
In comparison, one cannot fail to note the objectivity of The
Geographer's comments:

"The (first) delimitation reflects a selective, i.e. modified, appli-
cation of the principle of eqiiidistance".'
"The information in Table 1 (this table records the distance of
turning points from the nearest coasts) indicates that the States
apparently have agreed (in their second agreement) to a modified
equidistant ljne and/or to one created by a selective choice of
relevant base points".'

This last quotation deals with the segment of boundary in the Gulf of
Manaar. The second agreement also extended the 'boundary drawn
originally in Palk Bay, into the Bay of Bengal. About this sector The
Geographer made the following comment:

"The two countries have apparently agreed upon a modified
equidistant line similar to the Gulf of Manaar delimitati~n".~
In passing it might be noted that in this analysis The Geographer refers

to another technical issue which sometimes makes it diîficult to detect
whether a point is equidi~tant:~
"The terminal point 6 is calculated to be 197.86miles from lndia
and 198.95miles from Sri Lanka. The intent was to continue the
boundary to 200 miles from each Coast; the discrepancy may be
partially explained by use of different spheroids in the distance
calculations".

' Limiis-the SeasNo. 66, p6.
' lbidNo. 77p. 7.
' Ibidp.8.
Ibid.254 CONTINENTALSHELF [1631

(7) Iran-Oman, Agreement No. 40.

28. The Libyan Comments on this agreement contain the following
statement:
"The Agreement does not indicate the method of delimitation,
although the Preamble indicates the parties' desire to reach an
'equitable' boundary. The final 5 or 6 points on the line may be
seen to deviate sharply from equidistance".

Measurements show that the maximum deviation from a median
position for any of the final six points is 0.3 nautical miles, or 555
metres. The Libyan comment just quoted is a curious way of admitting
that the first sixteen points occupy equidistant positions.

(8) Cuba-Haiti, AgreementNo. 52.

29. The Libyan Commentson this agreement report that the agree-
ment made reference to equidistance and equity in the Prearnble, that
the delimitation took place in a confined area and that the boundary is

about the sarne length as the coasts which face each other.
30. Suspicions about the nature of this boundary should have been
aroused by the Factthat fifty-one points are used to define a boundary
150nautical miles long, and that the coordinates are measured to two
decimal places of seconds. These two facts point io very careful surveys
and the use of equidistant points. When the points are plotted on a
chart they are round to be equidistant, and the termini lie within 2
nautical miles of the trijunctions that are equidistant from the Bahamas
in the North aiid Jamaica in the South.
31. Itis interesting to note- in view of Libyan comrnents about the
limited promontory of Norway's coasts which is involved in delimiting
the boundary with the Faroes, that only srnall sections of Haiti's coast,
around Cap du Mole St Nicolas and Cap Dame Marie, are involved in
fixing themedian line with the much longer coast of Cuba.

(9)Cubu-U.S.A., Agreemeni No. 53.

32. In the Commentson this agreement, Libya quotes the American
Deputy Legal Adviser as saying that though "the lineestablished by the
treaty Lis]close to beingan equidisraln iceegiving fuletTecltu islands
- [it]is in faca boundary every point of which has been established by
negotiation".
33. A fuller explanation, giving a clearer view of the importance
given to equidistance, has been given by Dr R. W. Smith (who has
already been quoted in this Opinion). After explaining that the United
States objected to some sections of Cuba's straight baselines, Smith
describes the procedure followed in order to solve the problem:

"During the technical discussions, comparable artificial con-
struction lines were drawn along the southern Florida coastline. An11641 ANNEXES TO THE REPLY OF MALTA 255

equidistant line was then calcutated by the use of the Cuban
straight baselines and theartificial construction lines of the United
States.Another equidistant line was calculated by the use of the
relevant basepoints on the low-water line of the coasts of the two
countries. A third line was then created between those two lines,
which was not an e uidistarit line, but which divided equally the
area betweeo them". 4

(10) U.S.A.-Venezueln, Agreenient No. 56.

34. The Comments by Libya on this agreement do not even mention
the word "equidistance". The closest the comrnentary cornes to admit-
ting that this is a boundary primarily based on equidistance is a
quotation from an article by M. S. Fieldman and D. Colson that Aves
Island, belonging to Venezuela, was given full ekt. Of course, if an
island is given full effectit must produce an equidistant line, and Aves
Island is the only fragment of Venezuelan territory involve id de-
termining the boundary between Points I and ll. Point 1l is equidis-
tant from Aves Island and El Roque, which belong to Venezuela, and
Muertes Island, which belongs to the United States. Frorn Point 11 the

boundary follows a westward course and Point 22 is very close to the
trijunction which is equidistant from Mona Island, which belongs to
the United States, Isla Saona, belonging to the Dominican Republic,
and Bonaire, belonging to The Netherlands.

(11) The Netlterkiiids-Vuneda, Agreernenf No. 57.

35. The Comrnenrs by Libya on the boundaries settled by this
agreement merely indicate that the sector separating Aruba, Curacao
and Bonaire frorn the Venezuelan mainland is an equidistant line. The
shorter boundary between Saba and San Eustaquio, belonging to The
Netherlands and Aves Island, belonging to Venezuela, is, however, also
a median Iine. Furthermore, Points 1 and 13,which are the termini of
the boundary limiting the Dutch claims from Aruba, Curacao, and
Bonaire, are equidistant between the Dominican Republic and those
islands of the Netherland Antilles. This is a case where Venezuelahas

apparently benefited by being allowed to use the territory of a third
state (the Dominican Republic) as basepoints.

(12) lndiu-Thuiland, Agreement No. 59.

36. The Commentson this boundary agreement in the Andaman Sea
contain the following assertion:
"The line is not, however, based on equidistance since in places it

falls some 23-30 nautical miles closer to lndian te~riiory than to
Thai".

' Op. Cit., Vol.p. 402.256 CONTINENTAL SHELF 11651

This assertion is contradicted by the fact that Points 4, 5, 6 and 7 are
either equidistant or so close to being equidistant that only careful
survey or the use of very large scale charts could establish the matter
wirh absolute certainty. The Geographer only refers to points on the
line connecting Points 4, 5 and 6 as being "nearly equidistant to the
respective baselines"' But il is evident that the distances from Point 7
have not been accurately measured on the chart provided. Point 7 in
Table 2 in the report byThe Geographer, is shown to be 126.8nautical
miles from lndia and 121 nautical miles from Thailand. One of these

figures, and probably the second, must be a misprint since measure-
ments on the chart which accompanies the report shows the two
distances to be identical. This segment of equidistance line totals 63.3
nautical miles. The divergence of 28.6 nautical miles from the median
position occurs at the trijunction with Indonesia. It is incorrect to
dismiss any role for equidistance on the basis of three out of seven
points, especiaHy when the four equidistant points define more than
two thirds of the boundary.

(13)AUS~~U~~U-PU NewIUGuinea,Agreement No. 60.

37. The Libyan Commenis on the agreement between Australia and
Papua New Guinea in Torres Strait are simply that there is no mention
of equidistance in the agreement and that the presence of islands makes

itdifficult to determine what effect they had on delimitation.
38. When turning points near the termini are examined on large
scale charts itis evident that they are based on equidistance. Point (a),
which is identical with Point A3 on the boundary agreed between
Australia and Indonesia on 18 May 1971, is equidistant beiween the
coasts of Indonesia and Australia. This is another case where a State, in
this case Papua New Guinea, benefits frorna basepoint on the Coast of
a third State, in this case Indonesia. Points (b) and (c)of the agreement
between Australia and Papua New Guinea are equidistant between the
two mainlands; islands are discounted. Itis true, however, that once
Torres Strait is üpproached - but only then - it becomes impossible,

because of the multitude of islands, to guess which basepoints might
have been used.

(14) Dominicati Republic-Vrne:uelu, Ayreemenr No. 61

39. On this agreement the Libyan Commentshave this to Say:

"The Dominican Republic-Venezuela Agreement specifically
States that delimitation has been based on equitable principles. No
mention is made of equidistance. The eastern sector (sector A) of
the boundary line appears to fall closer to the Dominican Republic
than to Venezuela".

LimirsinthSerrs.o.93,p.S.11661 ANNEXES TO THE REPLY OF MALTA 257

Reference to the map produced by Libya which follows this comment
makes it clear that Sector A is the western, not the eastern sector. But
apart from this evident oversight, there is an explanation why parts of
the western sector and ail the eastern sector are closer to the
Dominican Republic than Venezuela, and this is the presence of The
Netherlands Antilles off the coast of Venezuela. In fact most of the
turning points on the Dominican Republic-Venezuela boundary are
equidistant between Punta Beata, or Alta Vela,or Isla Saona belonging

to the Dominican Republic and the içlands of The Netherlands Antilles.
The only Venezuelan territory which is involved in producing this
boundary line of equidistance is the northern tip of Los Monjes
Archipelago. Points 5 and 6 are equidistant from this feature and Alta
Vela.

(15)Costa Rica-Panama, Agreement No. 64.

40. On this agreement, the Co~nments by Libya note, quite correctly,
that although the agreement States that the Parties employed the
median line "...strict equidistance was not adhered to". The Libyan

Comments, however, also acknowledge that both boundaries (in the
Caribbean Sea and in the Pacific Ocean) may be considered to be lines
perpendicular to the coast. This is a perfectly, proper application of
equidistance. It is a simple technique by which States achieve a
boundary which is simple to define and administer, by agreeing on a set
of artificial basepoints.
41. One other point should be made. As Libya itself pointed out in
respect of the boundary between Venezuelaand the United States' ". ..
it is not always apparent from an agreement itself what considerations
have gone into the negotiation of a boundary line". In the case under
review one notes that in Article III of the agreement Costa Rica

recognizes Panama's clairn to the Gran Golfo de Panama as a historic
bay, and such recognition may have affected the direction of the
perpendicular line.

(16) France-Australia, Agreement NO. 71.

42. In its Comments on this agreement, Libya gives only grudging
acknowledgement that the lines are equidistant. The boundary between
Heard and McDonald Islands, belonging to Australia, and Kerguelen
Islands, belonging io France, is an equidistant line. The boundary
throughthe Coral Sea 1salso an equidistant line givingfull effectto the
tiny atollsowned by each country. As pointed out earlier,' the long

section facing Points 13 and 19 was a modified equidistant line using
Middleton Reef as an Australian basepoint.

1 SeeLibya'sCornrnenon AgreementNo. 56.
Inpara. 1I:above. CONTINENTAL sHELF [1671

43. Libya's position on this question is revealed in two assertions
contained in its Counter-Memorial. These are:

"At the present juncture itis intended to show how, contcmpor-
aneously with the rejection of equidistance as a mandatory rule by
the Courts (and also by the Third Conference on the Law of the
Sea),the reliance on equidistance began to decline in agreements of
delimitation between States".'

"If a broad conclusion has to be framed as to the trend of
delimitation agreements, then it would be that the equidistance
method was never adopted as an obligatory method, that
particularly after the Court's 1969Judgment the incidence of its use
declined, and this trend was accentuated in the newer move
towards maritime boundaries".'

44. The evidence of this view is contained in the second volume of
the Counter-Memorial entitled Annex of Delimitation Agreements. In
order to test the proposition that reliance on equidistance has declined
since 1969the SolIowingsteps were taken. First. all 71agreements lisfed

and analysed in the Annex just referred to were examined to see
whether they involved any use of the equidistance method. For reasons
given in the Counter-Memorial of Libya, namely that it "did not
involve agreement on a b~undar~"~but rather the establishment of a
Common Zone, the agreement between Saudi Arabia and Sudan was
discarded. Itis to be noted, however, that the narrow joint zone which
Saudi Arabia and Sudan created between the 1,000 metres isobaths
contains the location of the median line which would separate claims

from those two countries.
45. Another agreement - that between Mauritania and Morocco -
was also not taken into account in view of the îact that Mauritania
withdrew its claim io the southern portion of the former Spanish
Sahara, according to the terms of the agreement of Algiersreached with
the Popular Front for the Liberation of Saguia il Hamra and Rio de
Oro on 5 Augiist 1979.4
46. On the other hand three other delimitations - not included in the

Libyan list - were added. Two concern France and Fiji and ~hetfiird
was between lndonesia and Papua New Guinea.

-
'Libyan Counter-Mernorialp. 104,ara.5.11.
Ibid.p. lû, para.5.27.
' At p. 107,para. 5.18.
''Ajricu ReseurchBulleiin 197Vol. 16No.8. p. 5379.[1681 ANNEXES TO THE REPLY OF MACTA 259

47. No agreement dealing with the territorial sea was included since
these are expressly excluded by the Libyan Counter-Mernorial.' On this
ground, the boundary agreement between the Federal Republic of
Germany and the German Democratic ~e~ublic*should not have been
included in the Libyan list. In fact although it is not specificallycalled a

territorial sea boundary, that is clearly the purpose it serves, as Libya
itselfac~e~ts.~The seaward terminus is only 5.5 nautical miles from the
most distant Coast and Article 3 of the agreement states that the
boundary is to be marked on charts pursuant to the Convention on the
Territorial Sea and Contiguous Zone. No account has therefore been
taken of this delimitation.
48. The second step involved classifyingeach boundary according to
whether it separated adjacent or opposite States. The term "boundary"

is used here as denoting a distinct boundary even ifmore than one such
distinct boundary may have been delimited in the same agreement.
Thus the agreement between Indonesia and Malaysia in 1969defined
three distinct boundaries: two were defined in accordance with equidis-
tance, while the third followed some course other than the median line.
Each of these three boundaries, therefore, is dealt with separately.
However, where two States simply extend an existing boundary, as
lndia and Sri Lanka did on 23 March 1976, only one boundary is

recorded.
49. Itis recognized that there may be differences of opinion as to
whether a particular boundary should be classified as one which
separates opposite States or one which separates adjacent States.
However the classification may be relevant and it has for that purpose
been carried out. With this in mind, this task has been performed in the
least exceptionable manner.
50. Within each major class of adjacent or opposite States, the

boundaries were then subdivided into two further subdivisions accord-
ing to whether they relied on equidistance or not. Finally these
subdivisions were distinguished into agreementsentered into before the
end of 1969or after.
51. The results of this tabulatian are as follows:
BOUNDARIES BETWEEN BOUNDARIES BETWEEN
OPPOSITE STATES ADJACENTSTATES

Equidistant Othrr. Equidistunt Orlier
(Table 1) (Tublr 2) (Table 3) (Tublr4)
Pre-1970 10 1 9 5
34 5 1I 4
Post-1969

52. This table shows that before 1970the proportion of boundaries
which relied on equidistance was 76%.In the period since 1969,83%of
boundaries defined by agreement have relied on eq~idistance.~
' SeeAnnexof Delimitation Agreementp.1,para1.
AgrccmcntNo. 39.
' lbid..Commrnts.
The agreementsonwhich the tableh;tsbeenworked outaresetout,inihcirappropriate
classification,inles1,2,3 and4 attachcdto thisOpinion.260 CONTINENTALSHELF [1691

53. The onlyconc1usionthat can be drawn from the facts given
above is that equidistanceplayed an important roleboth beforeand
after1969, and thatsincethatdatethe incidence ofequidistantboun-
darieshas, il anything, increased. 1701 ANNEXESTO THE REPLY OF MALTA 261

4. THE R~LE OF PHYSICA FEATURE AND OF DIFFEREC NOTASTAL
LENGTH N MARITIM BEOUNDAR AYGREEMENTS

54. Libya attaches great importance to two assertions of a physical
character. Thefirst is that there is between the two countries an area
which Libya calls a "Rift Zone"; and the second is that the relevant

Libyan coastline is aboutnine times longer than that of Malta.
55. An examination has therefore been carried out of al1 known
boundary agreements in order to discover whethei. similar consider-
ations as those advanced by Libya have played an important rôle in the
delimitation of the boundary eslablished agreement between States.
56. This examination has revealed that, even in those agreements
wert no element of equidistance can be detected, there is onlyone
agreement which was significantly affected by considerations oa
marked disruption or discontinuity of the seabed. The agreemishat
between Australia and Indonesia signed on 3 October 1972,and the
physicalfeature in question is the Timor Trough or Trench which lies
between Australia and the Indonesian Island of Timor.According to
Libyan sources' this Trough "is more than 550nautical miles long and
an average of40 miles wide,and the sea-bed slopes down on opposite

sides to a depth ofover 10,000feet".
57.The boundary between these two States is still onIy partly çettled.
At the time the settlements took place (Agreements of 18 May 1971,9
October 1972 and 26 January 1973)the eastern part of the Island of
Timor belonged to Portugal and the discussions were therefore re-
stricted to the areas West and east of this Portuguese territory. Now
that Indonesia has assumed control of Portuguese Timort has become
necessary for Indonesia and Australia to close thejr seabed boundary
across what has become known as the "Timor Gap" and Indonesia is
understood to be pressing to complete the boundary by means of a
median line. In "The Age", a Melbourne newspaper, of 31 March 1984,
some comments by Dr. Mochtar, the Indonesian Foreign Minister,
were reported. He is quoted as saying that the Australian position was
based on the 1958 Convention on the Continentai Shelf (presumably

the depth and exploitability principles)te Indonesia based its po-
sition on the 1982 Convention on the Law of the Sea (presumably the
distance principle).
58. With respect to the second question viz. whether a marked
difîerence in the lengths of the coastlines of the countries involved
appeared to be a factor in delirniting maritime boundaries, an exam-
jnation of the boundary agreements reveals that, here too, there is only

' LibyanMcmorial.p100note 1.262 CONTINENTALSHELF [1711

one example where the relative lengths of the coastlines is believed to
have played a part.
59. The two countries are France and Spain and the area involved is

the Bay of Biscay. The evidence that part of the dividing line estab-
lished by the agreement of 29 January 1974is based on "the ratio of the
artificial coastlines of the two States" is provided by The Geographer.'
The agreement itself only specifiesthe basis on which the first part of
the dividing line was defined namely that the line "is, in principie, the
line whose points are al1 equidistant from the French and Spanish

baseline~".~
60. Conversely, the examination of the boundaries established by
agreement has revealed that there are a number of cases in which
significant depressions in the seabed have apparently been ignored
when boundaries were delimited in their vicinity.
61. These cases, and the relevant data concerning them, may be

summarized as follows: -

Date oj' Depth
Agreement Name ofFeature ofSea

(a) Norway-UK Norwegian Trough 400 metres
(b) Norway-Denmark NorwegianTrough 700 "
(c) Cuba-Mexico Campeche Escarpment 3000 "
and Yucatan Channel
(d) Cuba-Haiti Cayman Trough
(e) Colombia-Dominican ArubaGap
Republic
(f)Dominican Republic-
ArubaGap
Venezuela

62. With respect ro these cases the following additional points may
be made.
(a) The Anglo-Norwegian Agreement signed on 10 March 1965
produced an equidistant boundary. Although the Libyan Counter-
Mernorial states that "It is unclear whether the presence of the
Norwegian Trough was taken into account during the discussions

concerning the delimitation lir~e",~it is perfectly clear that any con-
sideration of this feature had no significanceto the final outcome.
(b) Even though the Norwegian Trough reaches its greatest depth
between Denmark and Norway, it had no effect on the final de-
limitation of tlie boundary, which isa median line established by
agreement on 8 December 1965.
(c) On 26 Jiily 1976 Cuba and Mexico delimited an equidistant

---------------
' LimitsintheSeusNo.83, pp. 1314.
ForAgreementSee Libyan Counter-Mernorial,Vol. II ParAgreement No. 34.
J IhidAgreement No.S.~721 ANNEXES TO THE REPLY OF MALTA 263

boundary which separated their exclusive economic zones and con-
tinental shelves. The agreed Iine is a median line, ignoring campletely
the physical features of the area. Thus the northern part of this

boundary cuts across the welldefined geological and structural grain of
the seabed. The agreed line also cuts across the Banco de Campeche
(the broad submerged margins lying off the north coast of Mexico's
Yucatan Peninsula) just south of the terminus of the Campeche
Escarpment, and allocates to Cuba two areas of the continental slope
which mark the edge of the continental margin surrounding the
Yucatan peninsula. These two areas are separated by the Catoche

Tongue, which is the largest submarine valley cut into the northeast
part of the Banco de Campeche.
(d) The boundary agreed between Cuba and Haiti - which is also an
equidistant boundary - cuts across another significant depression: the
Cayman Trough. This feature has been described by Uchupi in the
following terms:

"Cayman Trough is a structural low 1700km long and over
100km wide extending from the Gulf of Honduras to the Gulf of
Gonave in Hispaniola (Banks and Richards. 1969). Its seismicity

and rugged topography make this depression one of the major
tectonic units of theCarribean".'
(e) The Dominican Republic signed boundary Agreements wiih
Colombia on 11January 1978and with Venenzuela on 3 March 1979.

The equidistant boundaries which resulted are unrelated 10 the Aruba
Gap which is the deep water connection between the Colombia and
Venezuela Basins.' These two basins are separated by the Beata Ridge
which extends southwards for 210 nautical miles [rom Punta Beata on
the South coast of the Dominican Republic. This ridge is a complex
faulted horst which is tilted to the east and inclined to the south.

(f) The ekct of these last two boundaries is to place the southern
parts of the Beata Ridge, which is geologically, structura!ly and geo-
morphologically part of the Dorninican Republic, within the national
maritime zones of Colombia and Venezuela.

' Uchupi,E.. 1975"PhysjographyoftheGulf of Mexico and the CaribbSea': in
The Gitlf oMexico andrhe Caribheon. ThOceon BasinsandMargins. Vol. 3, ediied
by A. E.M. Nairnand F.Ci.Stehli, New York.44,
Ibid.p.37. CONTINENTALSHELF [1731

TABLE 1
Agreements.which have relied on equidistance,concluded between
States with coasts that are mainly opposiie.

Srutes Dure'

Bahrain-Saudi Arabia 22. 2.1958 (26. 2.1958)
Norway-United Kingdom IO. 3.1965 (29. 6.1965)
ProiocolZ 22.12.1978
Netherlands-United Kingdom (23.12.1966)
Protoco13 ( 7.12.1972)
Denmark-Norway ( 3. 6.1980)
ProtocolJ (24. 4.1968)
Denmark- United Kingdom ( 6. 3.1967)
Protocol" ( 7.12.1972)

Italy-Yugoslavia (21. 1.1970)
Iran-Saudi Arabia (21. 9.1969)
Iran-Qatar (IO. 5.1970)
Indonesia-Malaysiab (17.11.1969)
Australia-lndonesia (8.11.1973)
Bahrain-Iran (14. 5.1972)
Iialy-Tunisia (9.12.1973)
United Kingdom-West Germany (7.12.1972)

lndonesia-Thailand (16.7.1973)
Canada-Denmark (13. 3.1974)
Japan-Korea' (22. 6.1978)
Italy-Spain (16.11.1978)
India-Sri Lanka (8. 7.1974)
Extension" (IO. 5.1976)
Iran-Oman (28. 5.1975)
India-lndonesia (17.12.1974)

Cuba-Mexico (26. 7.1976)
India-Maldives
Greece-ltaly
Colornbia-Dominican Republic
Colombia-Haiti
Netherlands-Venezuela'
1ndia-Thai land
Ausiralia-Papua New Guinea
Dominican Republic-Venezuela

Denmark-Norway (3. 6.1980)
France-Tonga (il. 1.1980)
France- Mauritius (2. 4.1980)
New Zealand-United States
(CookIslands)
New Zealand-United States
(Tokelau) 2.12.1980
France-Si. Lucia 4. 3.1981 ( 4. 3.1981)

Australia-France" 4. 1.1982 (IO. 1.1983)
Fiji-France' ' - 19. 1.1983 [174-1751 ANNEXES TO THE REPLY OF MALTA 265

- ~--- - -
'The first date is the date wheri the agreementwas signd; the second is the date when
the agreement camc into force.
The original boundary was extended.

' The original boundary was amcndcd ioltowing the 1969 judgmcnt in the Norrh Scu
Cases.
Ont point in the original agreement was alteteci.
' The original boundary was amended following the 1969 judgment in ihc Norih Suu
cases.
This agreement contains two equidistant boundaries. The third, which is not
equidistant.is listed in Tabl4.
' This agrccmcnt defincda boundary and a joint developmcnt zone.
The original boundary was extended.
This agreement contains two equidistant boundarics.

IbThis agreement contains two cquidistant boundaries.
" This agreement contains two cquidistant boundarie.

TABLE 2

Agreements, which have not relied on equidistance, concluded between States
with coasts that are mainly opposite.

Countries Dote '

Trinidad-Venezueja 26. 2.1942 (22. 9.1942)
Australia-Indonesia 8.10.1972 ( 8.11.1973)

Du bai-Iran 21. 8.1974
Colombia-Costa Rica 17. 3.1977
France-Venezuela 17. 7.1980 (28. 1.1983)

Iceland-Norway 22.10.1981 (2.6.1982)

-
'The first dateis ihe date the agreement wüs signed;the second isthe date itcame
infa Corce.266 CONTINENTAL SHELF 11761

-. TABLE3

Agreements. which havr eeliedon equidistance.concludedbetweenStateswiih
coaststhat are mainlyadiaceni.

Norway-Soviet Union
Ntthcrlands-WestGcrmany

Extension2
Finland-SovietUnion
ExtensionJ
Denmark-West Germany
Extension2
Norway-Sweden

EastGerrnany-Poland
Poland-Soviet Union
Mexico-United States"
Indonesia-PapuaNew Guinea'
Extension6
Extension7

Brazil-Uruguay
Finland-Sweden
ArgentineUruguay
France-Spain
Kenya-Tanzania

Colom bia-Panama
Costa Rica-Panama

'The first datisthe date the agreementwas signcd: the second is the date it came
inio force.
This extension wasmade following the 1969Judgmcni in thNorth Svrcases.
:The original boundary was cxtcnded.
The agreementdefineci two distinct boundaries: one in the Gulf of Mexico, the other
in thePacificCkcan. Thtsc boundaries were extendcd by an agreement signcd on
4.5.1978but the Senateof the Unitcd States bas not ratified it.
This agreement was enterai into by Australia on behalr of Papua New Guinca. The
boundary south of tht island called New Guinea has bKn includedas pari or the
Australielndonaia boundary listed in Table1. This agreement also drcw a short
segmentof boundary north or thc island called New Guinea. and this boundary only is
included in this Table.
" This agreement defined the land boundary bctwcen Papua New Guinea and
Indoncsia, anit included a short extensiofthe sea boundary agrced south of the
island called New Guinca.
' This agreement extendcd the cxisting boundary north of the island calltd New
Guinca.[1771 ANNEXES TO THE REPLY OF MALTA 267

TABLE 4
Agreementsw , hichdid not relyon equidistance c.oncludedbctweenStates with

coastsihat are mainly adjacent.
Countries ~utu'

Ecuador-Peru 18. 8.1952 ( 6. 5.1955)
ChilcPeru 18.8.1952 ( 6. 5.1955)
Guinea Bissau-Sencgat 26. 4.1960 (26. 4.1960)

Qatar-Abu Dhabi 20.3.1969 (20.3.1969)
Indonesia-Malaysia2 27.4.1969 (7.11.t969)
MalaysizThailand 21.12.1971 (16. 7.1979)
Gambia-SenegalJ 4. 6.1975 (27. 8.1976)

Colombia-Ecuador 23. 8.1975 122.12.1975)

' The firstdateithc datcthc agreenienwas signd: the seconisthe date icame
inio force.
This isthe boundary which commences on thenorth shore of theislandcallcd
Bornco.The oiher IWO boundariesdefincdby this agreementarlistcinTable 1.
' Thcrearc Iwo boundaricdefinaiby thisagreement. CONTINENTALSHELF

CERTIFICATION

I,theundersigned,EDGARMIZZ1,AgentoftheRepublicofMalta,hereby
certifythatthecopiesfthedocumentsattachedasAnnexes1,2and3ofthe
Reply subrnittedby the Republicof Malta are accuratecopies of the
documentsthey purportto reproduce.

This 12Iday of July1984.

EdgarMizzi
Agentof the Republic
of Malta.