WRITTENOBSERVATIONSON
THEAPPLICATIONFOR PERMISSION
TOINTERVENE
OBSERVATIONSÉCRITESSUR LA REQUÊTE
À FIN D'INTERVENTION OBSERVATIONS OFTHE SOCIALIST PEOPLES LlBYAN ARAB
JAMAHIRIYA ON THE APPLICATIONFlLED BY ITALY
FOR PERMISSION TO INTERVENE
1. On behalf of the Socialist People'sLibyan Arab Jamahiriya ("Libya'), 1
have the honour pursuant to Articl83 of the Rules of Court and the decision
of the President of the Court fixing5 December 1983as the time-limitfor filing
wniten observations, communicatedto the Agent for Libya by a letter (ref.
70589) from the Reeistrar on 24 October 1983. 10 submit the followine
~bsekaiions uith &&CI io the Application Cilcdby the Government of ltaly
on 24 Ociobcr 1983(the "Application"') for pcrmirsionto intervene under ihe
tcrms of Aniclc 62 of the Siaiutc in ihc case concernine the ConrrnenrSheIf
{iibyan Arab Jamohiriyrr/Malto). -
2.The following Observations examine certain problems raised by Italy's
request for permission to intervene. WhilcLibya is fully aware of the need to
take account of the presence of third States in the course of the delimitation
between Libya and Malta, the present Applicationdoes appear to give rise 10
variousdi~culties.
3.Ar; far as Libva is aware. the Annlication now made bv Italv is the first
occasion on which'ltaly has s&ht vk:~-vis Libya the estab<shm&t of claims
to arcas of contintntal shelf involving dtlimitation bctween their respective
areas ol continental shelf. Libyodots, of coursc. contemplatethe nced for such
dclimitarion in certain areas, but there have been no negoliations and no
previous indicaiion by Itoly to Libya of where, in the vicwof Ilaly, such necd
mighl arise.This Application createsan unforesccnsituation. As far as Libyais
conctmcd, Italy appcars in ils Applicalion10bc indicatingfor the first tiils
claimsto ares of continental shtlfin thc vicinityof Malta which+ght givcrisc
io a need for adehmitation with Libya. Until now. no such claim has been
Iormulatd and. kin~ advancedfor the first time now. thcrc must bc a serious
&;ion asro the ialQity of such a claim. ltaly mhave known of thc attitude
of Malta and Libya exprcssedin overt acts. such as legislation,public notices
and the nant of concessions.Ilmus1alsohave known of thc SpccialAgrcement
signeclberweenMalta and Libyain 1976and of the ratirication and notification
to the Coufl of the Agrcementin 1982. Yet,it is only nowthat ltaly seeks 10
raise the claims indicated broadly in its Application which, as far as Libya is
mnŒrnd. have neverbeendefinedor identified.
4. If 1&lYis seekingdelimitation between ils areas of continental shelf and
those of Malta and Libya by wayof a judgment or judgments of the Court, it
would have been mort appropriate to have opened negotiations,in particular
wiih Libya, whichmightin due course have led to the drafting of a compromis
1 Rcfcmus toIhcAp licationan totheEnglishtranslationpreparbytheRcgistry.
vexa noi rfproduccinIKepresen rerie(Noie bytheRegisiry.)]430 CONTINEN'I'AL SHELF
for the submission of thc appropriate issues Io the Court. Prior to thc prcscnt
Application ltaly had taken no such stcp. As it is, there have been no
negoliaions betwccn ltaly and 1,ibyaand no dispute has arisen hetween them.
5. The attempt by ltaly Io intervene ai this late stage of thc proçadingï
would seem to create some inequality with rcspect to the Parties. Not only has
Italv been aware of the facts mentioned in oaraeraoh 3 above. but bv
intcrrening now would have the advantage oi se&; thc Mcmohals and
Countcr-Mcmorinls of Libya and Malta bcfore placing the dctails of Italy'scase
on record in writina beforc the Court. This would. in thc circumstances of the
tihjo/Malio case. put the Parties, which havc alrcady committcd thcmscl~esb)
their wniicn pleadings. at a disadvantagc. Thiswould be unfair.
6. Alihouah nnt the first requesi io intervenc under Articlc 62. thc ndtural
~tartin~-~oi~tfor an examination of the Application of ltaly is the Judgmeni of
the Court on the Application by Malta to intervcnc in thc case concerning the
continental shclf bctwccn Tunisia and Libya. The upshot of that Application
can be seen in clear and concise terms in paragraphs-31 to 36 of the jüdgnent
on the Application delivered on 14 April 1981 (I.C.J. Reports 1981, p. 3 at
pp. 18-20).Although in its Application Italy formally refers to Article 59 of the
Statutc. il is difficult to escaoe the conclusion that the observations of the Court
conocrning thc Maitesc ~~piication also apply Io the Applicaiion in the prescnt
case. Morcovcr, thcrc is an ambiguity in the rcferencesto Article 59which ma),
when clariiïed, remove anv apparent distinction between the Applications of
Italv and Maita isee oaras. 54 ëiseo. belowl.
7. In paragraih 35 the Court str;sscd that Malta sought to enter the case but
withoui assuming the obligations of a party to thc case within the meaning ol
ihc Statutc, and in particular of Articlc 59 undcr which the decision in the case
would be binding Üpon Malta in their relations with Libya and Tunisia The
Court added that if Malta had sought to submit its own legal interest for
decision by the Court, and become a party, the question of the need for a
jurisdiciional link would have arisen (see paras. 28 ct scq. bclow).
S. In paragraph 33. setting aide Malta's general interest in the Court's
trcatrncnt of thc rclevant circumstances and legal considerations, the Coun
stated:
'But what Malta has to show in ordcr to obtain permission to intervene
undtr Articlc 62 of the Statute is an interest of a leeal nature which mavbe
dlcctcd by thc cou ri'^ deciçion in ihe preseni càse between Iunisia'ond
Libya Thiscase has been braughi before the Court hy a Special Agrcemcnt
between those two countries under which the Court~is rcaucstcd ru dccidt
what are the principlcs and rulcs of intcrnational law whichmay be applied
and ta indicatc the practical way to apply thcm in thc delimitation of the
arcaç of continental shelf appertaining to Libya and Tunisia. f'hat isthe
case before the Court and it is one in which Tunisia and Libya put in issuc
their ciaims with respectto the matten covered by the Special Agreement."
Thcn. alter finding that thc limitcd form of panicipation in the subject-maiter
soughi by Malta could no! properly be admitted as falling within thc tcrms of
lhc intcrvcntion for which Articlc 62 of the Statute orovides. the Court decidad
that ii could not accede Io the request for permisiion to intervene (paras. 34
and 3..
9. However, at the end of paragraph 35, thc Court reverted to the importance
of the Special Agreement between Tunisia and Lihya. It added these con-
siderations: ODSERVATION OFS 1.IRYA 43 1
"The findings at which it arrivea and the reasoning by which it reachcs
thore Fjodings in the case betweeii Tunisia and Libya will thercforc
irwvilablvbc dirccted exclusivelv to the mattcrs submitted to the Court in
[he speiiai Agreement concludrd bçiween those States and on which its
jurisdicrion in the present case is based. It follows that no conclusions or
inferences mav lefitimately be drawn from those findings or that reasonine.
with mpect to nghts or chims of other States not to the case." -
The importance of the Special Agreement between Libya and Malta is
ernphasized in paragraph 34 below.
IO. The relei,ance of the Judgment on the Maltese Application in the
TunisiajLibyo case is beyond question. Therefore, it is no1 surprising that the
Application in the present case is written and arranged in the light of the Court's
conclusions in that case. Italy hasearly tried to avoid the obstacles in its path
which appear from the Judgrnent of the Court on the Maltese Application but,
in the view of Libya, has failed to do so. However, the arrangement adopted in
the Application stemming from Article 62 of the Statute and Article 81 of the
Rules of Court will be followed in these Observations.
II. At this ooint it is convenient for ourooses of reference to set out the
provirions of inicle 62of the Statute an2 the requirements of paragraph 2 of
Article81of the Ruls of Court. Article 62provides:
"1. Should a State consider that it has an interest of a legal nature which
may be aifenad bythe decision in the case, it may submit a request to the
Court to bepermitted to intervene.
2. 11shailbe for the Court to decide upon this request."
Paragraph 2 of Article 81 of the Roles requires that the Application shall set
out :
"(a) the interest of a legal nature which the State applying to intemene
considers may be affected by the decision in that case;
{bj the orccisc obiect of the inl~ ~ent:on
rr) any hazigof j~risdtction which isçlaini10 exisi as beturcn thc State
applyiogtii:nicr\çne and thc panier to thca,c."
II. lTALYmA ?LLEGLU TERE ES OTF AI.EGAL NATUR EHAT MAY 8E AFFEC'TEL)
BY TueLIBYA~MALTC AASE
12. Thc Application begins by obscrvations on the Spccial Agrccmcnt of 23
May 1976between I.ihya and Malta. This is in itaelfa proper beginning bccause
the Application for petmission to intervene mus1stem from, and be related Io,
the case as submitted to the Court by that Agreement and docs no1depend un
the case as expounded to the Court in the written pleadings of the Iwo Parties.
It ishowever, to the substance of the case that reference should be made which,
as paragraph 1of the Application indicates, is contained in Article 1,quoted in
that paragraph. On the other hand, it does no1 seem appropnate that ltaly
should comment on an aspect of the interpretation of the Agreement, which is
an agreement between the Parties and which concerns the task assigned to the
Court. Whether the judgment sought is 10 be more or less specific cannot
determine the question whether a legal interest of Italy may be afkcted by a
decision in accordana with the substance of the matter submitted by the Parties
to the Court. The comments made in this connection in the Application432 CONTINENTALSHELF
illustrate what a disruptive influence participation by Italy would have on the
conduci of ihc cme.
13. As regards Italv's"interest ofn Icxal naturc". ltalv hm long beeii awae of
ihc 1x13ané lia tic\& ihoughi fit, untiÏthc ~~~licaiiot;.1,put ïùrwnrd a ;lalm
ng2iiiii I .bva ~ùrrtsponding Io thc claim now hiiiied ai in the Application (scc
paras. 3 and 4 above). Lib~a is not awarc of any intere\t of Iialy in the area of
ionŒrn in the present case.
14. The very vagueness of the daim now hinted at by Italy suggests that it is
no1 one which could properly be the subject of intervention by ltaly in the
present case. To try to deal with Italy's contentions in this connection is like
rhadow-boxing. For example, in paragraph 6, it relies on the undoubled fan
ihat Italy is a State in the Central Mediterranean but does not explain how, in
relation10Libya, ltaly can be regarded as a "coastal State" with respect to areas
of continental shelf lvine no1 between ltalv and Li~ ~ ~ut between Malta and
Libja. In the circumsianccs of the gcographical situation.~~it~is \cry difficult io
sw uhat çonncction there could hc hctwcen the distancc IO which ltaly refcrs
(namely 400 nautical miles)and any such areas.
15. It is no1sufficient that ltaly considers ("estime') that it has an interest of
a legal nature which may be affected bythe decision in the case: il is for the
Court Io decide, in accordance with Article 62of the Statute, whether there is a
legal interest within the meaning of that Article. As the Court obsemed in
paragraph 17of its 1981Judgment on the Maltese Application for permission to
intemene :*under paragraph 2 of Article 62 it is for the Court itself to decide
unon anv reauest for vermission to intervene under that Article". The Court at
tir samc tim; emphasiled "thai ildocs not consider paragraph 2 to confer upon
itony gener~ldiscretion IO accept or rcjcct a request for permissionIO intervenc
for reasoni sim~lvof policy". On the contrary. the Court look the vieu,thai ihc
task entnisted io it by that paragraph was.to determine the admissibility or
otherwise of the request by reference to the relevant provisions of the Statute.
Hairing regard to the views expressed by the Court, the mere fact that ltaly
consjdcrs that it ha soine illdeiïned rivhts in arcas which mieht be affect4 bv
rhr jud?nient of [lie Cùiirt in thc prcscntcase is noi rufficie&ijuiiiiy ihc grhn<
JI pcrni.s<ioiiio iiiiervtnc in that casc Merely to cal1the inieresi "spccifi: anA
direct"? as is dont in paragraph 13 of the Application, docs not curc the real
defect in thc Application which appears in particular lrom paragraphs 8. 9
and IO.
16. In paragraphs II to 13 of the Application. there is a sublle slide frum
"considcrs" 10 "uiideniable righrs". It starts, in paragraph II, by staling that
Italy conrjders that it haï undcniable rights and ends, in paragraph 13, with thc
assenion lhat "Italy docs possess . .. an interest which isapcciiic and direct".
This allcgcd intcrcst. which has been undeiïned and unidentified. is put forward
as lhc vcry rcason for the Applicalion which "dctcrmines the object thereof'.
17. This process of slide involvcs assertions which are open 10 serious
question. Without any explanation, it is asserted that ltaly has a legal interest
"which is indisputably 'en couse' in the case". This assertion is unsound in the
light of the Special Agreement between Libya and Malta which only puts in
issue rights and claims as between Libya and Malta and no1 any right of Italy.
However far the Court may go in determining how the principles and rules of
international law should be applied by the Parties in drawing the delimitation
line, no nght or title of ltaly need be in issue. Bearing in mind the express
provisions of the Special Agreement, there is equally no basis for the assertion
that the "predetermined line ... would defacto and dejure effect the attribution
io the Parties of the areas of continental shelf 10 be delimited by that line", as OBSERVATIONS OF LlBYA 433
alleged in paragraph 12 of the Application. Italy also purports to support its
assenion by rcfcrmce to intervention'in procedural Iaw", of which ltaly rcgards
ils prcscnt application a "classic case". Thc appeal to "procedural law" is
equaUyunsound. Thm isno precedent for the grant of pcmission to intervcnc
in the practice of the International Court under Article 62. The analogy with
~)~sternof municipal law is misleading, since those systems are based upon
compulsory jurisdiction.
18. It thus appears that the Application fails to satisfy the first test of
showing that there is a legal interest of ltaly which may be affected hy the
Court'sjudgment in the present case. Since, by paragraph 13,it is said that the
alieged interest determines the ohject thereof, il follows that Italy would, on
the basis of iü own Application, fail to establish the precise ohject of the
intervention.
Ill. THE-PUECISE OBIECI-ALLEGED INhALY'SAPPLICATIO TNO INTERVENE
19. Article 81, paragraph 2(b), provides that the application "shall set ou. ..
the arecise obien of ihe intervention". In other words. it is no1enouah for the
~p~licant to boint to its legal interest in the case: th= exact purposë which it
seeksto achieve through the intervention must also he indicated. In paragraphs
14to 17,the ~~~licationpurports to meet this requirement, but fails to do so.
20. Paragraph 14 adds nothing to what is said in the preceding paragraphs
and resto sn the iil-founded assumption that the specification of the object of
the intervention need no1 be more than a simple allusion to the object of the
~aw -~--~- and to~-he leeal interest that mav he affected hv the Court's decision.
21. Apparently, pa;agraph 15 tries io link the Cprecise object of the
intervention" to the competence given to the Court by the Special Agreement.
However, the ~~~licatio-ndoes not explain what relevance, if any, the latter
ouestion bears toihc formcr~
-~---- --~. ..
22. In parograpb 16,the vagucncss and the amhivalcnce of Italy's position is
Iully revealcd. On the one hand, ltaly contends that thc object of ils application
is"to ensurc the defence beforc thczourt of ils intcrcst of a lepal natur..."
2nd to "par1i:ipaiîin the procrrdingr to the full cxtcnt neçessary io cnabl11io
deiend the nghi- uhi~h il çlaims ovcr some of the arra? claimed by the Parties.
and IOso~if) thc tBosiiionof those areas " 011the othcr hand. Iialv declarcs
lhat th&= a&ions'arc underiaken "so that those principles and rules und, in
particular, lhc practical method of applying them are no1 determined by the
Coun without awareness of that intcrest, and lo ils prcjudice" and 'so that the
Court rnaybc as lully informcd as possible ar 10 thc nature and scopc of the
righrs of Ital.. .Y
23. These indications arc so bluired and ambiguous that thcy aeem to fall
undcr ihc niLingof the Coun concerning Malta's application Io intervene:
"[Ilidoes not appear to the Court that the direct yet limited form of
nanicination in the suhiect-matter of the oroceedines for which Malta here
Seeks&mission co~ld~~ro~erl~be admiircd as fal2ng within the terms of
the intervention for which Article 62 of the Statute provides. What Malta
in effect xeks to secure by its application is the opportunity to argue in the
orewnt case in favour of a decision in which the Court would refrain from
ad&iing a~dapplyingparticular criteria that it might otherwise consider
appropriatt for the delimitation of the continental shelf of Libya and
uni si n.short, it seeksan opportunityto submit arguments to the Court434 CONTINENTA SI. ELF
with possibly prcjudicial effects on the interests either of Libya or of
Tunisia in thcir mutual relations with one another. To allow such a form of
'intervention' would.in thc particular circumstanccs of thc prcsent case,
also leavethe Parties quitc unccrtain as to whcthcr and how far they should
consider their own separatc legal interests vis-à-vis Malta as in cllcct
constitutine oart of the subiect-matter of the oresent case. A State seekin~
io intewene'under Article '62of the Statute ;s, in the view of the court:
clearly no1 entitled to place the parties to the case in such a position, and
this the more so since ii would not be submitting its own claims Io decision
by the Court nor be exposing itself to counter-claims." (I.C.J.Reports 1981,
pp. 19-20,para. 34.)
24. Paragraph 17 of the Application States that Italy "will submit to such
decision as the Court may make with regard to the rights claimed by Italy, in
full conformity with the terms of Article 59 of the Statute of the Court". No
doubt Italy has added this expression of willingness10abide by the decision of
the Court with regard to the rights claimed by ltaly in an attempt to avoid the
fate of the Maltese Application. Nevertbeless, the statement in questionisso
vague that it does not alter the fact that the Parties are still left, in the Court's
words. 'quite uncertain as to whether and how far they should consider their
own separate legal interests vis-à-vis [Italy] as in effect constituting pan of the
subject-matter of the present case".
25. In any event, as already pointed out above, jus1 as in the case of ihe
application by Malta to intervene in the TunisiaLiby aase, so here in the legal
sem. the judgment of the Court would not and could not prejudice any interest
of Iiaiy(I.C.J.Reports1981,p. 20,para 35).Acsordingly,the soleobjectthat might
remain would be to make the Court aware of Italy's interest. Indeed, it may be
that this isthe true objed of the present Application. If so, it is not an Application
in respect of which permission to intewene should be granted under Article 62.
26. If, however, ltaly really wished to submit to adjudication its claims
againsi Libya(and Malta), intervention would not be the proper process. Such a
siep would have the cffect of widening to a yet unspecified degree the scopc of
the case rcferred Io the Court. It would also delay and disrupt procecdings
which have already progrtssed to the stage where Counter-Mernorials have ben
cxchsngcd, and would involve disadvanrage for thc Partics who havc brought
thcir disputc before the Court bv Succial Agrccmcnt. In LibyaS vicw. the
appropriate course would bc for ilal; to scckto cxplain ils vccws - and il
ncccssary to present its claim- in ncgotiations with cithcr Malta or Libyaas
the cw mas be.
27. It ihus appelirs from the foregoing paragraphs that the ltalian Application
fails tu mcci thc tcst of a precise object within the requirements of Ar81cof
thc Rulm in thc light of thc 1981Judgment.
IV. THEALLEGED BASISOFTHECOURT'S JURISDICTION
28. This auestion is dealt with in oaraeraohs 18to 23 of the Application. 11is
related to the other aspects of the iqueit ior intervention, liay recognizes.
sinceparagraph 23 repeats the ambiguous statement that
"once admitted 10intervene under Article 62, ltaly intends to participate in
the proceedings to the full extent necessary to defend and implemeni its
nghü. To that extent, ltaly would thus he subject to the obligations
resultingfrom Article 59."436 CONIINENTAL SHELF
under Article 36. aaranraoh 6. docs not imolv that the Court is also comment
io pronouncc upon tKc Acrits of the casi '~hereis nothing in ~rticle.62 Io
suggesl that thc general requirement of consent is ovcrridden hy ils provisions
aiid wrlainlv not in cascs where parties corne to thc Court by wav of a Special
Agremcnt bctwccn them. In shoit, the idea of allowingthird $tates to intervene
as parties without a basis ofjunsdiction is beyond contemplation.
32. The contentions made hy ltaly are also inconsistent with Article 81,
paragraph 2 (c), of the Rules. Indeed, if they were tme, they would make tbis
clause meaningless. Since the Application is required to set out "any bask of
jurisdiction which is claimed to existasbetween the State applying to intervene
and the parties to the case", this must signify that Article 62 does not in itself
"create the basis of jurisdiction". Italy tries to hrush asidc this inescapable
conclusion by remarking that the Rules "could not make the admissibility of an
application for permission to intervene subject to legal conditions not laid down
in the Statute" (para. 19),that the wording of Article 81 "in no way implies an
intention to impose. ..an additional condition for admissibility" and "that that
phrase does no more than lay down a mere requirement for information to be
supplied with a view 10 fuller knowledge of the circumstances of the case"
(para. 20). But these observations are merely begging the question and do noi
expound the reason for which the Court wishes to be inforrned of the basis
ofjurisdiction.
33. The Court itself has explained why it inserted the provision regarding
jurisdinion in Article 81, paragraph2:
"This it did in order to ensure that, when the question did arise in a
concrete case, il would be in possession ofal1the elements which might be
necessaryfor its decision." (I.C.JReporrs 1981,p. 16,para. 27.)
Il will be noted that this explanation is quite different from the one offerd in
paragraph 20 of the Application which curiously refers to paragraph 17of the
Court's 1981 Judgment. In any event, the adoption of paragraph 2 (c)dws
suggcst that, in the Court's vicw, if would consider the bosis of jurisdinion
'when the question did utise inO concrelecase". andil clearlv docs here if one
aasumn inat Italy intends IO bccorne a Party. ltaly dors noi-deny that Anicle
AI.parkgraph 2 (cl, is in conforniity with Article 62 of the Statute. Therrlorc,
iht a>>ertionthai Article 62 iiielf çrçates a basis for iurisdiciion falls of itr oun
weight.
34. Thc Application is perhaps trying to raisc a slightly differenl point when
il saysthat
"the ltalian legal inicrcst which maycertainly bc aifccted[by the decision1
.. .and the dbjcct of the presenl application ... are automatically, and in
accordancc with the Statute of the Court. creative of iurisdiction of the
Coun io thc extent necesary to justify the adrniqcionof italy to panicipate
in the present procccdingsa.an intervener"(para. 21).
T~L %roposition no1only coniradicts the basic pnnciplesrrfcrred to above.ilalso
disre~ards the fact that the proceedinas have bccn initisted bv Libva and Malta
and relate onlv. in the co&t9s wordi. "Io the matters submitted.to the Coun
in the Special Agreement concluded bitween those States and onwhich itsjuris-
diction in the present caseis based"(I.C.J.Reports 1981, P. 20,para. 35).If ltaly
werenowto submit ils ownclaimsaeainst either of the Pariies. it would thus. with-
oui iheir consent, cxtcnd the scopèof compctcncc created by the ~omprontü.
Thai is to ssy that the mcaning and the effcct of the treaty would be altcrcd b)
the unilateral action of a third Stair. This uould stand agdinst logic and rcdson. ORSERVATIO OFSI.IRYA 437
35. Tht Annlication makes no serious allcmot to establish a basis of
jurisdidon &'the prcsent casc. Although thc provisions of Articlc 1 of the
EuropcamConvention for PeacefulSeillementof Disputesof 29 April1957 are
ouottd in oaracra~h 22. no conclusion is drawn from those oiovisions. In
~hemrclvesiheyappear i& be irrelevant. In any event.they are noi oppotoblc
Lib)a which isno1a pany IOthe Europcan Convention. Finally, the reference
to mcmbershi~ in thc "ludicial community" cstablishcd by the Statute in
36. On the basis of the foregohg Observations, Libyarespectfully requests
the Court to decline to oermit Italv to intervene in the oresent oroceedinns
tetween Libya and al ta:ibyais, however,prepared to participatein any oril
heanng on the Italian Applicationthat mabeordered by the Coun and would
gladly-takc advantagc of such an opportuoity to present supplementary
explanations and arguments.
(Signed) AbdelrazegEL-MURTAD SIULEIMAN,
Agent ofthe SociaiistPeople's
LibyanArab Jamabinya. OBSERVATIONS BY MAI.TA
UPON THE APPLICATION BYITALY 'IO IN'IKHVENb:
1. These Observations are filed by Malta in response 10the Court's Order of
24 October 1983and are directed 10the Application for permission to intervene
made by ltaly on 23 October 1983.
1. Summnry
2. Malta'sObservations may he summarized as follows:
(1) Italy'sApplication to intervene is inadmissible.
11relates to a claim which ltaly has never before formulated and which even
now is so imnrecise that it is effectivelvdevoid of content. Moreover. with the
exception oiiwo areas (the area cas! oithe Pclagic Islands of Linosa and Lam-
pcd~sa and thc areas bciween Sicilyand Malta) whichare evidcntly unrelatcd to
and unaflccted by thc procccdinns between Libvaand Malta. the claim has not
been the subject-of aiy negotiai<ionwhich wodd identify its nature or jutify
Iialy in asrerting the existence of a dispute. For this reason alone, the Applica-
tion - even if il were not defective in other respects more closely relalIO
those provisions of the Statute and Rules of the Court which specificallyrelate
to intemention - is no1admissible.
(2) The same co"sidcraiionr rcgarding thc absence of any specific claim and
the non-cstoblishmcnt of anv disnuie betwccn ltalv and Malta also means that
the rquircments of ~rticle-81 6f the Statute and Article 62 of the Rules of
Court have not been satisfied. ltaly has no1 provided a sufficiently clear
identification of the interest which il claims may be affected by the decision in
the case between Libya and Malta nor has ilspecified in precisc tcrms, by
rciercnceIO any clearly idcntificd intcrcst, what thc objccl intervention is.
Morcovcr, ihc Italian Application appears to assumc that thc judgment of the
Cour1 in ihe case betwcen I,ibya and Malta will in xome way formally bind
Ilaly. Any ruch wsumption is wrong.
(3) Italy's previous inactivity in rçlation 10 the claim whiil now makcs
smcs to csrop or preclude it from now asscrtingthc claim against Malhy way
of an application to intcrvene.
(4) No jurisdictional link exisls belween Italy. on the one hand, and cithcr
Libya or Malta, on the othcr.
II. The Defects in the ltnlian Position
A. THE VAGUENES OSFTHE1TALlAN CLAlM
3. It must al the outset be observed that the Application provides only the
flirnsicstand mnst inexact description of Italy'sclaim to continental shelfwithin
the rclcvani arca.
4. The only concrete elements in the ltalian argument appear to be the
following:
(a) Italy isa coastal State of the central Mediterranean (para. 6); OHSERVATION BS MALTA 439
(h) the whole sea-bcd in the area is part of the continental shclf of the coastal
Statcs and comistr of areas of overlap of lhc rights of such States (p6):.
Tc) if the icst of natural prolongation is used, thc same conclusion may bc
reached: itbeing notcd that "Malia is on the continental plaliorm of Sicily"
(para. 7);
(d) "A glanΠat the map" shows that "a considerable area of the sea-bed of
that region . .. lies off the coasts of ltaly and to seaward of such coasts"
(nara. SI:
(e) 2 ~alti'is left "out of account" [!], a median line between the Italian and
Libyan land massesliesmarkedly to the south of Malta (para. 9);
v. the-use of the "~rooortionalitv" test as between ~ibva and Malta rninht
accord to ~ib~a'ceriain areas .north of a median lin; belween Libya &d
Itaiy (para. 10).
On the basis of these five points, the scantiness of which has in no way been
exaggerated by summarization, Italy contends that it has "undeniable rights"
@ara. i1).
5.Thii assertion prompts a number of questions: Rights to what? And on
what basis? Where is ihe identification by llaly of the exuct area to whichit lays
claim? When did Italy lay claim to the area (whatever it may be)? In what
documents did Itaiy give public expression to its claims? More particularly,
when did it bring the full extent of its claims to the attention of Malta and
Libya? Can Itaiy have hitheno been unaware of the possibly competing claims
of Maiia and Libya? What explanation can ltaly offer for its silenceon ail these
matiers (except its claims against Tunisia and the establishment of a line
ktweeo Sicilyand Maita and between Malta and the Pelagic Islands of Linosa
and Lampedusa) ove7a period of nigh on a score of years ?
B. THEABSENCEO FNY PRIOREXPRESSIO BNYITALY
OF ANY REI.E~APS CILAIMS
6. Il must. secondly, he notcd that Italy now seeksto asscn an interest in an
arca whcrci~ -i-~~-~nemr nreviouslv exDressed~ ~ ~terest to cither of the Parties
and that Italyh pusition, iii nfaim reievant to the ne4 Italian claim, has never
bŒn the subjcci of negolialion between ltaly and, al any rate, Malta.
7. ïhe txient to which there have been~diplomaticexchb aetgeesn ltaly
and Malta regarding thc limits of thcir respective claims to thc conrinental sheif
will prcssnrly k recailed1.II will bc sceii that thc discusçionuhavc been limited
to lhc arca of continental shcll lying between Sicilyand Malta and between
Malta and lhtPtlagic islands of Lampedusa and 1,inosa. Maltab underslanding
of the statc of discussions was publicly cxprcssed by Counsel on its bchalf
before the Couri on IY March 1981in conncction with Malta's application to
intemene in the LibyaJTunisia Confinenfol Shelfcase. ltaly is aware of that
statement, as appeam from the citation of it in paragraph 9 of Italy's present
application.
8. 1sisappropriate to quote here infull the relevant pan of the statement:
"Lastly, and in order to complete the picture, 1corne to relations with
Iialy. Italy declared its rights over its continental shelf in 1965.In 1965and
1969it addressed certain enquiries Io the Government of Malta and in 1969
proposed boundary talks. The Government of Malta replied in October
Thetcxtof ihcx exchangesisreproduccdinAnncxesI to22.440 CONTINENTA SLHELF
1969ihat it had no1yet completed the preparations necessaryIo enable il to
cnter into fruitful discussions. In July 1970 the Government of Malta
indicated to Italy that it was in u position to start talks und al about thc
samc time, on 17July 1970,the Government of Malta issucd a notice in thc
Molto Government Gazette indicating that the area between Malta and
Sicilyas far as 500 metres on the Maltese side of the median line was open
for tenders.
Bya note of 14 August 1970 the Italian Government indicated that if
would adopt the same course to the north of the median line, subject to any
adjustments that might be made in subsequent negotiations.
'lo further exchanees took dace between Malta and Italv until 1975.
In particular, ltZy did Aot inform Malta of the kcgotiation and
conclurton with Tunisia of the boundary agreement relating Io the arca to
the southwcst of Malia and covcrine the oosition of thc Italian islands of
Pantelleria, Lampedusa, Linosa and ~im~ione. But eventually Malta
becameaware of this Agreement from other sources.
It is desirable to interpose here a few words about the Italian-Tunisian
continental shelf delimitation of 1971. Ratifications were not exchanged
uniil6 December 1978,and the agreement only entered inIo force on thai
dale. Malta does not accept the validity of that pan of the delimitation
between Italy and Tunisia which brings within the area of the Tunisian
continental shelf parts of the sea-bed whichfall within the area of Malia's
continental shelf as delimited on the basis of the principle of equidistance.
This principle would be applied, in the present case, bymeasuring from the
island of Malta to the island of Kerkenneh. allowine a 12-mile bel1 of
territorial sea and continental shelf around thcltalian isïands of Pantellcria.
1-inosr~ndLampedusa. As can be scen from the map, the arcas claimed by
Tunü.a cncroach sianificantlv on the arca of Malta's claim. while the arca
claimedby Italy do& soto a iesserdegree.
To return to the course of negotiations in 1975,upon the initiative of
Malta, talks took place bctwccn llaly and Malta in thc course of which
Malta aresented to ltalv a draft aereement for the division of the
contin&ial shelf between-the two couilries on the bais of equidisiance.
withthe exception of thc Islands of Linosa and Lampedusa.
As regard; these islands thcy were to he accordcd a bclt of conlinenta1
shclt of13 nm radius. This proposal cchoed the solution adoptcd in respect
olthe islands in the Italian/Tunisian Agreement of 1971.
At a meeting on 19 June 1975 ihc Iialian Government rejected ihe
proposal of Malta regarding the Islands, claiming that the Islands wcrc
cniiiled to a full sharc of thc continental shclf lying bctwcen lhern and
Molin on the basis of cquidistancc. Malta insistcd that thcrc was a clear
distinction to be drawn betwccn the island of Malta. thc mctroooljtan
temtory of a State, and the ltalian islands, which are no more thaudntant
dependencies of the mother State.
Thal same meeting is important in another respect. The representative of
Iralv exolained that the soecial treatment accorded the Islands in ihc
11al;anlfunisian ~~reemeni reficîicd in part the fact that the islands uerc
sitting on thc cxtcnsion scawards of the Tunisian land mass - a factor to
which Tunisia attached imoortance in the L~bvan Tunisian case If that
should bc so, ilwould seem ihat anything that.ihe'~ourt may say an ihis
topic in thc main case would have somc dircct beanng on the rclationship
betu,eenMalta and Tunisia.
After this meeting three years passed without action on either side, untilthrcatcned the use of force against a drilling vcsscl nt work in thc Tcxoco
concession area. Malta asked Italy to providc protection for the ship which flew
the Iialian fiag and had an ltalian crcw. ltaly declined to take any action, saying
ihat Ihiswos an cxclusivclyMaltcsc-Libyan episode, whichdid no1touch Italian
interests at all.
(vii) On 16 March 1981 1,a few days before the commencement of the oral
hearings in the application by Malta to intemene in the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) case, Itaiy sent Malta a Note Verbale which .
arrived too late to be referred to in the statement quoted above, which refemd
to ihc existence of a provisional agreement on the use of the mcdian line
gcneraliy htween the coasts of Italy and Maita and thcn resemed thc right Io
ascertain in relation to eiaht areas "of the continental shelf situated lareelv in
lhc rone compriscd bctwcLnMalta and Sicily"wheiher ihese areas "are ak;ally
sit~ütcd in thc area ofthc continental shelf recogni?.edas belonging tu Malta by
tne aloresaid understandings". Thc cia-t arcas in aucriion are as deoicted on the
map attached as Annex 24.-
III. The Consequenca of the Above Defects
II. To the defects in the ltalian position just noted and to the failure of Italy
ewr previously to identify or present its claim in diplomatic negotiations it is
possible nowto attach certain consequences.
12. First, the ltalian application is inadmissible.
This defect is identified bv Malta as somethine which would affect the Italian
application even if (which.will preîently be &own not to be the case) the
application could be ceen in other respects to comply with thr requiremenis of
the Staiute and the Rules regnrding inicrveniion In other wordy. even ~fihere
were no question of intcrvcition in n case pending bctwecn two States, but
mcrcly on application by ltaly secking to institute on a bilateral basis
prmccdings cxclusivcly bctween ltaly and Malta rcgarding the dclimitation of
thc arcas of continental shelf appertaining 10 cach of thcm and cvcn if thcre
were no issue regarding a jurisdictional link bctween Italy and Malta for ihis
purpow, the application is one which would founder on the ground of
inadrnissibility. Tlie reason is that there is simply no evidence before the Court
that anv disüute Ilascorne in10 existence hetweën the oanies or. alternatiwl, .
thhl tht req"ir~ment of negotiation which muçi prccedéthe submission of any
d.rptiie(hnJ, c%pccially,n cuntincntal shelf bouiidar)~ ~ ~pute) IO the Co~n hh,
betn saliïficd.
And if an application were to be inadmissible in direct contentious
prooecdings instituted by one State against another a fortiori a comparable
applicaiion to intemene in proceedings commenced by agreement, and pending.
htween two States would beinadmissible.
13. The proposition that a dispute cannot be brought before the Court uniil
ils character and dimensions have been established by negotiation between the
States concerned is too wellestablished to require citation of authority.
Annex 14. . OHSERVATION BYSMALI'A 443
Ir. rrlai.on ta 3ispuie3regarding thc delimiiation of thc continrntal shelf. ihe
nerd for such priur nepoiiaiion is evrn more firnily eciablishcd. The Gencva
Conbcntion vn the C2ntinental Shclf 1958 lavsdown iii Articlr b the Dnmary
duiy of the partics to seek agrcement upon thc delimitation of the con.tincntal
shelf. The use of the adjective "primary" Io describe the duty of the parties
echoes the language of the Court in the North Sea Continenral Shelfcases when
ii sooke of "a ~rirnsrv ohlieation to effect delimitation bv.ae-eement" (I.C.J.
~ejorrs 1969. 42. 75.
14. The fact that Italy has not become a party to that Convention does not
diminkh the force of the requirement, which is also one of customary
international law. The Court emphasized this requirement later in the same
judgment :
"the parties are under an obligation to enter into negotiations with a view
to aniving aian agreement, and no1merely to go through a formal process
of ncgotiition as asort of prior conditionfor the automatic application of
a certain method of delimitation in the absence of agreement; they are
under an obligation so to conduct themselves that the negotiations are
meaningiul ..." (I.C.J. Reports 1969,at p. 47).
15. The existence of this requirement is confirmed by the Law of the Sea
Convention 1982.the terms of which ltaly has itself invoked in its Application.
Article 83 provides :
"1. ïhe delimitation of the continental shelf between States with
opposite or adjacent coasts shall be effected by agreement on the basis of
. international law, as referred to in Article 38 of the Statute of the
International Court of Justice. in order to achieve an eauitable solution.
2. If no agroiment ran bc reached u,ithina rcasonabie period oftimc, thc
States conarned shall rcsort io the proccdures providcd for in Pan XV.
3. Prndinp ;igrrtmeni m providrd for in paragraph 1, thr Siaies
concerned, in a ;pirit01 undetstanding and CO-opcra60n!hall make wery
effort to enter into provisional arrangements of a practical nature and,
during this transitional period, no1to jeopardize or hamptr the reaching of
the linal agreemcnt. Such arrangcmenls shall be without prejudice to thc
linal delimitation.
4. ~herc~thçre ii an agrcement in forcc hetween thc States conccrned.
quesiions rclating to the delimitation of the continental shclf shall be
determincd in ;ifcordance wilh the provisions of ~hatagreement."
16. Morcovcr, it may be observed thot cvcry continental shelf dclimitatioii
case which has bccn brought before the Court or been the subject of arbitration
hn! always been preccdçd by an extended period of dircct negotiation betwcen
the parties with a view to settling the controversy and, ultimately, when it
became evideni ihat settlement was unlikely, with a view to establishing the
limitsof the disoute.(See the narrative of the facts in the North Sea Conrinenral
Shercases. I~J. ~iporrs 1969. pp. 17-19; 41 Inrernational Low Reports, pp.
46-49; the AngbFrench Conrinenral Shelfarbitration (1977), 54 International
AU Re~oru, o. 36 and the Conrinenral Shel.I.unisial.ibya. Arab Ja. .hiriva)
case, IC.J .i~orts 1982,passim.)
17. In short, the application by ltaly does not fulfil the requirement of
admissibility which mut be satisfied in every case. There is nothing to suggest
thai itii requirement is any the less stringent in relation to an application to
intemene than it is in any other conteittious case before the Court.444 CONTINENTAL SHELF
8. ITALYS AYYLICA'I'I OONESPiUT SATISFY THE REQULREMENTS
OFTHE REI.EVAM ARTICLE SF THE STATUTE SND THERULES OF COUR7
IR. Articlc 6(1)of the Statute of tht Couri rcquires that a Statc opplyingto
intervene establish that "it has an interest of a legal nature which may be
affected by the decision in the case". In addition 10specifying that the applica-
tion shall indicate this claimed interest, Article 81 of the Rules requires that the
application shall set out "the precise object of the intervention".
1.TheApplication Does no: Sufficienlly Specijy the Nature
of the Ilalion Interest
19. The Italian application is tainted, effectivelyto the point of invalidity, by
the unccriainty and looseness of the ltalian position therein revealed. The Court
will recall the importance of certainty in this matter which it stresses in these
words in its judgment on Malta's application to intervene in the TunisiaILibyo
case:
"To aUow such a form of 'intervention' would in the pariicular
circumrtances of the present case, also leave the Parties quite uncertain as
to u,hether and how far they should consider their own separate legal
interests vis-A-visMalta as in effect constituting part of the subject-matter
or the present case."(I.C.J. Reports 1981.p. 20.)
ne concept of legal certainty, here invoked by the Court, is one whichIOsbe
found in many legal systems and can properly play an extcnded role in the
Court'sjurüpmdence.
20. While it is true that a pariy seeking Io intemene does no1h10eunfold
in its application the whole of its substantive case, there must test upon it an
obligation to identifv at least in outline the nature and extent of the interest
which ilseeks to proiect The applicstion of Malta in the Tunisra/Ltb)d casc
niade denuioc rfforlIOreveal to the parties thr cxtcot of Malta's ctniihc
continental shelf in ihe area In which .Malta thought that the Court's drrision
rnithr imoi-. uoon i& interest. Indeed. il can bc siid thai Malto wcnt as far as
io-kn>wicdgc al tlie lime ul'ihc claims of Libya and Tunisia cnablitto doin
cxp~unding positivcly the ooturc and exienr 115claim.
2. The sanie cannot bc said of Iialvtr nrereni auulicaiion In naranrmii II.
in support of its suggcstion that ihis'is "an absolutely cl&sicCase foi
iniervention". ltnly describes its situaasoone "in which the intervener relis
on nghtsas the truc dominus of the object which is disputed. or a pan thercof:
22.This contention appears defeclivc in a numbcr of respects. A mcrc
assenion or o title is not a sufficicnt basis for a party 10 claim a right of
interventionThe claim must, at thc vcry least, be supportcd by some prima
facie demonstration of its basis. Yet in this cas- as is shown in detail in
paragraphs 4 and 5 above - the Italian application does not specify even the
appraximate dimensions of the ltalian claim.
2. TheApplication Does no: SuffiEientlySpecijy
the Precise Objecrofthe Intervention
(a) ItaIy mmake"ohjecr"dependent upon "interest"
23. The ioadequacy of Italy's statement of its "interest of a legal nature"
sema also to undermine Italy'sstatement of the object of its application. This is OBSERVATION BY MALTA 445
said to kw"to ensure the defencr bclore the Court of ils interest of a legal
nature" bara. 16). By expressing ils object in tcrms of "the defence" of "ils
interest of a lcgal nalure" ltaly makes the former entirely depcndcnt upon ihc
validitv or the identification01the latter. If. as Malta has suaacsted above. there
has ken and remains insulticicnt spccification of the natureof Italy's inierest, it
follous ihai thcm is insufficientspecificalion of ils object.
(b) Iraiy's miwipprehension regarding rhe nature and effect of the Court's
eveniuai Judgment
24. ,Moreover, quite apart from the basic point of a logical nature made in
the preceding paragraph, Italy's statement of its objective is alfected by a far-
reaching misapprehcnsion of the nature of any possible impact which the
Court's evcniual judgment may have upon any claimed ltalian interest. There is
no way in which, even if Italy could show a sufficient legal interest in the
Libya(Ma11a case, ihat interest could be "alfected" by the decision in the case
(Art. 62(1)).
25. In paragraph 12 (2)of the Application Italy suggests that the line which
might be established on the basis of the Court's Judgment as between Libya and
Maita would *de facm and de jure effect the attribution IO the parties of areas
of continental shelf ta bedelimited by that Iinc". As 10this, Malta observes that
what may occur defacto can in no way prejudice Italy's legal interests - which
alone mav be invoked in this case. As to the de jure effect of the Court's
~ud~mei< that is ktirely controlled by the terms of Article 59 of the Statute of
the Coun. The Cari observed in its Judgme-t on Malta's application to
intervene in the TunisinlLibya case:
"The tïndings at which il [the Court] arrives and the reasoning by which
~i r~ ~ ~s th~~ findin-s in the case~bet~een Tunisia and L~ ~~ will
thereforc be incntably directcd cxclusively Io those matiers submitied to
the Coun in the Special Agreement concluded hetwccn thosc States and on
which its iuridiition in ihc orcsent casc is bascd. It follows that no
conz uamA or iiiierences may ~~~itirnatcl~ be drawn from those findings on
rhnr masonine:w.th respect ro righis or claims of oiher Statc, and panier to
the CU? "(1 C J. RPPOI~1 S981.p 20.)
26. The next subparanaph (para. 12 (3)) of the ltalian Application appcars
ta rcflcct s baic misundcrstanding of the position which would flow from a
dclimitation by Libya and Malla of their continental shelf houndary on the
basis of tht judgment to be givcn by the Court.
Such a dclimitation would no more affect Italy's rights lhan would a
delimitation rcachcd by I.ibya and Malta on thc basis of negotiation without
prior recriursc to the Court. The fact that Libya and Malta seek the assistance of
the Court in resolving a dispute which thcy scc as solely aflccting them cannol
giveItaly any betterright than it would have possessed individually against each
of them if they had no1sought judicial assistance in the solution of their dispute.
27. The Application Statesthat
"it would be difficult for Italy subsequently Io obtain recognition of its
rights, either by negotiation. . .or by proposing to submit the decision Io
the Court".
This consideration is not well founded. The use which Libya or Malta could
make of the Court's decision could be no greater than the scope of that decirion.
As the Coun will be doing no more than determining what are the existing
principles and mfs of international law, the principles and mles so found would446 CONTINENTA SHE1.F
prerumably in any event he opcrativc as between llaly on the one hand and
Libya and Malta rcspeclively on the other. Italy may not complain that thosc
with whom it disputcs titlc should rely on the law to support opposition IO
ltaly's clriims.Nor may Italy Saylhat sirnply because the Court is clarifying the
law this somehow gives Italy an "interest" in the dispute IO which the
clarification relates.
28. Yet again it is incorrect for ltaly to suggcst that in any subsequent
Iitigiiion hetwecn ltaly and either Malta or Libya the Court would "bc bound
b! ils previous iudarncnt". The Court would not be so bound - as Article 59of
the siatuie of ihe-Court expressly provides and as the Court has repeatadly
affirmed. (See especially Conrinenral Shelf (TunisialLibyan Arab Jamahiriya)
case, Appiicarion ro Inrervene, I.C.J. Reports 1981, p. 3 at p. 20, para 35;
Conrinenral Shelf(Tunisia/Libyon Arab Jamohiriya) case, I.C.J. Reports 1982,
pp. 42. 62, 91 and 93, paras. 33, 75, 130and 133(B) (I).) Similarly, the Court
of Arbitraiion in thc Anglo-French Continental Shelfcase said :
*TheCourt's Decision,it scarcely needs to be said, will be binding only
as between the Parties Io the present arbitration and will neither be bindin~
upon nor create any rights-or obligations for any third State, and iÜ
particular for the Republic of Ireland, for which the Decision will be ru
inter nlios acta. In so far as there may be a possibility that the two
suceessivedelimitations of continental shelf zones in this reeion. where the
-.
thrce Siates arc neighbours abutting on thc same continental shelf. rnay
result in somc overlapping of the zones, it is manifestly outsidc thc
cornoetence of ihis Coun Io decidc in advance and hvoothcticallv the lsaal
nroblem which mav then anse. Th~ ~ ~ ~ ~ ~ ~ ~d normaliv find &
appropriate solutih by negotiations directly between thc thpee Stata
concemed ..." (54Infernarional Low Reports, p. 38 ;and see also p. 118.)
29. In short, while Malta can understand that Italy may feel some concern
over the Drosoectof a iudicial statement of rules and nrincioles aoolicable to a
dijpu~ bçtu;co alt taand Libya, Malta io bound t;> obsémr tLt in fomd
irrms Itdj's position is cffcctivcly no different froni Malta's in relation IO the
TfoiLsralL~hyo casc Furthcrmore in substantiie terrns Italv'scase isevidentlv of
a diffeknt order to Malta's in vicw of the sttiking absence of evco any prima
facie widence to support the overlapping claims whicb ltaly now asserls in such
~ ~ ~
general terrns.
(cl Tk oBj~~' tf I/uIy'sAp~~i~!utiorris obscure
30. Laatly. Malta noies a censin ob5curity in the position adopted by Iiuly It
19nnt :.car (rom the Appl~~ation whcthcr Italywcks to intrrvcnc as a Party ur ~ -
not.
31. In paragraph 16the objecl of the intervention is stated as bcing
"to ensure the defence before the Court of its IItalv'sl i. >rest of a leeal
nature, so that those principles and rules and, in particular, the pracii&l
method of applying them are not determined by the Court vithout
awareness of that interest, and toits prejudice"
32. This statement appears to Malta to resemble the position which Malta
adooted in the Tunisioltib. .case. when Malta soueht to intemene in order IO
infirm the Couri of its views in respect ofsuch issues-inthat case as might aifen
its position in later, but geograpbicallyrelated, delimitations. Malta'sappl. .tion
io intemene was not accipted by the court.
33. However, inparagraph 17Italy adds a furtber element to its position:448 CONTINEN'IA SLELF
38. In these circumstanccs, so Malta suhmits. Italy's silence and inactivily in
the piut in relation to the claim it now advanccs can be seen as estopping or
precluding ilfrom putling forward ils prçscnt applicalion.
IV. Italy Hus no Jurisdictional Link with Either Party
39. Malta turns finally 10the basis of the Court's jurisdiction. The question
or the need for a iurisdictional link between an Aoolicant and either or both of
thc partic%is one'on which thc Coun has already'l;card ample argument in ihc
TunisialL~hya case and itis unnccessaryIO rcpcat ilhere. The only dcvclopment
since the argument in that case whicb it is appropriate to note now is the
rejection bythe Court of Malta's application in that case. II is true that this did
no1 formally involve a finding that in the absence of a jurisdictional link the
applicant could not succeed.(See thejudgments of 14April 1981,I.C.J. Reporrs
1981, p. 16,para. 27.) Malta suggests, however, that there is nonetheless 10 be
disŒrned in the Court's decision and in the separate opinions of a number of
judges an element of concern to protect the exclusivity of the relationship
beiween two States which by special agreement jointly submit a dispute to the
Coun, to preserve the bais on which that agreement was reachcd and to
safeguard the pnnciple that the Court's jurisdiction is based upon consent.
40. Without seeking al this point 10 enter into the substance of Iialy's
arguments regarding the jurisdiction of the Court, Malta notes that neither rhe
reference in the Application 10the operation of Article 62 of the Statuteof the
Coun nor the mention of Italy's acceptance of the compulsory jurisdiction of
the Court under the European Convention for the Pacific Settlement of
Disputes serves to establish a jurisdictional link between ltaly and either Malia
or Libya.
V,Conclusion
41. Malta respectfullysubmils lhat thc Court should find that the Application
of Italy for permission 10intcrvcnc cannot he graotcd.
(Signed) Fdgar Mizzi,
Agent of thc Republic
al Malta. ANNEXES TO THE OBSERVATIONSBY MALTA
Annex1
NOTEVERBAL EROMTHE EMBASS YF ITALYDATED 8 NOVEMBE1R 965
[Italian tex1not reproduced]
Annex1A
(Translationof Amx I)
NOTE VERBALE
The Embassy of Italy presents its complimentsto the Ministry of Common-
wealth and Foreign Affairs and has the honour to request the following
informatio:
(1) whciher Malta has acccdcdto the 1958GcnevaConventionsconcerningthe
extent of temtorial waters and the continental shelf;
(2)the limit cstablished for Maltese territorial waters and, if thcy exist, the
legislativcsourccs thereof;
(3) whciherthcrc arc Agreements betweenMalta and third Countrievconcerning
territsriwattrand relativerights, and thc continentalshelf.
The Embassy of ltaly is pleased with this opportunity Io renew to thc
Ministry 01Cnmmonweallh and Forcigii Affairs the expression of its highest
considcraiion
Ta'Xbiex,8 h'ovember1965.
Minisiry of Commonwealth andForcign Affairs,Valletta. CONTINENTA SLELF
Anncx 2
NOTE VERBAL EROMTHF MIYISTRO YFCOY~~~NWEAL ATDHFOREIGN AFFAIRS
DATED 31DECFYBER 1965
NOTE VERBALE
The Ministrvof Commonwealthand Foreien Affain orescntsits com~liments
to ihc ~rnhas;~ of ltaly and has ihc honour to inform the Embassyihat the
Govcrnmcm of Malta inlcnds to cany out. in thc ncar future, a survcyof the
continent3Jshelffor .hc.purposeof exploration andthe cexploitatiof
itsnatural resources.
The sumy will be carried out without any unjustifiable interfcrencewith
navigation,fishingor the conservationof the livingresourcesof the sea.
In the absence of an aereed houndarv line for the continental shelf Io the
nonh ofMalta, the hound&y willbe pro;isionally dcemedIo he the medianlie
between Malta and Italy. This provisional agreement is beinwithout
prejudiceto future discu&ionson the dcmarcacon of this boundary line.
The Ministry of Commonwealth and Foreign Affairs avails itself of this
opportunity to nnew to the Embassy of ltaly the assurance of ils highcrt
consideration.
31Dsember 1965.
The Embassyof Italy, Ta'Xhiex. Annex 3
NOTE VERBAL FROM THE EMBASS OFITALY DATED 27JUNE 1969
[Iraliorextno1reproduced]
Annex 3A
(Tramlarionof Annex 3)
NOTE VERBALE
The Embassy of Italy presents its compliments to the Ministry of Common-
wealth and Foreign Aifairs and has the honour Io inform that in the course of
an interministerial meeting held in Rome in the last fewdaysthe Italian side felt
thai it wouldbe onnortune Io nroceed to the necessarv delimitation of the
Lntinentishelf bei&o ltaly aLd Malta.
The Emhassy of Italy would therefore be grateful if the Ministry of
Commonwealth and Foreign Affairs would inform it. with courteous solicitude,
uhcthcr the Maltuc ~ovërnmerit is prcparcd Io rcrcive an Iialian dclcgation
cntrustcd with thc task of proceeding. in ihe intereri of hoih counines. to the
definicion ofsuch a dclimiiationSuchdclegarion would. if the Maltrsc
Govcrnmeni wrc Ii~vourableto the suggestion,~bercady to comc to Malta in
thc first tcn dqs of July next.
Whjlc swaiting to learn the evenlual decisions of thc Goverrrmtnt of Malta,
ihc Embassy of ltaly thanks and lakes the opportunity to rcncw to the Ministry
of Commonwealth and Foreign Affairs thc cxprcssion of its highest consider-
ation.
Malin, 27 June 1965'.
Ministryof Commonwealth and Foreign Aiiairs, Vallctta. CONTlNENTALSHELF
Annex 4
NO~EVERBALEFROMTHE EMBASS YFITALYDATED 17OCTOBER 1969
[Italian rexi nor reproduced]
Annex 4A
(TransIa~ionof Annex 4)
NOTEVERBALE
The Embassy of Italy presents ils compliments to the Ministry of Common-
wealth and Foreign Affairs and, with reference to the request made by Note
Verbale No. 2224 of 27 June las1concerning the wish expressed by the ltalian
side to start talks for the delimitation of the continental shelf, has the honour to
make known that the ltalian Government is prepared 10send to Malta its own
delegaiion as soon as the Maltese side declares its readiness 10commenΠthe
negotiations.
On this occasion, the Embassy of ltaly has the honour to state that it is the
uish of the Iialian side that Malta should not proceed with the publication of
the "notia" cnvisaged by regulation 4 (5)of the "Petroleum (Productinn)
Regulaiions. 1969': before the desired mccting between the two dclcgatihas
taken ulacc.
ln the cxprrtation ol ihe çùmmcnîcmrnt of puch dls~~sslons.iheEmba;,) ol
Ild.)ha6 rzceived instructions to give assuranse that, on the pari of Iilis,
intcndcd to keep inabeyancc:
(1) the publication of the data cunccrning petroleum explorations in the sheli
vflhc Maltese Channel:
(2) ihc acccptance of requests and permits for research in the aforesaid arcas.
Thc Embasv of ltalv would therefore be erateful to the Ministrv of
~ornmonweal~hand ~o&n Affairsiit could kake known,~with couri~ou
solieituûe. the darc on which the Govcrnmcnt of Malta dccms it possible to
initiate Lht negotintions in question and takes this opportunity 10-renew the
expression of ils highest consideration.
Malta, 17October 1969.
Ministry of Commonwealth and Foreign Affairs, Valletta. A'INEXESTO THE OBSERVATIO NYSMACI'A 453
Annex5
SUI t V~KBAL FROMTHE MISISTR YF COM!~OSWFAI. TI~FOREIGA NFFAIKS
DATED 23 OCTOBE1 R969
NOTE VERBALE
The Ministryof Commonwealth and ForeignAffairspresentsits compliments
to the Embassy of Itaiy and has the honour to refer to thenistry'sNote
Verbaleof evennumber dated8th July 1969and to the Embassy'sNote Verbale
Tio.3413 dated 17th October 1969reaardine talks ~rooosedbv the cornDetent
Itali~nauihoritier on rnattersconnecte; withihe ~oitin;nial ~helf.
The Minisiry would like in the first place to take this opponunity to assure
the Embassy that thismatter has been activelyengagingthe attention of the
Malta~~Govemment for some time. The Embassvwillno doubt amee that this
is an exerciserequiringvev clorcscrutiny and m;ch spadeworkbcïoitcan be
dccidcd io commencethe proposed talks. The Ministry isfullyconsciousof the
imoonance of iniiiaiine talks-with the ltalian Governm&nthe earliesDOS-
sibiebut islikewisealive Io the futility of having to commence talks which,
through lack oladequate preparation, would be bedevilledby tirne-wastingand
unnecesrary intemptions. Moreover, it is felt that the Embassy will surely
appreciate the fact that with the limited expertise at Ourdisposal on such an
intricateatter, a certain amount of reasonable delay should occur. However,
the preparatory x,oriswell in hand and information is now beingculled on
wme of the more cornplex aspects of the problem. In this context referenceis
made to this Ministry'sNote Verbale of even number dated 30th September
1969.
ln,the light ol the foregoingit willbe seenthat funhcislikel$0 occur:
however ihe Minisiry willnot fail to infom the Embassyas sasthe Maltese
Covernmcniis readyto participatein bilatcraldiscussions.
Yovrrequest noito publicizein Malta the "notice"contemplated by section4
(5) of thc'Petroleum (Production) Regulationu,1969"has becn rcfcrrcd Io the
cornpeteniMalitse authoriticsfor their attention.
Meanwhilethe Ministryhas taken good note of what is statinthe pcnulti-
maic paravaph of thc Embassy'sNote Verbaleof 17Octoher.
Thc Minisiry 01 Commonweallb and Foreign Affairs avails ilself of this
opportunity to rencw to the Embassy of llaly the assurance of ils highest
consideration.
23October 1969.
The Embassyol Italy,Ta' Xbiex CONTINEPSTS ALELF
Annex 6
NOTE VERBALF EROM THE EMBASSY OF ITALYDATED 22DECEMBER 1969
[Iialianrexrnorreproduced]
(Tr~mIarionof Annex 6)
NOTE VERBALE
The Embassy of ltaly presents its compliments to the Ministry of Common-
wealth and Foreign Affairs and, with reference to ils Note Verbale CFA
1624168of 30September 1969 concerning some cartographie information on
the Italian coastal lines has the honour to communicate that no regulation has
yet been adopted in ltaly for the determination of the base lines, in conformity
with the orincides containcd in the Geneva Convention of 1958 on the
~ernioria1'~ate;s and Contiguous Zonc.
Constqucntly thc ltalian base lincs from which the brcadth of ihc icrriiorial
watersis rneasured remain those svccified in A2tof the Naviaation Code,
i.e:the low-water mark of the cokt and the linesjoining the extrekeoroints
the Gulfs. inlets or bays whosccntrance is not wi20rnautical milc..
The Embassy of ltaly takes this opportunity to renew to the Ministry of
Coinmonwenlrh and Foreign Affairs the expressioilhighest consideration.
Mdta, 22Decembet 1969
MinistryofCommonwealth and Forcign Affairs, Valletta ANNEXES TO THE OBSERVATION RSMALTA 455
Aencx 7
NOTEVERBAL EROM THEEMBASS Y FITALYDATED 20JANUARY 1970
[ftalian rexrno1reproduced]
Annex 7A
(Tramlarion of Anne7)
NOTE VERBALE
The Embassy of Italy presents ils compliments to the Ministry of Common-
wealth and Foreign Affairs and, with reference to ils Note Verbale CFA
No. 1624168of 23 Onober 1969 concerning the Italian request to commence
bilateral talks for the delimitation of the continental shelf between ltaly and
Malta, wouldbe grateful to the said Ministry if it were to make known, with
courieous solicitude. the eventual decision taken on the matter by the
Govemment ofMalta.
The Embassy of Italy conveys its thanks and takes the opportunity to renew
io the Ministry of Commonwealth and Foreign Affairs the expression of iü
highest consideration.
Ministry oi'Commonu~alth and Foreign Affairs, Valletta CONTINENTA SHELF
KOTEVERBAL EROM THEMINISTRY OFCOMMONWEAL THD FOREIGNAFFAIRS
DATED 24 JANUARY1970
NOTE VERBALE
The Ministry of Commonwealth and Foreign Afiairs presents its compliments
to the Embassy of Italy and bas the honour to refer to the Embassy's Note
Verbale No.184 dated 21 January 1970enquiring about developments con-
cerning the proposed bilateral talks on the Continental Shelf between Malta
and Sicily.
The Ministry would like to assure the Embassy that evsrything possible is
being done to hasten matters. However, it is not envisaged that it will be
possible to commence the talks in the very near future. The Ministry will of
course inform the Embassy immediately there is an indication that the talks
would start within a specifiedperiod.
The Ministry of Commonwealth and Foreign Affairsvails itself of this
opportunity to renew to the Embassy of ltaly the assurance of its highest
consideration.
The Embassy of Italy,Ta' Xbiex Aenex9
NISE VERBALF EROM THEITALtAN MINISTR YF FOREIGN AFFAIRS DATED
29APRIL1970
[Ilalian rexi nor reproduced]
Annex9A
(Transiarionof Annex 9)
NOTE VERBALE
The Minktry of Foreign Affairs presents its complimentsto the Embassyof
Malta and has the honour to communicatcwhat follows.
With Notc Verbale of 24 Januaw 1970 (CFA. 1624168)addresseclto the
Italian Embassyin Malta, the ~altck ~inisiry of ~ommonkealth and Foreign
Aflairs confirmcdihc impossibility,for ihc Govcrnmentof Malta, io stan carly
neaotidtions~lih 1ia1)aimcda1the delimiiaiionof the conrinentalshclf
On ihc pan of ltal;. whileaccount is takcn of the tcchnicaldifficultieswhich
preveni theMalinc Governmcntfrom giving ancarly sian to the negotiations,
one cannoi but confirmthe inttrest in a rapid resolutionof the prohlem, also in
viewof thc lsws whichrepulatethesemattcrs in Italv.
IIIiheic cirrumsinncesïhc Iialian Govcrnment.@;nijinga dcfiniiiveagrrenieni
un the mdiier. conaidersthat a provisionalsoluiion is nrccsssry for tlle area of
mort imnied:ate ~ntcrcst.namelv. that beiween Malia and Sicilv whicliir iiot
dicctcd by particular proble& In this reupcct, the Italiah Government,
racdling what ai one lime had hccn proposed by the MalleseGovernmcnthy a
Note Verbalt 0131 Decembcr1965,considersas opporlune thai, limiiedly10the
above-mentioncd area. the mcdian line between thenorihern coasts of Malta
:ind the oppositc Sicilian coasis could bc consideredas thc provisional lin? of
deniarcarion, ana thi, uf course without prcjudiceIo futurediscussionsand wiih
reserrslions~anicularlv as regards the aforesaid line. for eventual corrections
- which would nrcsumsblv,b~ ~ ~ ~ere technicalnature - in rclarion 10the
dcliniL& agrceméntswhichcould bc madcduring ih:ncgoiiations.
Swh a provisional soluiion would cnablc thc Iwo Go\,ernmenis io procecd
without fuÏher delavs with the oublication of the data conc-rninathe areas in
questionand wiih thégraniing of liccnccsfor cxploration.
The Minisir) of Forcign Affairsavailsiiselfof ihis opponunity to prcscni io
the FrnbasryoI Malra the expressionof 11shighcsiconsiderarion.
Rome, 29April 1970. CONTINENTALSHELF
Annex10
NOTEVERBAL EROM THEEMBASS YF ITALYDATED II MAY1970
[Iialian rexrnor reproduced]
Annex 10A
flranslotion of Annex IO)
NOTE VERBALE
The Embassyof ltaly presents ils complimentsto the Ministry of Common-
wealth and Foreign Affairsand, in continuation of the conversationheldon the
morning of the 8th instant betweenthe Embassy'sCounsellorand MessrsBorg
Cardona and Bartolo, concerning the delimitation of the Italo-Maltese
continental shelf, has the honour to requcst the courteous interest of the
Governmcnt of Malta with aviewto givingduc consideration to the proposa1
made by Itaiy in the Note VerbaleNo. 07118745fomarded on 29 April last to
the Embassyof Malta in Rome and of which acopy is being transmittedfor al1
good purposes.
Whileawaitingto learn. with everycourteous solicitude,the point of
thc Molicsc Govcrnment. especiullyin so fur as concerns the possibiliry of
amvine at a delimitati-ncvcnorovisiona- of the Italo-Maltesecontincnial
shelf. the Embassyofltaly conGeYsits thanks and takes the opportunity to
renew inthe Ministryof Commonwealthand Foreign Affain the expressionof
iu highescinsideration.
Malia, Il May1970.
Ministry ofommonwealth and ForeignAffairs, Valletta. Annex 11
NOTEVERBALF E. OMTHEMINISTRY OFCOMMONWEAL ANHD
FOREIGN AFFAIRSDATED 30 MAY1970
NOTE VERBALE
The Ministry of Commonwealth and Foreign Affairs presents ils compli-
ments to the Embassy of ltaly and has the honour Io refer to the Embassy's
Note Verbale No. 1287,dated II May 1970,regarding the delimitation of the
coatinenial shclflying between Malta and Sicily.
The Ministry would inform that as during the next few weeks certain
members of theOiiCornmittee will be either awav from the Island on official
businss or heavily engaged in parliamentary affairs, il has no1 heen found
possible to arrangaemeeting between representatives of the Maltese and ltalian
Governmenü immsdiately.-
However, rhere is the possibility that a preliminary meeting betweenthe two
sides might beheld during the first half of July next. The Embassy may rest
assured that cverything possible isbeing done so that the meetingwilltake place
as scheduled.
The Ministry of Commonwealth and Foreign Affairs avails itself of this
opportuniiy to rmew to the Embassy of Italy the assurance of its highest
consideration.
30May 1970
The Embmy of Italy, Ta'xbiex. CONTINENTALSHELP
Annex 12
NOTEVERBAL EROMTHE MINISTR OFçOMMONWEALTHAND
FOREIG AFFAIR S ATED15JULY1970
NOTEVERBALE
The Miniitry of Commonwealth and Foreign Affairs presenis its complimenü
IOthe Embassy of Iialy, and has the hIOrcfeIOthis Ministry's Noie
Verbale of cven number dated 20 Mav 1970.concerninn thc delimitation of the
continental shelf bctween Malta and ~'icily.
The Miniury would Iiketo inform ihat ihe Government of Malta is no* ina
position to meet representatives of the Italian Government on the matter and
would welcomesuggestionsfor such a meeting to take place.
The Ministry of Commonwealth and Foreign Affairs avails itself of this
opportunity to renew to the Embassy of ltaly the assurance of ils highest
consideration.
The Embassy ofItaly, Ta' Xbiex. Annex 13
[Iralian rexrnor reproduced]
Annex 13A
flranslorion of Annex13)
NOTI?VERBALE
The Embassy of Italy presents ils complimentsto the Ministry of Common-
wealthand Foreign Aiîairs and has the honour Io acknowledgereceipt of Note
Verbale Na. 1624 of 15 July last, whereby information was given that the
Maltese authonties are nowin a position to meet Italian representatives with a
r,iewto examining the questions relating to the delimitation of the continental
shelfbetweenMalta and Italy.
Tbe Embassv of Italv. while assurine that it has bro-eht the above to the
knowlcdgcof iis ~oi~ehmcnt, resenes 70 communicatc thc oricntaiions of the
compclenr Italian authonties as to thc lime in which the aforcsaid contacts
could be started.
Moreover, the Embassyof Italy, with refcrcnceto Note VerbaleNo. 07118745
0129 Aprilfonvardtd to the Embassy ofMalta in Rome and with respectto the
measurts adoptcd by the Governmcnt of Matta and publishcd in the Official
Gazette of17Julir.hau thehonour to inform that the ltalian Government.in the
expcctauon nf a ielinicivagreement for the delimitationo811suhniarincareas
compnsed beiueen thc coasts of Malta and ihose of Iialy. ha$ dccidcd to
pcoceed withtht granting of permits for enploralion and exploitation withinthc
median line ol thc area between tht coans of Malta and thc coasts of Sicily,
wiih a rcservationhowwer for suchcvtntual adjustmentswhichmay be madeto
thesaid lincduring the negotiations.
Thc Embassy of Italy takes the opportunity IO rcnew to the Ministry of
Commonwcaithand ForcignAffairsthe expressionofils highea consideration.
Malta, 14Augun 1970.
Ministryof Commonwealthand Foreign Affain. CONïlNENïAL SHELF
Annex 14
NOTES OF MEETING BETWEEN AMBASSADOR VARVESI AND THE SECRETARY,
MINISTRY OFCOMMONWEAL TH DFOREIGN AFFAIRS , N 19JUNE1975
Mr. Ahela opened the meeting by stating that hetween 1965and 1970 ltaly
has been insisting to sign with Malta a protocol to divide the continental sheU
between the two countnes. Mr. Ahela stated that Malta was now prepared to
sign such a document. He pointed out that although the Iwo sides had noi in
lac1signed a protocol, nevertheless there waan agreement on the CO-ordinates
ol the line and hoth countries had nuhlished in their resnective offearcttes
concessions which came to within ~OO metres of the di;iding line to allow for
technical adjustments should cartographers find some inaccuracies.
Ambassador Varvesi confirmed ihat this was so and stated that Italy had no
objextion to signing a protocol hased on a median line demarcation. At this
stage Ur. Abela presented a draft Agreement for the perusal of Amhasrador
Varvesi.(Copy attached.)
Ambassador Varvesi stated that ltaly could not accept that the Islands of
Linosa and Lampedusa should only have a continental shelf limited to a circle
of 13nautical miles. He said that the two islands gave ltaly the righhaüf of
the continental shelf hetween Malta and these two Islands. He said that Italy
had always respected the islands and indeed the dividing line between Italy and
Spain had taken due account of the Balaenc Islands.
Mr. Abela ~ointed out that the agreement entered into between Italv and
Tunisia was hked on the principle of2 13-mileradius for al1the Pelagic 1;lands
except Lampione which had a 12-mile radius. Mr. Ahela stated that this must
have been in recognition of the fact that there were islands situated away from
the Metm~olitan arca and on thc contincntal shclf of another c~~~~ ~,~-~-~-~
wcrc similar situations such as the Island of Fernando Poo off thc Coastof Wcst
Africa It was inconceivahle that small islands with a limited population and
clearly no*formina uart of the land mass of the countrv Io which thev heloned
snouldenluy ihc &e nphrs a, sovcrcign indcprndcn~islands The East ofihe
Bblaenc I~lnnds\vas dllfcrcntIO thc islands of Linosa and Lampedusa bh.uusc
the Iormcr wcrc situatcd ncarIO Spain and whatever ha? bcen agrccd hctwccn
Itaiy and Spain in this regard could never be made to apply to this casc.
Ambassador Varvesi said that the settlement between ltaly and Tunisia was a
political package. ltaly hadagreed Io the 13-mileradius in rciurn for subsmntial
other concessions grantcd by Tunisia to Italy. Hc rccallcd that Signor Moro had
paid a visil to Tunisia and thc wholc packap was agreed upon during that visii.
This seltlment had sincc causcd thcm grcat trouble and today, five years aftcr
the signing of the agreement,it has not yet been ratified.
MI. Abela stated that he did not doubt Ambassador Varvesib words but he
had two important points to make.
The first point was that the Agreement itself stipulated that the rights for
canassions to bc issucd in terms of the demarcation lines were not affected bv
the process of ratification, and indeed it was difficult to undentand the effect of
the non-ratification if one existed. The second point was that he failed to see
how Iialy could possihly use two weights and Iwo measures in its approach to
what was essentiallythe same problem.
Ambassador Varvesi agrecd that lime was on the side of the Tunisians and AVKEXES TOTHF.ORSERVA'I'IO NYSMAITA 463
that it woutd bc impossible for ttaly not ta ratify thc agrccment. On the sccond
point he saw cenain differences. He said that the two islands concerncd wcrc
clcarly sitting on the cxltnsion seawards of the Tunisian land mass, but they
wcrc not sitlinn on thc cloneation of thc Maltcse land mass. This was ceo-
graphically illusrr~tcd by tli;(that the 200-nlctrc isnbsth was to thc ca.t
O( these islnnds. He said that during the ncgotiailnever occurred to thcm
that such a ~oliiical settlemcnt with Tunisia uould in anv wav preiudice their
mdian lineposition with Malta so much so that ltaly and ~ÜniSia-hadagreed
on a median line between them both to the north of the Island as well as to the
souih.
MI. Abela challenged this. He said that the Agreement indicated that there
was a median line to the nonh but the southern part stopped at the islands.
Ambassador Varvesi Etated that this was not so because he clearly recollected
thai the line was drawn southwards to a point equidistant from one of the
islands,he Tunisian coast and Malta.
Mr. Abela said that he did not manage to obtain either a chart or the co-
adinaies asthex were not puhlished and at any rate no agreement hetween
Italy and Tunisia could prejudice Malta's claims. He again reiterated that a
southern boundary was not indicated inthe main agreement.
Ambassador Vmsi said that he was prepared to make available a copy of
the chart and undenook to supply it the following Monday to OurAmbassador
-~~~~-~~~~
MI. Abela then askd the criterion on which the 13-mileradius was adopted.
Ambassador Varvesi siated that to maintain the principle they asked for one
mile more than the territorial waters. Mr. Abela stated that fiveiears back both
Italy and Tunisiaonly had six miles territorial water. After some hesitation
Ambassador Varveri raid that he could not remember whether at the lime there
was a six-mile limit or not.
Mr Abcla ihcn raid it was a big pity thai ltaly was taking this attitude with
Malia uhich would ~ncvitahlylcad to a dispute. Ambassador Varvcsi said that
ihc lint $tep uould be the studyinn of the element io bc loliowed hy another
visit to rxsmine thewholt thing objëctively.
Mr. Abela also askedwhcther it would bc possible to sign a prolocol on the
north/south dtmarcation line now and ncgotiatc and sign Iatcr an agreement
involving thce IWOislands. Ambiissador Varvcsi stated that this was not
possible.lndccd thcy had a similar problem with France and such a solution
was not acceptd by the Italian authoritics.
On thc following day, Mr. Abela contacled Ambassador Varvesi bcforc his
depanurc for Kome and rcquested in addition to the chart a copy of rhc
protocol showing ceordinatcs. Ambassador Vorvcsiagreed to Ihis.
DRAFT AGREEMENT BETWEET NHEGOVERNMEN OTFTHE REPUBLICOF MALTA
AND THE GOVERNMENTO THF REPUBLICOF ITALYKELATINC
10 1HtDELlMlTATlO OSFTHF COVTI\FSTAL SHtLt
BETWEET NHE TWO COUNTRIES
The Government of the Republic of Malta and the Government of the
Republic of Italy desiring to strengthen further the relations of good
neighbourhood and to strengthen the bonds of friendship between the two466 CONTINENTALSHELF
counirics have agreed to deiïne and lo draw up in the present Agreemeni the
principles aiid criteria for determining tht linc dividing the Continental Shdf
berween Malia and Italy
Article I
The boundary of the Continental Shelf appertaining to each of the
Contracting Parties is the median line every point of which is equidistant from
the poinu nearest to the base lines from which the breadth of the territorial
waters of Malta and Italy is measured, with the exception of the Islands of
Linwa and Lampedusa.
Article II
The delimitation of the Continental Shelf of the Islands mentioned in Article
I above is defined as follow:
(a) around Linosa, the delimitation towards Malta shall be constituted by the
portions of the outer line of circles of 13marine miles of radius of which
the centres are to be found on the littoral of this Island, which portioare
comprised within the intersection of this outer line on the one hand with
ihat of Lampedusa mentioned in paragraph (b) below and on the other
with the dividing line to be agreed between the Republic of Malta and the
Republic of Tunisia; and
(b) ponions oftheusouter line of circles of 13marine miles radius, and of which
the centres are to be found on the littoral of this Island, which portioare
comprised within the intersections of this outer line on the one hand x,ith
the outer line relative to Linosa and defined inparagraph (a)above and on
the other with the dividing line to be agreed between the Republic ofMalta
and the Republic of Tunisia.
Article III
An Italo-Maltcsc tcchnical commission shall be formed as soon as possible
%,iththc objcct of chaning on maps the median linc and the portions of the
outcr line detïned above and Io dctcrmim thc CO-ordinales of the points
constituting these lines.
This Commission shall, as far as possible, tcrminate ils work within throc
months commenoing from tht datc of thc present agreement.
The charis as wcll as thc definition of the CO-ordinales of the pointî
;on,tituting thr Iine~.which rhall have been esiabli$hed by the alorenieni oned
ic~hniral commission shall he autheniicated b) thç signature of ihe plenipoun-
tihrics of bah parties. tliey shall be annexed to the prcscnt Agrecment
Article IV
If lasers of natural resources extcnd beyond both sides of any part of the line
dividinp:the continental shelf appcrtaining to the Contractinp: Parties, with the
rcruli chat the resources in thit part of the shelf belonpiin to one of the
contracting partics could be exploiied on the side of the sh;li-belonging 10 the
other pany, the compcteni authoritics of the conirncting panies shall conrult
together $th a view 10reaching an agreement to determine ways and means to
exploit the said resources. AWEXES IO THE OBSERVATIONS RY MAI.TA
465
Pending the coming into force of the abovemenrioned agreement, eachparty
shdl ensurc that the exploitation is carried out in thc best conditions in
accotdance with aaccpled practicc.
Article V
ln the event of digreernent on the position of any installation or other
device in relation to the dividinn line. as established bv thc vrescnt Amecment.
the competent authonlies of thëcon~ractin~ panies sliall agree to detërmine in
uhich pÿn of the coniincntal shclfsuch installation or othcr dcvicc is situatcd.
Article VI
The prwnt Agreement shall bc rntificd according to the constitutional laws
of the contraciing parties and shall come into forcc on the date of the exchnngc
of the instruments of ratification. which shall take dace with the lcastdclav.
However, the two Governmenls may grant 'concessions for exploration
and/or exploitation of the mineral resources within their zones defined in
accordance with the abovementioned principles.
Done at ........... ,the ........... in two texts in the
..................... language, both being equally binding.
For the Government For the Government
of the of the
Republic of Maita Republic of Italy. CONTINENTA SllELF
Anntx 15
NOTE VERBAL EROM THEMISISTRY Ob COMMOSWEAL T~D
FOREIGS AFFAIRSDATED14NOV~MBE1 R975
NOTE VERBALE
The Ministry of Commonwealth and Foreign Affairs presents its complimcnrs
to the Embassy of the Republic of Italy and has the honour to state as follows:
Dunng the course of a meeting held in Rome on 17 Septembei 1975, His
ExŒllency Sig. Aldo Moro, Presidente del Consiglio, promised the Prime
Minister an early reply on the problems arising from the delimitation of the
continental shelf between the two countries. Subsequcntly, thc Secretas..
General of the Ministero degli Affari Esteri, during the couhievisit
between 31 October and 4 November 1975,informed the Prime Minister that
the Ambassador of Italy to Malta was fully hriefed on the matter and would
conduct the necessary negotiations with the Secretary, Ministry of Common-
wealth and Foreign Affairs. It was surprising to find that negotiations could
notnart immediately as the Embassy was not yet fully briefed.
ïhe Ministry of Commonwealth and Foreign Affairs regards an early
settlemcnt of this problem as being of fundamental importance to avoid the risk
of th's dispute becoming public knowledge, therehy impairing the excellent
relations that exist between the two countries.
The Ministry of Commonwealth and Foreign Affairs avails itself of thii
opportunity to renew to the Embassy of the Republic of ltaly the assurance of
ils highest consideration.
14 November 1975.
Embassy of thc Rcpublic of Italy, Floriana. ANNEXES TO THE OBSERVATION BS MALTA
NOTE VERBAL EROZ1THE MALTESE MlNlSTRYOF FOREIGN AFFAIRS DATED
25AUGUST1978
NOTE VERBALE
The Embassy of the Republic of Malta presents its compliments to the
Ministry of Foreign Affairsof the Republic of Italy and refers to previous Notes
verbales and othër corresoondenceandreoresentation on the subiect of the
ddmitation of the mntinéntal shelf of ~Gta and of Italy, as weli as to the
meeting heldon the subject.
Reference is also made to the draft delimitation agreement presented to an
Italian delcgation during the discussions held in Malta on 19and 20June 1975.
Itisnoted with concem that a long lime has passed since the last promise of
ao carly settkment of this question was made by the Government of Italy, and
that repeated requcsts for an earfy decision by the Italian Government have as
yet not round a favourable response.
Funher delays can only harm the excellent bilateral relations betwecn the two
countries and consquently the Government of Malta again requests the
Govemmeni of Itaiyio take the necessary steps to have the question resolved
amicably.
The Embassy of the Republic of Malta avails itself of this opportunity to
renew iothe Ministry of Foreign Al'fairsof the Republic of Italy the assurance
of its highat wnsideration.
25 August 1978
Miniitry of Foreign Affairs of th Rcpublic of Italy. Komc. CONTINENTA SHELF
Anntx 17
'IOTEVERBAL EROM THEEMBASSY OF MALTADATED25SEPTEMBER 1978
NOTE VERBALE
The Embassy of the Republic of Malta presents its compliments to the
Ministry of Foreign Affairs of the Republic of Itaiy and refers to its Note
Verbale No. 48~.78 of 25 Aueust 1978. solicitine e.rlv action the
delimitaiion of the Continental ~h&al tand of l&y
The Embassy of the Republic of Malta would bc grateful io learn what aclion
hasbecn taken and avails itsclf of this o~~onunitv to rencw in thc Ministn of
Foreign Affairs of the Republic of'italythe assurance of ils hiiest
considerarion.
25September 1978.
Ministry of Foreign Affairsof the Republic of Itaiy, Rome ANHEXES TO THE OBSERVATLONS BY MALTA
NOTEVERBALF EROM THE EMBASSO YFMALTA DATED 6NOVEMBE1R 978
NOTE VERBALE
The Embassy of the Republic of Malta presents ils compliments 10 the
Ministry of Foreign Affairsof the Republicof ltaly and has the honour to refer
to its Notcr Verbales Nos. 481178 of 25 August 1978, and 511178 of 25
Septembersoiiiiting early action on the delimitation of the Continental Shelfof
..- - -.-i-. .-.,.
Thr Embassy ofthe Republicof Malta would be gratefulto leam whetherthe
Ministry of Foreign Affairsof the Republic of ltaly is now ina position to put
forward any proposais, and avails itself of this opportunity to renew to the
hfinistry of Foreign Affairs of the Republic of Italy the assuranceof ils highest
wnsideratiw
Minry of ForeignAffairsof the Republicof Italy, Rome COMINEMAL SHELF
Annex 19
NUTEVERBAL EROM THEITALlAN MINISTR YF FOREIGN AFFAIRS DATED
16MARCH1981
[Italian text not reproducedj
Annex 19A
(Transiarionof Annex 19)
NOTE VERBALE
The Ministry of Foreign Affairs presentsils complimentsto thc Embassyof
Malta and refers to the problem of the delimitation of the continental shelf in
the Mediterranean.
As iswellknown, as far back asthe years 1965-1970,sinceit wasno1possible
for contingent technicalreasons to proceedIo a negotiateddelimitationof
the continental shelf between Malta and Italy, it had heen agreed that the
medianline betweenthe aforesaidcoasts be consideredas the provisionallineof
demarcationof the said shelf.
The Note VerbaleNo. 143164hy the Ministryof Foreign Affairs of Malta to
the Italian Embassyon 31 December 1965and that forwarded by this Ministry
to the Embassy of Malta on 29 Apnl 1970,are evidence of the provisional
chamter ofthe aareernentsreache"... without oreiudiceIo future discussions
and resewationsfor eventualcorrectionswith respecilo the aforesaid linc".
Recentlyinformation has been rcccivcd thai the Maltcsc Authontics have
issucd a cal1 for tcndcrs with the object of carrying out prospecting and
exploration for hydrocarbons in eight areaofthc continental shelf situatcd
largelyin the zonecomprisedbeiweenMalia and Sicily.
The Iialian Aulhorilies, having regard10the understandings rcachinthe
vears 1965-1970and 10the orovisionalcharacier of the samc. rcscrvcthc rkhi
iu aaçcrtoin,by an idcntifica~of thc aforcsaid exploration arcas. uhcthcr Ïnr
Sam arc actuall) situatcd in ihc area of the continenial %helfrecognihso
belongingto Malin bythe aforesaid understandings.
The Italian Authoritiesin anvscfeelthat it isadvisable-inorder to avoid
siiuxions uhrch could pre,udife Iialian intcresison the çoniinenial thelfio
Mediterranean - IOprocecd to a dcfinitivcdclimitationof thc rcspcctivcamas
of the continentalsheifthrough the appropnatc negotiations.
The Ministrvof Foreim Affairs wouldbe eratefulto the Embassvof Malta ifit
could beadviied of theiiews of the ~altes;~overnment on ~hcabovcmaitcrri
The Ministryof Foreign Affairsavails itselfof this opponunity Io prcsenito
the Ernbacsyof Malta the expressionof its highestconsideration.
Rome, 16March 1981.
Embassyof Malta, Rome. ANNEXES TO THE OllSERVATlON&SY MALTA 471
Annex 20
h'mE VERBALE FKOM THEEMBASSO YFMALTA DATED 6 APRIL1981
NOTE VERBALE
The Embassy of the Republic of Malta presents its compliments to the
Mininry of Foreign Affairs ofthe Republic of ltaly and has the honour, in reply
to Note Verbale No. 141/A/271 of 18Mach 1981,regarding the delimitation of
the Contintental Shclf, to refer to the Embassy'sNote Verbale No. 481178of 25
Augusi 1978wherein the Government of Malta had shown ils readiuess to start
negotiations..The'Embassy ofthe Republic of Malta would therefore be grateful
if the Minisiry of Foreign Affairs of the Republic of ltaly could suggest a date
in May for the commencement of these negotiations to enable this Embassy to
submit to the pertinent authorities in Malta.
The Embassy of the Republic of Malta avails itself of this opportunity to
renew to the Ministq of Foreign Affairs of the Republic of ltaly the assurance
of itr highert consideration.
Ministry of Foreign Affairs of the Republic of Italy, Rome. CONTINENTAL SHELF
Annex21
NOTE VERBAL ROM THE~TALIAM NINISTR OYFFOREIGN AFFAIRS DATED
10JANUAR1 Y983
[Irolianrexrnor reproduced]
Anneit21A
(Tramlorionof Annex21)
NOTE VERBALE
The Ministrv of Foreien Affairs of the Reoublic of Italv oresents its
complimentsto the ~mbaGy of the Republic of Malta and has'théhonour to
referto the problemof the delimitationof the continentalshelfin the area of the
central ~editerranean.
The liaIlan Governmcnt hasbccomcawarcof the decisionof thc Governmeni
ofthe Rcpublic of Malta and the Covernment of ihc Socialist People's Libyan
Arab Jamahiriva to submit to the Intcrnational Court of Jusiicc a question
concerning the-submarine areas in the ccntral Mediterranean which iertainly
involvesIialian interests.
For thisreason the ltalian Governmenrmakes exprçsurcscrvatioderinc,
at the time and inthc manner mosl appropriait, thc attitude it willdeemproper
io assumcin relation to and for thc purposcs of the protection of the lnwrul
Italian intcrcsts involved in thc question pending between the Govcmmcnt of
thc Rcpublic of Malta and the Government of the Socialist Pcoplc'sLibyan
Arab lamahiriya.
The Ministry of Foreign Affairs avails itself of lhis opporlunity to irncn.
to the Embassy of lhc Republic of Malta thc cxprcssion of its highcst
ainsideraiion.
Rome, IOJanuury 1983.
Embassyof tbc Rcpublicof Malla, Romc ANNEXES TO THEORSERVATlO NiSMAUA 473
Amcx 22
NGTEVERBALF EROM THEEMBASSO YFMALTA DATED~ MARCH1983
NOTE VERBALE
The Embassv of the Reuublic of Malta oresents ils comoliments to the
Ministry of ci@ ~ffair; of the ~e~ublic'of ltaly and refers to the Note
Verbaleof 103anuar~i1983conaming the delimitation of the continental shelf
inthecentral Medimean.
Thc Gorcrnmcnt of the Republicof Malta. whileapprcciating the concernof
theItalian Governmentin mattcrs affectingits lawfulintcrests,fails to sec how
thcse intcrcsü in the submarine areas of thc ccntral Mediterranean might need
ioix protected in consequene of the referenceto the International Coun of
Justice of qucriions mncerning the delimitation of the areas appertaining to
Malia and those appertainingto Libya.
The Maltew Government would be in a better position 10 give due
considerationio theservationscontained in the Note Verbale of!OJanuaty, if
theItalian Govemmentwereto throm.more light on the causesfor its concern.
The Embassy of Malta avails itsclf of this opporlunity to rencw to the
Minkm of Forcigomain the expressionof its highestconsideration.
2 March 1983
Ministry of Forei~ Allain, Rome. CONTINENTA L HELF
Annex 23
PETROLFUM (PRODUCTION) ACT 1918
CONTINENTAL SHELF ACT. 1966
and the
PETROLEUhl IPRODUCTIONI RECULATIONS 1%9
APPLICATION FOR PRODUCTION LlCENCElSl
ii~. AGlP MALT.A.LID.. . 505. .............
r2,,.DEMlKEXC.HC 50%
II,............................................
I Nir4.IBlb.CmvI11%ifull (4)..................... ............
2 1,IVlirrII >.<i<:ni.a.
REPUBLIC OF GERMAE
. lbia. OlE.".imd
T>hi
M L ..dnnxrc,
81,W-hm." torbaDlht' '"" U,"ir:iidiniddrru N.*mihl,
-, w* O,ih.
I ~lr -riti EclD1o EGID' AGlP MALTA LTD llaliar.
cl0 AGIP S.p. A.
t-Chairman' S. DONATO (MI) ITALS
Giuacppr =/a AGlP 5.p. R ltaliiir
BADQLATO S. DONATO(MII ITALS
Marco PlERl c/o ACIP 5.p. A. Itilian
5. DONATO IMlllFALI
T.E. RAGOKT51 e/o AG1P 5.p. A. ltelisr.
5. DONAT0 (MI1 1TALY .
DEMlNEX
Dr. Herbert 96. Grai Addf Srr. Ccrman
LOEGTERS 4 DUESSELDORF-GERM 'Y
IChairrnanl i . .
AGIP MALTA L?U . .
Ordinar? I h: 540,006 1 h: 20,000 i Ii! :O.OOC (one voie per
isnare
t I
DEMINEX I
Ordinal! ,DA: 50.000.000 DM 50.000.000 DM ~L.500.000 one vote per
:%ha*? l
a .- .......... - - . .... ...
II Aira:i copia ol annual reporrr and bahcc rnccrri0,Ihc ihrcr ?cars immc-
:dietcl? prrccoin: riiappliraricn.
i
ici nli .old~ner oino,1-r than 5% ~nnumberor ia1uc:o ln? cizrr 01rrpiial vhich
1har ken irmrd b? I~C Mdy eorporaic
~rnoyrnt 1 h.,iomibi01 boidcn%'
ilhl tnhai m nims d piu b>diriinIiI; Cm= 0,D0l.n:
. ~
I vf BA C W k.6. GILSEK- di*
KIRCHEK
1 WINTERÇ HALL A. G. KASSEL' dto. di".
! DEUTSCHE SCHACHT BAu Cmbh dm. dio.
1 LINGEN .
SAARBERCWERKE A.C. s>:
BRIIECKEK diri.
PREUSSAC A. G. HANNOVER dio.
:-
i
cUii01 r i ~ ~ ~~ut .mouni,.sur~ . *moun, ,sur*ioeirrr
.... .. ~ p ~
: AClP -TA LTD.
*one Pione : Piane
! DEMIKEX
: nmne None None 476 CONTINENTAL SHELF
.."1i1,11> 0, ,,.'.l*iyrlhlil,..-." ... ,- ..... np*inuii" .rin,J . *..;i .*
.GIP PIALTA LTD
SCe aL;ari,meni5
DLMIKE);
riIl prc.cni
3. Girr rtiercnrc nurnherlrl of rhr blocklri applied loi anan! ordrr of prefcrcncr
151. C~OIFC 2nd. choicc 3rd. choicc
blocbc. 1;. 13 and 16 blocbn. 12 and 13 blocks n. 12 and Ib
6. Alract dercripiton of xorh propiamme propared durin: thc exploration pharc and of
aov r~:il mrridcrriioiu lo & rrkcn inroaccount.
ProductionLicence LM3CQforuch blork.
B. Aflirh phovropv of receipt lor ke in TCSPCFI of o~lii*inl GCophy$~aI Dala -pur~oaxd,
IiWc kirtbv declare ihri the infornariopniusri *wu= or inncicdto thir application ia
SOmFt.
Th. OilDivirion. ISipnaiurelrl of duly iuLhoriicd oficerlr). and
'il? Miois? of Developmeni.
Merthnu Street, the capci- in xhich helrhcy qnls) rhould
VLIICITI.
Malia. berrstcdl. Annex24
MALTESECONCESS IO1974AND 1981AND
LIBYA-MALE TAUID~STAN LIEE
[Norreproduced.SV,Map 19.1 CONTINENTALSHELF
1, the undersigned, Edgar Mizzi, Agent of the Republic of Malta, hereby
certify thai the copies of the documents attached as Annexes 1 to 23 of these
Observations are accurate copies of the documents they purport to reproduce
and that where a translation of such document is attached that transiranon
accuraie translation of such document.
Thii 5th day of Deamber 1983.
(Signed E dgar Mizzi,
Agent of the Republic
of Malta.
Written Observations on the Application for Permission to Intervene (Libyan Arab Jamahiriya, Malta)