In Libya v. Tunisia Continental Shelf case, unlike most previous cases, where one party to the litigation argued for equitable principles and the other party for equidistance, in the present case, both parties strongly endorsed the use of equitable principles, and both denied the mandatory applicability of the 1958 Convention’s equidistance rule. The parties also took the same task in trying to utilize the principle of natural prolongation and in attempting to list all relevant circumstances. The parties did disagree, however, on what was the true concept of natural prolongation and what were the relevant circumstances.
On 10 June 1977, Libya and Tunisia entered into an agreement for submission to International Court of Justice of the question of the delimitation of continental shelf between the two countries. Under the special agreement, the Court was requested to declare what principles and rules of international law might be applied for the delimitation of each State’s continental shelf and to clarify the practical method of their delimitation. Under Article 1, paragraph 1 of the special agreement, parties requested the Court to state the principles and the rules of international law which might be applied for delimitation of the areas of the continental shelf respectively appertaining to each of the two States. The parties further called upon the Court, in rendering its decision, to take account of the following three factors: (a) equitable principles; (b) relevant circumstances which characterize the area; and (c) the new accepted trends in the Third United Nations Conference on the Law of the Sea. Article 1, second paragraph required the Court to clarify the practical method for the application of these principles and rules so as to enable the experts of the two countries to delimit these areas without difficulties. The Court was, therefore, not called upon itself to draw the actual delimitation line.
Natural Prolongation
On the issue of natural prolongation, the parties agree that it is the concept of natural prolongation of land into and under the sea which is commanding. The parties, however, differ on the issue of criteria to be applied for determining whether a given area is natural prolongation of one State or another.
Libya contended, ‘the natural prolongation is determinable as a matter of scientific fact by the application of geological criteria, equitable principles should play no role in identifying appurtenant continental shelf based upon the juridical concept of natural prolongation.’ Furthermore, for Libya a delimitation which gives effect to the principle of natural prolongation is necessarily in accordance with equitable principles, since it respects the inherent rights of each State. On the other hand, Tunisia contented, ‘the satisfying of equitable principles in a particular geographical situation is part of the process of the identification of natural prolongation.’ The issue between the parties in this respect is whether a natural prolongation defined scientifically without reference to equitable principles is truly a ‘natural prolongation’ for the purpose of delimitation.
The Court rejected the arguments of both Libya and Tunisia. Reacting to Libya’s contention, International Court of Justice made the observation that it would be wrong to
suppose that it will in all cases, or even in the majority of them, be possible or appropriate to establish that the natural prolongation of one State, just so far and no further, so that the two prolongations meet along an easily defined line. The Court also apparently disapproved the argument of Tunisia that the satisfying of equitable principles in a particular geographical situation is just as much a part of the process of identification of the natural prolongation as the identification of the natural prolongation are not to be placed on a plane of equality. However, the subsequent part of Court’s judgment on the issue of ‘natural prolongation’, reveals that the Court has in substance accepted Tunisia’s contention.
It may be re-emphasized here that the Court rejected the concept of natural prolongation. It rejected the idea that natural prolongation provided a principle of general applicability, one which would provide, by itself a solution to all delimitation problems. The Court noted that geological information was not all that useful in setting precise boundaries. The Court stated that the physical factor of natural prolongation should not be considered as one which in and of itself granted legal title, but only to be considered in arriving at an equitable solution. Equity, according to the Court, was involved both in the process of delimitation and in its result. The Court emphatically stated that it was the result which was predominent. Principles were subordinate to the goal. The equitableness of any specific principles of delimitation had to be assessed in the light of the usefulness of that principle in achieving an overall equitable result. In this respect, the judgment of the Court in this case explains Court’s judgement in the
North Sea Continental Shelf cases wherein the Court did not draw a clear distinction
between result and the means. The usefulness of the case lies in its assertion of the equitableness of the ‘result’ rather than means.
In the process of arriving at the above mentioned conclusion, International Court of Justice referred to Article 83, paragraph 1 of the Draft Convention on the Law of the Sea which is synonymous to Article 83, paragraph 1 of the U.N. Convention on the Law of the Sea. Article 83, paragraph 1 reads as follows :
The 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 equitable solution.
It is important to note that the new text does not contain any specific criterion which could give guidance to the interested States in their effort to achieve an equitable solution which has to be achieved. The principles and rules applicable to the delimitation of the continental shelf areas are those which are appropriate to bring about an equitable result. It is pertinent to note that the new text did not affect the role of the concept of natural prolongation.
The Court, thereafter, tried to explain its views on the concept of equity. It noted that equity was often understood as an idea apart from law, indeed as a means to avoid or mitigate positive laws. But, it said, this was not the case in the realm of international law. According to Court, equity in international law was a general concept of law, directly applicable as law, taking into account the circumstances of the particular case. Since that which was equitable had to depend on the particular circumstances of each given case, the Court turned to a careful
assessment of the relevant circumstances submitted by Tunisia and Libya; the geography, geomorphology, land frontier, historic rights and economic considerations.
Relevant Circumstances
Both the parties recognize that equitable principles dictate that the relevant circumstances which characterize that area be taken into account but they differ as to what they are. The special agreement confers on the Court the task if ascertaining what are the relevant circumstances and assessing their relative weight for the purpose of achieving an equitable result. The Court has, therefore, to balance up the various considerations which it regards as relevant in order to produce an equitable result.
Tunisia submitted before the International Court of Justice that relevant circumstances to be taken into account included geological and geographical factors, economic factors, and historical factors. On the other hand, Libya’s conception of the relevant circumstances was stated in more restricted terms, namely, geological structure of the shelf and its relation to the adjoining landmass and the geographic configuration of the coasts as, a relevant circumstance to be taken into account.
Reacting to the above-mentioned contentions, International Court of Justice observed: The relevant circumstances which characterize the area are not limited to the facts of geography or geomorphology, either as a matter of interpretation of the special agreement or in application of the equitable principles requiring all relevant circumstances to be taken into account. Apart from the circumstances of the existence and interests of other States in the area, and the existing, or potential delimitations, between each of the parties and such States, there is also the position of the land frontier or more precisely the position of its inter section with the coastline, to be taken into account. In that connection, the court must in the present case consider a number of alleged maritime limits resulting from the conduct of the States concerned. It has further to give due consideration to the historic rights claimed by Tunisia, and to a number of economic considerations which one or the other party has urged as relevant.
Elaborating its observation, the Court noted that the parties were in agreement to take into account the element of proportionality, which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its coast measured in the general direction of the coastline.
In this case also, International Court of Justice considered that the element of ‘proportionality’ was indeed required by the fundamental principle of ensuring an equitable delimitation between the States concerned.
Another circumstance relevant for delimitation examined by the Court was the existence of an area off the coasts of Tunisia over which it claimed historic right deriving from long- established fishing activities. The historic rights claimed by Tunisia derive from the long- established interests and activities of its population in exploiting the fisheries of the bed and waters of the Mediterranean off its coasts; the exploitation of the shallow in shore banks for
fixed fisheries for the catching of swimming species, and of the deeper banks for the collection of sendentary species, namely spongs. The Court did not feel the need to make pronouncement on historical factors as in the opinion of the Court, the practical method for effecting an equitable delimitation adopted by the Court in this case did not affect the historical rights in the area claimed by Tunisia.
In this regard, the Court observed: ‘...it is only if the method of delimitation which the court finds to be appropriate is such that it will or may encroach upon the historic rights area that the Court will have to determine the validity and scope of those rights. If, however, the method of delimitation (adopted by the Court) is such that the delimitation line will undoubtedly leave Tunisia in the full and undisputed exercise of those rights over the area claimed to be subjected to them, then a finding by the Court on the subject will undoubtedly leave Tunisia in the full and undisputed exercise of those rights over the area claimed to be subjected to them, then a finding by the Court on the subject will be unnecessary. Such is in fact, in the view of the Court, the result of the method of delimitation (adopted by the Court).’ On the issue of the relevance of economic considerations, Tunisia invoked economic considerations in two ways; firstly by drawing attention to its relative poverty vis-a-vis Libya in terms of absence of natural resources like agriculture and minerals, compared with the relative abundance in Libya, especially of oil and gas wealth as well as agricultural resources; secondly, by pointing out that fishing resources derived from its claimed ‘historic rights’ and ‘historic waters’ areas must necessarily be taken into account supplementing its national economy in taking out its survival as a country. The Court held:
(T)hese economic considerations cannot be taken into account for the delimitation of the continental shelf areas appertaining to each party. They are virtually extraneous factors since they are variables which unpredictable national fortune or calamity, as the case may be, might at any time, cause to tilt the scale one way or the other. A country might be poor today and become rich tomorrow as a result of an event such as the discovery of a valuable economic resource. As to the presence of oil wells in an area to be taken into account in the process of weighing all relevant factors to achieve an equitable result.
The comment of the Court on equidistance principle is quite instructive. Commenting on the equidistance principle, the Court observed:
(T)he Court held in the North Sea Continental Shelf cases, which also concerned adjacent States, that the equidistance method of delimitation of the continental shelf is not prescribed by a mandatory rule of customary law. On the other hand, it emphasized the merits of this rule in cases in which its application leads to an equitable solution. The subsequent practice of States, as is apparent from treaties on continental shelf boundaries, shows that the equidistance method has been employed in a number of cases. But it also shows that States may deviate from an equidistance line, and had made use of other criteria for the delimitation, whenever they found this a better way to arrive at an agreement. One evolution may be combination of an equidistance line in some parts of the area with a line of some other kind in other parts, as dictated by the relevant circumstances. Examples of this
kind are provided by the 1977 Arbitration on the Delimitation of the Continental
Shelf between France and the United Kingdom, and by the Convention between France and Spain on the Delimitation of the Continental Shelves of the two States in the Bay of Biscay of 29 January, 1974. Treaty practice, as well as the history of Article 83 of the draft convention on the law of the sea, leads to the conclusion that equidistance may be applied if it leads to an equitable solution, if not other methods should be employed.