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Continental Shelf (Tunisia/Libyan Arab Jamahriya)ICJ Reports 1982, p. 17

(Customary international law; principles applicable in the delimitation of continental

shelf)

37. For both Parties, the starting point for a discussion of the applicable principles and

rules has been the Court’s Judgment of 20 February 1969 in the North Sea Continental SheIf

cases. The Parties both take the view that, as in those cases, the delimitation in the present

case has to be effected

“by agreement in accordance with equitable principles, and taking account of all

the relevant circumstances, in such a way as to leave as much as possible to each

Party all those parts of the continental shelf that constitute a natural prolongation of

its land territory into and under the sea, without encroachment on the natural

prolongation of the land territory of the other”,

and that among the factors to be taken into account in the negotiations contemplated

between the Parties was

“the element of a reasonable degree of proportionality . . . 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” (I.C.J. Reports 1969, pp. 53-54,

para. 101 (C) (1) and (D) (3)).

38. The present case however illustrates how the application of the principles and rules

enunciated, and the factors indicated, by the Court in 1969 may lead to widely differing

results according to the way in which those principles and rules are interpreted and applied,

and the relative weight given to each of those factors in determining the method of

delimitation. Yet here also the Parties are, to a lesser extent, in accord: for both Parties it is

the concept of the natural prolongation of the land into and under the sea which is

commanding. Where they differ in this respect is first, as to the meaning of the expression

“natural prolongation”, that is to say by reference to what terrestrial unit (continental

landmass or State territory), and by the application of what criteria, it is to be determined

whether a given area is the natural prolongation of the one State or of the other. Secondly,

while there is also broad agreement between the Parties that a delimitation which leaves as

much as possible to each State those parts of the continental shelf that constitute its natural

prolongation will necessarily be in accordance with equitable principles, they differ in

particular as to the extent to which considerations other than the dictates of geography,

geomorphology and geology – and specifically considerations of equity – operate to determine

what is the natural prolongation of each State.

41. Both Parties consider that the “continental shelf” is an institution of international law

which, while it remains linked to a physical fact, is not to be identified with the phenomenon

designated by the same term – “continental shelf” – in other disciplines. It was the continental

shelf as “an area physically extending the territory of most coastal States into a species of

platform” which “attracted the attention first of geographers and hydrographers and then of

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jurists” (I. C. J. Reports 1969, p. 5 1, para. 95); but the Court notes that at a very early stage in

the development of the continental shelf as a concept of law, it acquired a more extensive

connotation, so as eventually to embrace any sea-bed area possessing a particular relationship

with the coastline of a neighbouring State, whether or not such area presented the specific

characteristics which a geographer would recognize as those of what he would classify as

“continental shelf”. This widening of the concept for legal purposes, evident particularly in

the use of the criterion of exploitability for determining the seaward extent of shelf rights, is

clearly apparent in the records of the International Law Commission and other travaux

préparatoires of the 1958 Geneva Convention on the Continental Shelf.

42. It will be recalled that the definition of the continental shelf in Article 1 of the 1958

Convention is as follows:

“For the purpose of these articles, the term ‘continental shelf’ is used as referring

(a) to the seabed and subsoil of the submarine areas adjacent to the Coast but outside

the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where

the depth of the superjacent waters admits of the exploitation of the natural resources

of the said areas : (b) to the seabed and subsoil of similar submarine areas adjacent to

the coasts of islands.”

While the 200-metre limit was chosen partly as corresponding approximately to the

normal outer limit of the shelf in the physical sense, the definition of the outer limit of the

shelf by reference to the possibility of exploitation of the sea-bed is clearly open-ended, and

emphasizes the lack of identity between the legal concept of the continental shelf and the

physical phenomenon known to geographers by that name. This definition, which was

according to its terms expressed to be for the purpose of a convention text, was considered by

the Court in its 1969 Judgment to have been one of those regarded in 1958 as “reflecting, or

as crystallizing, received or at least emergent rules of customary law relative to the

continental shelf” (I. C.J. Reports 1969, p. 39, para. 63). The fact that the legal concept, while

it derived from the natural phenomenon, pursued its own development, is implicit in the

whole discussion by the Court in that case of the legal rules and principles applicable to it.

43. It was the Court itself in its 1969 Judgment which gave currency to the expression

“natural prolongation” as part of the vocabulary of the international law of the sea. It should,

however, first be recalled that the geographical and other physical circumstances of that case

were different from those of the present case. In particular the whole relevant area of the

North Sea consisted of continental shelf at a depth of less than 200 metres. Secondly, it

should be borne in mind that, as the Court itself made clear in that Judgment, it was engaged

in an analysis of the concepts and principles which in its view underlay the actual practice of

States which is expressive, or creative, of customary rules. The concept of natural

prolongation thus was and remains a concept to be examined within the context of customary

law and State practice. While the term “natural prolongation” may have been novel in 1969,

the idea to which it gave expression was already a part of existing customary law as the basis

of the title of the coastal State. The Court also attributed to that concept a certain role in the

delimitation of shelf areas, in cases in which the geographical situation made it appropriate to

do so. But while the idea of the natural prolongation of the land territory defined, in general

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terms, the physical object or location of the rights of the coastal State, it would not necessarily

be sufficient, or even appropriate, in itself to determine the precise extent of the rights of one

State in relation to those of a neighbouring State.

44. Both Parties to the present case have in effect based their argument upon the idea that

because a delimitation should, in accordance with the Judgment in the North Sea Continental

Shelf cases, leave to each Party “all those parts of the continental shelf that constitute a

natural prolongation of its land territory into and under the sea” (I. C.J. Reports 1969, p. 53,

para. 101 (C) (I)), therefore the determination of what constitutes such natural prolongation

will produce a correct delimitation. The Court in 1969 did not regard an equitable delimitation

and a determination of the limits of “natural prolongation” as synonymous, since in the

operative clause of its Judgment, just quoted, it referred only to the delimitation being

effected in such a way as to leave “as much as possible” to each Party the shelf areas

constituting its natural prolongation. The Court also clearly distinguished between a principle

which affords the justification for the appurtenance of an area to a State and a rule for

determining the extent and limits of such area: “the appurtenance of a given area, considered

as an entity, in no way governs the precise delimitation of its boundaries” (I.C.J. Reports

1969, p. 32, para. 46). The Court is therefore unable to accept the contention of Libya that

“once the natural prolongation of a State is determined, delimitation becomes a simple matter

of complying with the dictates of nature”. It would be a mistake 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 extends, in relation to the natural prolongation of another State, just

so far and no farther, so that the two prolongations meet along an easily defined line. Nor can

the Court approve 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 the identification of

the natural prolongation as the identification of the natural prolongation is necessary to satisfy

equitable principles. The satisfaction of equitable principles is, in the delimitation process, of

cardinal importance, as the Court will show later in this Judgment, and identification of

natural prolongation may, where the geographical circumstances are appropriate, have an

important role to play in defining an equitable delimitation, in view of its significance as the

justification of continental shelf rights in some cases; but the two considerations – the

satisfying of equitable principles and the identification of the natural prolongation – are not to

be placed on a plane of equality.

45. Since the Court gave judgment in the North Sea Continental Shelf cases, a period has

elapsed during which there has been much State practice in this field of international law, and

it has been under very close review, particularly in the context of the Third United Nations

Conference on the Law of the Sea. The term “natural prolongation” has now made its

appearance in Article 76 of the draft Convention on the Law of the Sea. At this point, the

Court must thus turn to the question whether principles and rules of international law

applicable to the delimitation may be derived from, or may be affected by, the “new accepted

trends” which have emerged at the Third United Nations Conference on the Law of the Sea.

47. Article 76 and Article 83 of the draft convention are the provisions of the draft

convention prepared by the Conference which may be relevant as incorporating new accepted

trends to be taken into account in the present case. According to Article 76, paragraph 1, “the

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continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas

that extend beyond its territorial sea throughout the natural prolongation of its land territory to

the outer edge of the continental margin, or to a distance of 200 nautical miles from the

baselines from which the breadth of the territorial sea is measured where the outer edge of the

continental margin does not extend up to that distance.” That definition consists of two parts,

employing different criteria. According to the first part of paragraph 1 the natural

prolongation of the land territory is the main criterion. In the second part of the paragraph, the

distance of 200 nautical miles is in certain circumstances the basis of the title of a coastal

State. The legal concept of the continental shelf as based on the “species of platform” has thus

been modified by this criterion. The definition in Article 76, paragraph 1, also discards the

exploitability test which is an element in the definition of the Geneva Convention of 1958.

48. The principle that the natural prolongation of the coastal State is a basis of its legal

title to continental shelf rights does not in the present case, as explained above, necessarily

provide criteria applicable to the delimitation of the areas appertaining to adjacent States. In

so far as Article 76, paragraph 1, of the draft convention repeats this principle, it introduces

no new element and does not therefore call for further consideration. In so far however as the

paragraph provides that in certain circumstances the distance from the baseline, measured on

the surface of the sea, is the basis for the title of the coastal State, it departs from the principle

that natural prolongation is the sole basis of the title. The question therefore arises whether

the concept of the continental shelf as contained in the second part of the definition is relevant

to the decision of the present case. It is only the legal basis of the title to continental shelf

rights – the mere distance from the Coast – which can be taken into account as possibly having

consequences for the claims of the Parties. Both Parties rely on the principle of natural

prolongation: they have not advanced any argument based on the “trend” towards the distance

principle. The definition in Article 76, paragraph 1, therefore affords no criterion for

delimitation in the present case

61. The conclusion which, in the Court’s view, has ineluctably to be drawn from this

analysis is that, despite the confident assertions of the geologists on both sides that a given

area is “an evident prolongation” or “the real prolongation” of the one or the other State, for

legal purposes it is not possible to define the areas of continental shelf appertaining to Tunisia

and to Libya by reference solely or mainly to geological considerations. The function of the

Court is to make use of geology only so far as required for the application of international

law. It is of the view that what must be taken into account in the delimitation of shelf areas

are the physical circumstances as they are today; that just as it is the geographical

configuration of the present-day coasts, so also it is the present-day sea-bed, which must be

considered. It is the outcome, not the evolution in the long-distant past, which is of

importance.

70. Since the Court considers that it is bound to decide the case on the basis of equitable

principles, it must first examine what such principles entail, divorced from the concept of

natural prolongation which has been found not to be applied for purposes of delimitation in

this case. The result of the application of equitable principles must be equitable. This

terminology, which is generally used, is not entirely satisfactory because it employs the term

equitable to characterize both the result to be achieved and the means to be applied to reach

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this result. It is, however, the result which is predominant; the principles are subordinate to

the goal. The equitableness of a principle must be assessed in the light of its usefulness for the

purpose of arriving at an equitable result. It is not every such principle which is in itself

equitable; it may acquire this quality by reference to the equitableness of the solution. The

principles to be indicated by the Court have to be selected according to their appropriateness

for reaching an equitable result. From this consideration it follows that the term “equitable

principles” cannot be interpreted in the abstract; it refers back to the principles and rules

which may be appropriate in order to achieve an equitable result. This was the view of the

Court when it said, in its Judgment of 1969:

“it is a truism to say that the determination must be equitable, rather is the

problem above all one of defining the means whereby the delimitation can be carried

out in such a way as to be recognized as equitable” (I. C.J. Reports 1969, p. 50, para.

92).

71. Equity as a legal concept is a direct emanation of the idea of justice. The Court whose

task is by definition to administer justice is bound to apply it. In the course of the history of

legal systems the term “equity” has been used to define various legal concepts. It was often

contrasted with the rigid rules of positive law, the severity of which had to be mitigated in

order to do justice. In general, this contrast has no parallel in the development of international

law; the legal concept of equity is a general principle directly applicable as law. Moreover,

when applying positive international law, a court may choose among several possible

interpretations of the law the one which appears, in the light of the circumstances of the case,

to be closest to the requirements of justice. Application of equitable principles is to be

distinguished from a decision ex aequo et bono. The Court can take such a decision only on

condition that the Parties agree (Art. 38, para. 2, of the Statute), and the Court is then freed

from the strict application of legal rules in order to bring about an appropriate settlement. The

task of the Court in the present case is quite different: it is bound to apply equitable principles

as part of international law, and to balance up the various considerations which it regards as

relevant in order to produce an equitable result. While it is clear that no rigid rules exist as to

the exact weight to be attached to each element in the case, this is very far from being an

exercise of discretion or conciliation; nor is it an operation of distributive justice.

72. The Court has thus examined the question of equitable principles, which, besides

being mentioned in the Special Agreement as the first of the three factors to be taken into

account, are, as the Court has emphasized, of primordial importance in the delimitation of the

continental shelf; it has also dealt with the third of the factors mentioned in the Special

Agreement, the “new accepted trends” in the Third Conference on the Law of the Sea. The

second factor must now be considered, that of the “relevant circumstances which characterize

the areà”; and again, it is not merely because they are mentioned in the Special Agreement

that the Court must have regard to them. It is clear that what is reasonable and equitable in

any given case must depend on its particular circumstances. There can be no doubt that it is

virtually impossible to achieve an equitable solution in any delimitation without taking into

account the particular relevant circumstances of the area. Both Parties recognize that equitable

principles dictate that “the relevant circumstances which characterize the area” be taken into

account, but differ as to what they are. The Special Agreement moreover confers on the Court

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the task of ascertaining what are the relevant circumstances and assessing their relative weight

for the purpose of achieving an equitable result. It is evident that the first and most essential

step in this respect is to determine with greater precision what is the area in dispute between

the Parties and what is the area which is relevant to the delimitation.

73. It should first be recalled that exclusive rights over submarine areas belong to the

coastal State. The geographic correlation between coast and submerged areas off the coast is

the basis of the coastal State’s legal title. As the Court explained in the North Sea Continental

Shelf cases the continental shelf is a legal concept in which “the principle is applied that the

land dominates the sea” (I. C. J. Reports 1969, p. 5 1, para. 96). In the Aegean Sea

Continental Shelf case the Court emphasized that

“it is solely by virtue of the coastal State’s sovereignty over the land that rights of

exploration and exploitation in the continental shelf can attach to it, ipso jure, under

international law. In short, continental shelf rights are legally both an emanation from

and an automatic adjunct of the territorial sovereignty of the coastal State.” (I.C.J.

Reports 1978, p. 36, para. 86.)

As has been explained in connection with the concept of natural prolongation, the coast

of the territory of the State is the decisive factor for title to submarine areas adjacent to it.

Adjacency of the sea-bed to the territory of the coastal State has been the paramount criterion

for determining the legal status of the submerged areas, as distinct from their delimitation,

without regard to the various elements which have become significant for the extension of

these areas in the process of the legal evolution of the rules of international law.

74. The coast of each of the Parties, therefore, constitutes the starting line from which one

has to set out in order to ascertain how far the submarine areas appertaining to each of them

extend in a seaward direction, as well as in relation to neighbouring States situated either in

an adjacent or opposite position. The only areas which can be relevant for the determination

of the claims of Libya and Tunisia to the continental shelf in front of their respective coasts

are those which can be considered as lying either off the Tunisian or off the Libyan coast.

These areas form together the area which is relevant to the decision of the dispute. The area in

dispute, where one claim encroaches on the other, is that part of this whole area which can be

considered as lying both off the Libyan coast and off the Tunisian coast.

75. Nevertheless, for the purpose of shelf delimitation between the Parties, it is not the

whole of the coast of each Party which can be taken into account; the submarine extension of

any part of the coast of one Party which, because of its geographic situation, cannot overlap

with the extension of the coast of the other, is to be excluded from further consideration by

the Court. It is clear from the map that there comes a point on the coast of each of the two

Parties beyond which the coast in question no longer has a relationship with the coast of the

other Party relevant for submarine delimitation. The sea-bed areas off the coast beyond that

point cannot therefore constitute an area of overlap of the extensions of the territories of the

two Parties, and are therefore not relevant to the delimitation. In the view of the Court, in the

present context that point on the Tunisian coast is Ras Kaboudia ; on the Libyan coast it is

Ras Tajoura. The Court cannot, therefore, take into consideration such parts of the sea-bed of

the Pelagian Block as lie beyond those points. As for the boundaries to seaward of the area

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relevant for the delimitation, these are not at present material and will be considered only in

relation to the criterion of proportionality, for the purposes of which such boundaries will

have to be defined. The conclusion that these areas are not legally relevant to the delimitation

between the Parties does not however lead to the conclusion by way of corollary that the

whole area bounded by the coasts of both countries and by such seaward boundaries is

reserved in its entirety for division between Libya and Tunisia. As mentioned above, the

rights of other States bordering on the Pelagian Sea which may be claimed in the northern and

north-eastern parts of that area must not be prejudged by the decision in the present case.

81. 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 principle requiring all relevant circumstances to be taken

into account. Apart from the circumstance 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 intersection

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.

82. The absence of maritime boundaries formally agreed upon between the Parties

constitutes one of the difficulties of the present case, since the delimitation of the continental

shelf should start from the outer limit of the territorial sea, in accordance with a principle of

international law embodied in Article 1 of the 1958 Geneva Convention on the Continental

Shelf and Article 76, paragraph 1, of the draft convention on the Law of the Sea. Since there

has never been any agreement between Tunisia and Libya on delimitation of the territorial

sea, contiguous zones, exclusive economic zones, or the continental shelf, the undisputed land

frontier between the Parties established by a convention becomes a circumstance of

considerable relevance.

107. The Court is, however, of the view that these 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 delimited, it may, depending on the facts, be an element to be taken into

account in the process of weighing all relevant factors to achieve an equitable result.

133. A. The principles and rules of international law applicable for the delimitation, to be

effected by agreement in implementation of the present Judgment, of the areas of continental

shelf appertaining to the Republic of Tunisia and the Socialist People’s Libyan Arab

Jamahiriya respectively, in the area of the Pelagian Block in dispute between them as defined

in paragraph B, subparagraph (l), below, are as follows:

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(1) the delimitation is to be effected in accordance with equitable principles, and taking

account of all relevant circumstances ;

(2) the area relevant for the delimitation constitutes a single continental shelf as the

natural prolongation of the land territory of both Parties, so that in the present case, no

criterion for delimitation of shelf areas can be derived from the principle of natural

prolongation as such ;

(3) in the particular geographical circumstances of the present case, the physical structure

of the continental shelf areas is not such as to determine an equitable line of delimitation.

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