MOUNT KENYA UNIVERSITY SCHOOL OF LAW

PARKLAND CAMPUS

LAW OF THE SEA

BLW 4304

GROUP THREE CAT TWO

CASE CONCERNING THE CONTINENTAL SHELF

(LIBYAN ARAB JAMAHIRIYA/MALTA)

JUDGMENT OF 3 JUNE 1985

GROUP MEMBERS

GWANDARU MATHENGE BLAW/2017/ 62869

LUCY NJERI BLAW/2017/63142

MERCY NAMBO BLAW/ 2017/63615

FRANCIS NGIGI BLAW/43095/2016

OLIVER MUSA TANGARA BLAW/2017/63855

MACHARIA V WAMUYU BLAW/2017/62223

JOSEPH KISEMEI BLAW/2017/62961

SUBMITTED TO: Ms Nancy Mburia

DATE: 13TH AUGUST, 2019

Introduction

Maritime delimitation may be defined as the process of establishing lines

separating the spatial ambit of coastal State jurisdiction over maritime space where
the legal title overlaps with that of another State. The United Nations Convention
on the Law of Sea (hereinafter the “Convention”) provides for delimitation of the
continental shelf under Article 83 to the effect that, 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. Similarly Article 6 of the 1958 Convention on the Continental Shelf
provides for delimitation of the Continental Shelf between coasts with adjacent and
opposite coasts.

The development of modern jurisprudence in the field of maritime delimitation

commenced with the 1969 North Sea Continental Shelf judgment. 12 In this
judgment, the ICJ held that: ‘delimitation must be the object of agreement between
the States concerned, and that such agreement must be arrived at in accordance
with equitable principles’.

Facts of the case

This case, which was submitted to the Court in 1982 by Special Agreement
between Libya and Malta, related to the delimitation of the areas of continental
shelf appertaining to each of these two States.

In support of its argument, Libya relied on the principle of natural prolongation

and the concept of proportionality. Malta maintained that States’ rights over areas
of continental shelf were now governed by the concept of distance from the coast,
which was held to confer a primacy on the equidistance method of defining
boundaries between areas of continental shelf, particularly when these appertained
to States lying directly opposite each other, as in the case of Malta and Libya.

The Court found that, in view of developments in the law relating to the rights of
States over areas of continental shelf, there was no reason to assign a role to
geographical or geophysical factors when the distance between the two States was
less than 400 miles (as in the instant case). It also considered that the equidistance
method did not have to be used and was not the only appropriate delimitation
technique. The Court defined a number of equitable principles and applied them in
its Judgment of 3 June 1985, in the light of the relevant circumstances. It took
account of the main features of the coasts, the difference in their lengths and the
distance between them.

It took care to avoid any excessive disproportion between the continental shelf
appertaining to a State and the length of its coastline, and adopted the solution of a
median line transposed northwards over a certain distance. In the course of the
proceedings, Italy applied for permission to intervene, claiming that it had an
interest of a legal nature under Article 62 of the Statute. The Court found that the
intervention requested by Italy fell, by virtue of its object, into a category which —
on Italy’s own showing — was one which could not be accepted, and the
Application was accordingly refused.

ICJ TASK

Libya position

Even though the Court has not been requested by the Parties to draw the
delimitation line" as is evident from the Special Agreement, it has been invested
with the task of deciding what principles and rules of international law are
applicable to the delimitation between the Parties and how in practice such
principles and rules can be applied by the two Parties in order that they may, in
their subsequent negotiations, delimit without difficulty their respective continental
shelves. A-major component of the second task of the Court will be. in the view of
Libya to identify, to weigh and to balance up the relevant factors and
circumstances present in this case and to test the equitableness of the anticipated
result by the criterion of proportionality.

Malta’s Position

Malta's position regarding the task of the Court, and the difficulties it sees in this
connection with Libya's Submissions, appear to be tantamount to saying that,
unless the Court is requested to draw the precise delimitation line - as was the case
in the Anglo-French Arbitration and the Gulf of Maine case - or unless the Court is
to conceive its role as prescribing for the Parties a single method of delimitation
having the degree of precision of, for example. The equidistance method, the
Special Agreement cannot be carried out by the Parties in their negotiations
following the Judgment of the Court.

The Libyan “rift zone'' argument

The Court went on to consider Libya's argument based on the

Existence of a rift zone in the region of the delimitation from Libya’s Contention
that natural prolongation in the physical sense of the land territory into the sea is
still a primary basis of title to the Continental Shelf. It would follow that if there
exists a fundamental discontinuity between the shelf area adjacent to one party and
the area adjacent to the other party.

The Boundary should lie along the general line of that fundamental discontinuity.

According to Libya, According to Libya, in the present case there are two distinct
continental shelves divided by what it class the “ rift Zone” and it is "within, and
following the general direction of the rift that delimitation should be carried out.

The Court takes the view that, since the development of the law enables a state to
claim continental shelf up to 200 miles from its coast whatever the geological c
characteristic of the corresponding seabed and subsoil there is no reason to ascribe
any role to geological or geophysical factors within that distance.

Since in the Present instance the distance between the coasts of the parties is less
than 400 miles, so that no geophysical feature can lie more than 200 miles from
each coast, the rift zone cannot constitute a fundamental terminating the southward
extension of the Maltese shelf and the northward extension of the Libyan as if it
were some natural boundary.

Moreover, the need to interpret the evidence advanced for and against the Libyan
argument would compel the Court first to make a determination upon a
disagreement between scientists of distinction as to the more plausibly correct
interpretation n of apparently incomplete Scientific data , a positon which it cannot
accept. The court therefore rejected the rift zone argument of Libya.

ISSUES BEFORE THE INTERNATIONAL COURT OF JUSTICE

1. The delimitation of continental shelf areas as between Malta and Libya

2. the allegation of Libya's "acquiescence" in a median line
3. that equidistance and only equidistance can provide the basis for
delimitation in the present case
4. natural prolongation no longer has any physical content but has become
a purely "spatial" concept relating solely to "distance"

Determination of the ICJ

By 14 votes to 3, it states what principles and rules of international law are

applicable to the delimitation of the continental shelf between the two States,
and the circumstances and factors to be taken into consideration in order to
achieve an equitable delimitation.

1. The delimitation of continental shelf areas as between Malta and Libya

First, Articles 74(1) and 83(1) omit any reference to a method of

delimitation. In the absence of any method of delimitation, these provisions
are likely to remain meaningless in specific situations.

Libya’s Position in relation to delimitation

Libya contented that the court should adjudge and declare as follows:

1. The delimitation is to be effected by agreement in accordance with

equitable pnnciples and taking account of al1 relevant circumstances in
order to achieve an equitable result.
2. The natural prolongation of the respective land territories of the
Parties into and under the sea is the basis of title to the areas of continental
shelf which appertain to each of them.

3. The delimitation should be accomplished in such a way as to leave

as much as possible to each Party al1 areas of continental shelf that
constitute the natural prolongation of its land territory into and under
the sea, without encroachment on the natural prolongation of the
other.
4. A criterion for delimitation of continental shelf areas in the present
case can be derived from the principle of natural prolongation
because there exists a fundamental discontinuity in the sea-bed and
subsoil which divides the areas of continental shelf into two distinct
natural prolongations extending from the land territories of the
respective Parties.
5. Equitable principles do not require that a State possessing a
restricted coastline be treated as if it possessed an extensive
coastline.
6. In the particular geographical situation of this case, the application
of Equitable principles requires that the delimitation should take
account of the significant difference in lengths of the respective
coastlines which face the area in which the delimitation is to be
effected.
7. The delimitation in this case should reflect the element of a
reasonable degree of proportionality which a delimitation carried out
in accordance with equitable principles ought to bring about between
the extent of the continental shelf areas appertaining to the
respective States and the lengths of the relevant parts of their coasts,
account being taken of any other delimitations between States in the
same region.
8. Application of the equidistance method is not obligatory, and its
application in the particular circumstances of this case would not
lead to an equitable result.
 9. The principles and rules of international law can in practice be
applied by the Parties so as to achieve an equitable result, taking
account of the physical factors and al1 the other relevant
circumstances of this case, by agreement on delimitation within, and
following the general direction of, the Rift Zone.

Malta Position in relation to delimitation

1. The principles and rules of international law applicable to the

delimitation of the areas of the continental shelf which appertain to
Malta and Libya are that the delimitation shall be effected on the
basis of international law in order to achieve an equitable solution.
2. In practice the above principles and rules are applied by means of a
median line every point of which is equidistant from the nearest
points on the baselines of Malta, and the low-water mark of the
Coast of Libya.

The Court stated that an equitable result can be obtained first by drawing
between the 13" 50' and the 15" 10' meridians a median line, of which every
point is equidistant from the low-water mark of the relevant coasts of Malta,
on the one hand, and of Libya, on the other, and by then transposing this line
northwards by 18' so as to intersect the 15" 10' E meridian at a latitude of
approximately 34" 30' N.
2. The applicable principles and rules of international law

I. Natural prolongation

The two Parties agree that the dispute is to be governed by customary

international law. Malta is a party to the 1958 Geneva Convention on the
Continental Shelf, while Libya is not; both Parties have signed the 1982
United Nations Convention on the Law of the Sea, but that Convention has
not yet entered into force. However, the Parties are in accord in considering
that some of its provisions constitute the expression of customary law, while
holding different views as to which provisions have this status. In view of
the major importance of this Convention - which has been adopted by an
overwhelming majority of States - it is clearly the duty of the Court to
consider how far any of its provisions may be binding upon the Parties as a
rule of customary law.

For Libya, the natural prolongation of the land territory of a State into the
sea remains the fundamental basis of lega1 title to continental shelf areas.
For Malta, continental shelf rights are no longer defined in the light of
physical criteria; they are controlled by the concept of distance from the
coast.
In the view of the Court, the principles and rules underlying the régime of
the exclusive economic zone cannot be left out of consideration in the
present case, which relates to the delimitation of the continental shelf. The
two institutions are linked together in modern law, and one of the relevant
circumstances to be taken into account for the delimitation of the continental
shelf of a State is the legally permissible extent of the exclusive economic
zone appertaining to that same State. The institution of the exclusive
economic zone, with its rule on entitlement by reason of distance, is shown
by the practice of States to have become a part of customary law; and
although the institutions of the continental shelf and the exclusive economic
zone are different and distinct, the rights which the exclusive economic zone
entails over the sea-bed of the zone are defined by reference to the régime
laid down for the continental shelf. Although there can be a continental shelf
where there is no exclusive economic zone, there cannot be an exclusive
economic zone without a corresponding continental shelf. It follows that, for
juridical and practical reasons, the distance criterion must now apply to the
continental shelf as well as to the exclusive economic zone; and this s quite
apart from the provision as to distance in Article 76 of the 1982 Convention.
Within 200 miles of the coast, natural prolongation is in part defined by
distance from the shore. The concepts of natural prolongation and distance
are not opposed but complementary; and both remain essential elements in
the juridical concept of the continental shelf. The Court is thus unable to
accept the Libyan contention that distance from the coast is not a relevant
element for the decision of the present case.

II. Equidistance method

Malta's argument respecting the primacy of equidistance

Neither, however, is the Court able to accept Malta's argument that the
new importance of the idea of distance from the coast has conferred a
primacy on the method of equidistance for the purposes of delimitation of
the continental shelf, at any rate between opposite States, as is the case
with the coasts of Malta and Libya. Malta considers that the distance
principle requires that, as a starting point of the delimitation process,
consideration must be given to an equidistance line, subject to
verification of the equitableness of the result achieved by this initial
delimitation. The Court is unable to accept that, even as a preliminary
step towards the drawing of a delimitation line, the equidistance method
is one which must necessarily be used. It is neither the only appropriate
method of delimitation, nor the only permissible point of departure.
Moreover, the Court considers that the practice of States in this field falls
 short of proving the existence of a rule prescribing the use of
equidistance, or indeed of any method, as obligatory.

III. Equitable principles

The Parties agreed that the delimitation of the continental shelf must
be effected by the application of equitable principles in al1 the
relevant circumstances in order to achieve an equitable result. The
Court lists some of these principles: the principle that there is to be no
question of refashioning geography; the principle of non-
encroachment by one Party on areas appertaining to the other; the
principle of the respect due to al1 relevant circumstances; the
principle that "equity does not necessarily imply equality" and that
there can be no question of distributive justice.

IV. The relevant circumstances

The Court had to assess the weight to be accorded to the relevant

circumstances for the purposes of the delimitation. Although there is
no closed list of considerations which a court may invoke, the Court
emphasizes that the only ones which will qualify for inclusion are
those which are pertinent to the institution of the continental shelf as it
has developed within the law, and to the application of equitable
principles to its delimitation.

Thus it finds to be unfounded in the practice of States, in the

jurisprudence or in the work of the Third United Nations Conference
on the Law of the Sea the argument of Libya that the landmass
provides the legal justification of entitlement to continental shelf
rights, such that a State with a greater landmass would have a more
intense natural prolongation. Nor does the Court consider, contrary to
the contentions advanced by Malta, that delimitation should be
influenced by the relative economic position of the two States in
question.
V. Regarding the security or defense interests of the two Parties, the
Court noted that the delimitation which will result from the
application of the present Judgment is not so near to the Coast of
either Party as to make these questions a particular consideration. As
for the treatment of islands in continental shelf delimitation, Malta has
drawn a distinction between island States and islands politically
linked to a mainland State. In this connection the Court merely notes
that, Malta being independent, the relationship of its coasts with the
coasts of its neighbors is different from what it would be if it were
part of the territory of one of them. This aspect of the matter also
seems to the Court to be linked to the position of the Maltese islands
in the wider geographical context, to which it will return. The Court
rejects another argument of Malta, derived from the sovereign
equality of States, whereby the maritime extensions generated by the
sovereignty of each State must be of equal juridical value, whatever
the length of the coasts. The Court considers that if coastal States have
an equal entitlement, ipso jure and ab initio, to their continental
shelves, this does not imply equality in the extent of these shelves, and
thus reference to the length of coasts as a relevant consideration
cannot be excluded a priori.

VI. Proportionality
While considering that there is no reason of principle why a test of
proportionality, based on the ratio between the lengths of the relevant
coasts and the areas of shelf attributed, should not be employed to
verify the equity of the result, the Court States that there may be
certain practical difficulties which render this test inappropriate. They
are particularly evident in the present case, inter alia because the area
to which the Judgment will apply is limited by reason of the 1
existence of claims of third States, and to apply the proportionality
test simply to the areas within these limits would be unrealistic.
However, it seems to the Court that it can make a broad assessment of
the equity of the result without attempting to express it in figures. It
concludes that there is certainly no manifest disproportion between
areas of shelf attributed to each of the Parties, such that it might be
claimed that the requirements of the test of proportionality as an
aspect of equity are not satisfied.

Conclusion

In general, it can be observed that international courts and tribunals

normally attach more importance to geographical than to non-
geographical factors. 137 In particular, the configuration of the coast
plays an essential role in the process of maritime delimitation.
Proportionality comes into play in almost all judgments in this field.
Where islands exist in the delimitation area, legal effect given to those
islands will always be an important issue in the delimitation process.