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On Zubiri: “We all know why we ran for Senate… so he can have a fling with Trillanes!”

A. StatesNote: regarding previous cases (i.e. Nicaragua, Anglo-Norwegian Fisheries, El Salvador v. Honduras, etc) which weren’t included here, if you want to get a copy of the digest, please tell Gem. This digest compilation wouldn’t have been possible without the help of Andi, Steve and Marco.

2. UNCLOS (UN Convention on the Law of the Sea)

Browlie Chapter IX: Territorial Sea, Contiguous Zones, and Exclusive Economic Zones

A. Territorial Sea

1. Introductory

WHAT A TERRITORIAL SEA IS. At the present time, all states claim to exercise sovereignty, subject to treaty obligations and rules on general international law, over a belt of sea adjacent to their coastlines. On its outer edge this belt is bounded by the high seas, and it is founded on a baseline, related to the low-water mark and, in certain conditions, to other phenomena, which serves to divide the territorial sea from the interior or natural waters comprised in rivers, bays, gulfs, harbors, and other water lying on the landward side of the baseline. The generally accepted term, employed in the most recent Conventions, is “territorial sea”; other terms include the “maritime belt,” “marginal sea,” and “territorial waters.” The language of the Convention on the Territorial Sea and the Contiguous Zone (entered into force 10 Sept 1964)1 [CTS] seems to assume that every state necessarily has a territorial sea; some jurists assert a doctrine of inseparable and natural appurtenance.

SOVEREIGNTY. Art. I of the Conv. on the Territorial Sea of 1958 expresses the generally accepted view, which is that states have rights amounting to sovereignty over the territorial sea. Art. 2 states that the sovereignty is exercised “subject to the provisions of these articles and to other rules of international law.” Thus it is clear that the limitations set out in the Conv. are not exhaustive. The sovereignty of the coastal state extends also to the seabed and subsoil of the territorial sea and the airspace over it. The Law of the Sea Convention of 1982 [CLOS] contains essentially similar provisions (Art. 2).

A HISTORICAL PERSPECTIVE: HOW TO MEASURE. In the 18 th century, extravagant claims to sovereignty over the seas were generally obsolete, or nearly so. Before the abandonment of such claims, and in some cases as a consequence of such abandonment, a test of appurtenance had to be sought. The Dutch jurist Bynkershoek (1702) propounded the doctrine that the power of the territorial sovereign extended to vessels within the range of cannon mounted on the shore. Originally, this doctrine

1 This was adopted, along with three other Conventions—on the High Seas, on Fishing and

Conservation of the Living Resources of the High Seas, and o the Continental Shelf—at the 1st UN Conference on the Law of the Sea in 1958. Only the Convention on the High Seas is “generally declarative of established principles of international law” but the Territorial Sea and Continental Shelf Conventions provide evidence of the generally accepted rules bearing on their subject matter.

seems to have rested on the control of the actual guns of ports and fortresses over adjacent waters; it was not at first a concept of a maritime belt of uniform breadth. However, in the latter half of the 18th century, several states laid down limits for belts for purposes of customs or fishery control, in legislation and treaties. Danish practice—which after 1745 was based on a 4-mile belt as the extent of sovereignty—had some impact on European thinking here.

2 DECISIVE DEVELOPMENTS in the last quarter of the 18th century: [A] the concept of a hypothetical cannon-shot rule, a belt over which cannon could range if they were placed along the whole seaboard. [B] As “cannon shot” was by no means a definite criterion, there were suggestions for setting up a convenient standard equivalent or substitute. 1782: Italian writer Galiani proposed 3 miles, or 1 marine league, and the diplomatic birth of the 3-mile limit appears to be the US Note to Britain and France of 8 Nov 1793, in which the limit was employed for purposes of neutrality. During and after the Napoleonic wars [ca. 1800-1815], British and American prize courts translated the cannon-shot rule into the 3-mile rule.

JURISDICTION TIES INTO SOVEREIGNTY. A significant aspect of the development of the law is the intimate relation between claims to jurisdiction for particular purposes over the high seas, and extension of sovereignty to a maritime belt. Some claims, e.g. those of Denmark and Sweden, though commencing as pronouncements for neutrality purposes, fairly soon developed into assertions of sovereignty, esp. when associated with exclusive fishery limits. In other cases, it remained uncertain whether a claim was only to certain types of jurisdiction, or was a general limit of sovereignty. What is certain is that claims to jurisdiction have always tended to harden into claims to sovereignty. This process was, however, arrested to some extent by general recognition of the basic legal distinction between territorial sea as an extension of sovereignty and special jurisdictional zones (later called “contiguous zones”) over the high seas.

2. Baseline for Measurement of the Territorial Sea

The normal baseline from which the breadth of the territorial sea is measured is the low-water line along the coast. This follows from the concepts of maritime belt and appurtenance, and corresponds with state practice. There is no uniform standard by which states in practice determine this line; Art. 5 CLOS defines the line “as marked on large-scale charts officially recognized by coastal states.” In the case of tideless seas, the baseline may be placed at the average waterline on the coast.

SPECIAL FOCUS: THE ANGLO-NORWEGIAN FISHERIES CASE. British fishermen have fished off the Norwegian coast since about 1906, and at various times, incidents led to diplomatic correspondence about Norway’s fishery limits. The Norwegian limit of 4 miles had been established by royal decree in 1812 and was not disputed in the case. However, later decrees (1869, 1881, 1889) and official explanations thereof continued the measure of 1812 in terms of a system of straight lines drawn from certain outermost points of the skjaergaard, or rampart of rocks and islands which fringes much of the Norwegian coast. By a decree of 12 Jul 1935, Norway applied the system in a more detailed way than before; the validity of the new limits was challenged by the UK. The UK took the case before the International Court, asking for damages for interferences with British fishing vessels. The Court held that the system

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of straight baselines following the general direction of the coast had been consistently applied by Norway and had thus encountered no opposition from other states. The UK made no formal and definite protest until 1933. Clearly the validity of the 1935 decree could have been upheld on the basis of acquiescence; indeed Judge Hackworth gave the existence of historic title on the part of Norway to the areas in question as a separate reason for concurring. However, while it is true that the Court refers to the absence of protest from other states and also to the consolidation of the method by a “constant and sufficiently long practice,” the Judgment as a whole holds that the Norwegian system of baselines was, as a matter of principle, in accordance with international law.

UNIQUE TOPOGRAPHY. In the case, the Court describes the topography of the mainland coast thus: “... it constantly opens out into indentations often penetrating for great distances inland... The coast of the mainland does not constitute ... a clear dividing line between land and sea. ...what really constitutes the Norwegian coastline is the outer line of the skjaergaard.” The problem concerns the baseline from which the breadth of the territorial sea is to be measured; while the parties agree that the criterion is the low-water mark, they differ as to its application. Ultimately it is held that the relevant low-water mark is the outer line of the skjaergaard, such solution being “dictated by geographical realities.”

METHOD TO USE. What method, then, to use to draw the baseline? Tracé parallèle, i.e. drawing a line that is the exact image of the coastline, assumed by the Court to be the normal method of applying the low-water mark rule, did not apply to the type of coast in question; in this case, the baseline could only be determined by means of a geometric construction. “The principle that the belt of territorial waters must follow the general direction of the coast makes it possible to fix certain criteria valid for any delimitation of the territorial sea... [I]n order to apply this principle, several States have deemed it necessary to follow the straight baselines method... they have not encountered objections of principle by other States. This method consists of selecting appropriate points on the low-water mark and drawing straight lines between them. This has been done not only for well-defined bays, but also in cases of minor curvatures of the coastline where it was solely a question of giving a simpler form to the belt of territorial waters.” The Court discounts the British contention that straight lines can be drawn only across bays. An argument that, in any case, the length of straight lines must not exceed ten miles was criticized: “[T]he practice of States does not justify the formulation of any general rule of law... Furthermore... it may be that several lines can be envisaged. In such cases, the coastal State would seem to be in the best position to appraise the local conditions dictating the selection. Consequently the Court is unable to share the view... that Norway, in the matter of baselines, now claims recognition of an exceptional system... [Rather, there is] the application of general international law to a specific case.”

CRITERIA FOR VALIDITY OF SUGGESTED DELIM SYSTEMS = certain basic considerations as to the nature of the territorial sea. (1) Because of the close dependence of the territorial sea upon the land domain, the drawing of baselines must not depart, to any appreciable extent, from the general direction of the coast. (2) A close geographical relationship between sea areas and land formation is a fundamental consideration in deciding whether certain sea areas lying within the baselines are sufficiently closely linked to the land domain to be subject to the regime

of internal waters. (3) The other consideration is that of certain economic interests peculiar to a region, the reality and importance of which are evidenced by long usage.

CONCLUSION. The method of straight lines was imposed by the peculiar geography of the Norwegian coast, and had been consolidated by a constant and sufficiently long practice.

3. Straight Baselines: Recent Developments

FISHERIES CASE AS PRECEDENT. Even if one regards the case as an instance of judicial legislation, and not an application of pre-existing principles to the special facts, its significance cannot be underestimated. The pronouncements on the straight lines method are intended to have general application to coasts of that type.

CONVENTION PROVISIONS. Art. 4 par. 4, CTS: Account may be taken of economic interests in determining individual baselines if the geographical criteria justifying straight lines are satisfied. Substantially the provision confirms the place of the principles of Fisheries in the law. Many states employ straight baselines which apply the Norwegian system or at least compatible with it, leaving aside certain extensive closing lines for bays and lines enclosing archipelagos. Art. 7 CLOS affirms the existing principles governing straight baselines; par. 2 deals with the problem of deltas and other unstable coastlines.

4. Breadth of Territorial Sea

BORING FACTS. 17th century: Several forms of limit are known, e.g. the range of vision on a fair day; the range of cannons on shore. Last quarter of the 18 th century: Cannon-shot rule obtains in some of Europe, but other claims rest simply on a belt with a stated breadth. 1793: Cannon-shot rule is first given a standard value (1 marine league, or 3 miles). 1862, probably earlier: Cannon-shot rule and 3-mile limit generally regarded as synonymous; original cannon-shot rule has become obsolete.

THE THREE-MILE LIMIT. Until the late 1980s [see below], the US and the UK supported the 3-mile limit and protested claims to a wider territorial sea. British adherence to the 3-mile limit was reinforced in the late 19 th century by the abandonment of a special customs and excise jurisdiction over zones beyond 3 miles and the embodiment of the limit in legislation. The 3-mile limit gained considerable currency in the 19th century, but the practice was far from uniform. Some states (e.g. France, Belgium) did not differentiate clearly in their practice between territorial sea and jurisdictional zones, claiming zones for particular purposes. Many states supporting a 3-mile limit claimed contiguous zones extending beyond 3 miles.

It was not until 1920 that claims to special jurisdictional zones were generally seen to be distinct from full claims to territorial sea. Thus the results of the Hague Codification Conference of 1930 evidence the role of the Conference and its preliminaries in crystallizing govt attitudes: Although most states favored a 3-mile limit, some also claimed contiguous zones. Through the course of the proceedings, the second committee said it preferred not to express an opinion on what ought to be regarded as the existing law; the Int’l Law Commission later indicated that most members did not regard the 3-mile rule as part of positive law.

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NOW, A TWELVE-MILE RULE. In 1970 the US adopted an Oceans Policy, one component of which was an effort to obtain international agreement on a maximum of 12 miles. Art. 3, CLOS: “Every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles.” The great preponderance of states has a 12-mile limit; this has been adopted by legislation in the UK and US in 1987 and 1988 respectively. Claims apparently in excess of 12 miles call for careful assessment; some of these are fishing conservation zones which have been wrongly characterized.

5. Baselines: Further Problems

BAYS: the closing line which leaves internal waters on its landward side and provides a baseline for delimiting the territorial sea. The drawing of a closing line is possible only where the coast of the bay belongs to a single state. To justify assimilation to the land domain there must be a certain degree of penetration. Art. 7 par. 2, CTS of 1958 & Art. 10 par. 2 CLOS provide a semicircle, or rigid geometrical, test of such assimilation.2

However, many say that this criterion is a necessary, but not sufficient, condition for the legal existence of a bay. There must be a “well-marked indentation with identifiable headlands,” but this “geographical test” itself begs the question. Gulfs, fjords, and straits, or parts thereof, are not excluded from the legal concept of a bay. The straight closing line applicable to bas is quite distinct from the system of baselines applicable in special circumstances. The aforesaid provisions concerning bays are not intended to introduce the system of straight lines to coasts whose configuration does not justify this.

It was asserted formerly that the closing line was limited to 10 miles, but practice was far from uniform. Fisheries case: “The 10-mile rule has not acquired the authority of a general rule of international law.” Art. 7 par. 4 Convention on the Territorial Sea of 1958 & Art. 10 par. 4 CLOS prescribe 24 mile. Coastal states may derive title to bays as a consequence of the system of straight lines approved in Fisheries where this is applicable. A considerable number of large claims related to “bays” are based on historic title.

BAYS BOUNDED BY THE TERRITORY OF 2+ STATES; and STRAITS. Although the issue has not been uncontroversial, Art. 15 CLOS (see also Art. 12 par. 1 CTS of 1958) probably represents the law as it has been generally understood.3

2 Art. 10 par. 2, CLOS: “For the purposes of this Convention, a bay is a well-marked indentation

whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.”3 Delimitation of the territorial sea between states with opposite or adjacent coasts. Where the coasts

of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.

OCCASIONAL ISLANDS. A formation, regardless of size or population, is an island if 2 conditions are satisfied: (1) The formation is natural, not an artificial installation; and (2) is always above sea level. Formations visible only at low tide (“low-tide elevations”) and permanently submerged banks and reefs do not in general produce a territorial sea as islands do. However, Art. 121 par. 3, CLOS4 does not represent customary law and has no retrospective effect.

LOW-TIDE ELEVATIONS. In 2 cases these formations are permitted to affect the limit of the territorial sea: (A) Straight baselines shall not be drawn to or from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them.5 (B) The low-water line on an elevation situated at a distance not exceeding the breadth of the territorial sea from the mainland or an island may be used as the baseline. Elevations not within the territorial sea have no territorial sea of their own.

NORWEGIAN ISLANDS / ROCK FINGERS may be included in the Fisheries system of straight lines.

ISLAND FRINGES TREATED AS NATURAL APPENDAGES OF THE COAST. Apart from coasts to which a system of straight lines may properly apply, considerable State practice supports the principle that, under certain conditions, coastal islands may be treated as part of the mainland. The principle rests on considerations of geographical association and appurtenance, and a few claims are supported by historic title and acquiescence. A baseline—not necessarily a straight line—is drawn in such cases from the low-water line on the seaward shore of the island chain. Such an approach could be justified as an application of the principles in the Fisheries judgment (in which the Court regarded the outer line of the skjaegaard as constituting a “whole with the mainland”).

GROUPS OF ISLANDS; ARCHIPELAGOS. Claims to a baseline drawn along the outer fringe of groups of islands in close association with the mainland may be justified on grounds considered in the previous paragraph. The ILC thought the straight baselines system might be applicable, but failed to draft an article on the question. However, neither this system nor what has been said above provides a solution to the problem of baselines associated with large island systems unconnected with any mainland. Indonesia and the Philippines employ straight baselines to enclose such islands systems, and it may be that a polygonal system is the only feasible one in such special cases. It is arguable that this is only a further application to special facts of principles of unity and interdependence inherent in the Fisheries case; the difficulty is to allow for such special cases without giving a general prescription which, being unrelated to any clear concept of mainland, will permit of abuse.

At the 3rd UN Conference on the Law of the Sea, the archipelagic states as a group had some success in promoting straight archipelagic baselines; consequently CLOS includes a set of articles concerning archipelagic states (Arts. 46-54), which are defined as “a state constituted wholly by one or more archipelagos and may include

4 “Rocks which cannot sustain human habitation or economic life of their own shall have no

exclusive economic zone or continental shelf.”5 Art. 4 par. 3 Territorial Sea Convention; Art. 7 par. 4 CLOS.

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other islands.” For no very sound reason this definition excludes states like Canada which consist in part of one or more archipelagos. According to the Convention, archipelagic straight baselines may be employed subject to certain conditions, e.g. such baselines “shall not depart to any appreciable extent from the general configuration of the archipelago.” The archipelagic state has sovereignty over the waters enclosed by the baselines subject to certain limitations created by the CLOS, consisting of the right of innocent passage for ships of all states and, unless the archipelagic state designates sea lanes and air routes above, “the right of archipelagic sea lanes passages... though the routes normally used for international navigation.”

REEF-BOUND COASTLINES. The baseline is the seaward low-water line of the reef. This flows from principle, but is affirmed by Art. 6, CLOS.

HIGHLY UNSTABLE COASTLINES. Art. 7 par. 2 CLOS: “Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention.”

6. Legal Regime of the Territorial Sea

In practical terms, the coastal state has rights and duties inherent in sovereignty, although foreign vessels have privileges, associated particularly with the right of innocent passage, which have no counterparts in respect of the land domain apart from special agreement or local customary rights. The coastal state may reserve fisheries for its own nationals, and indeed the first exercise of this power has often been the first evidence of a claim to a maritime belt. It may also exclude foreign vessels from navigation and trade along its coast (cabotage). Obviously, there is a general power of police in matters of security, customs, fiscal regulation, and sanitary and health controls. There are particular limitations on this sovereignty to be found in general international law.

INNOCENT PASSAGE. Customary law recognizes the right of peaceful or innocent passage through the territorial sea. Historically the right is related to a state of affairs in which special zones of jurisdiction were not clearly distinguished from full-blooded claims, and in principle the maritime belt was high seas, but with restrictions in favor of the coastal state. As a question of policy, innocent passage is a sensible form of accommodation between the necessities of sea communication and the interests of the coastal state.

Definition of innocent passage is difficult not just in terms of precision in stating the conditions of innocence, but also with regard to the question of a presumption, in case of doubt, in favor either of the visitor or of the coastal state. The starting point must be Art. 14, Convention on the Territorial Sea:

1. Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.

2. Passage means navigation through the territorial sea for the purpose either of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters.

3. Passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress.

4. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with these articles and with other rules of international law.

5. Passage of foreign fishing vessels shall not be considered innocent if they do not observe such laws and regulations as the coastal State may make and publish in order to prevent these vessels from fishing in the territorial sea.

6. Submarines are required to navigate on the surface and to show their flag.

The article corresponds substantially to customary law but is more specific in some respects. Vessels engaged in coastal trade are excluded by the definition of passage. Fishing vessels are included, though by an ill-drafted provision that makes compliance with local laws and regulations relating to the prevention of fishing a criterion of innocence, which approach contradicts par. 4. Apparently the text was intended to emphasize the manner in which the passage was carried out rather than on such factors as the object of the passage, the cargo carried, ultimate destination, etc. However, some say the text extends to the object of the journey.

At the 3rd UN Conference on the Law of the Sea (1973-1979), the right of innocent passage was a matter of particular interest. The maritime states, faced with expanding claims to territorial seas affecting many seaways, wanted firmer outlines for the right. Consequently, the definition of “innocent passage” in Art. 19, CLOS:

Meaning of innocent passage. 1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft;

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(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of wilful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage.

Art. 20: “Submarines and other underwater vehicles. In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag.”

PASSAGE OF WARSHIPS. Some deny the right of passage of warships in peacetime; others allow such a right “when the territorial waters are so placed that passage through them is necessary for international traffic.” Many—perhaps most—states require prior authorization, and consequently dogmatic assertions of a right of passage taken on an aspect of advocacy.

A draft article by the ILC gave the coastal state the right to make passage subject to prior authorization / notification, but this did not get the necessary support at the Geneva Conference of 1958. However, Sørensen says that a majority of delegations did not intend warships to have a right of passage, though no article in the CTS deals directly with this question. Some jurists however have deduced from the text of the Convention a recognition of the right of passage. Fitzmaurice states that Arts. 14-17 are titled “Rules Applicable to All Ships”; the provision relating to submarines (Art. 14 par. 6) clearly implies that “all ships” includes warships; however, the [preparatory proceedings] preclude this interpretation.

It has also been argued that the right of passage arises by implication from Art. 23, the sole article under the title “Rule Applicable to Warships”: “If any warship does not comply with the regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance which is made to it, the coastal State may require the warship to leave the territorial sea.” The provision was intended to deal with a case where a warship, having commenced passage in accordance with international law, being subject to local laws and regulations, has refused to comply therewith. The immunity from jurisdiction which warships enjoy necessitated a special provision: the hypothesis on which the article rests does not preclude the issue as to a right of passage. Moreover, the textual arguments advanced involve the unwarranted assumption that a controversial question was ultimately settled by leaving it up to inference. The CLOS contains the same unresolved obscurities (Arts. 17-32).

RIGHTS OF THE COASTAL STATE. It may take the necessary steps in its coastal sea to prevent passage which is not innocent (Art. 16 par. 1, CTS; Art. 25 par. 1, CLOS). Vessels exercising the right of passage are subject to local laws and regulations, provided these confirm with international law and treaty obligations (Art. 16 par. 2, Art. 17; Arts. 21, 22, 25 par. 2 CLOS). The substance of such laws and regulations and the mode of enforcement should not be such as to render passage impossible or impracticable. Art. 16 par. 3 CTS (Art. 25 par. 3 CLOS) confers on the coastal state a right to suspend innocent passage temporarily in specified areas of the territorial sea if such suspension is “essential for the protection of its security.” Art. 18 (Art. 26 CLOS) provides that no charge may be levied on foreign vessels by reason only of their passage, but only for specific services rendered to the ship.

CRIMINAL JURISDICTION OVER SHIPS IN PASSAGE. Warships or non-commercial govt vessels are not included; they enjoy complete immunity from local jurisdiction. Art. 19 CTS substantially reproduces rules assumed to represent international law:

1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connexion with any crime committed on board the ship during its passage, save only in the following cases:

(a) If the consequences of the crime extend to the coastal State; or(b) If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; or(c) If the assistance of the local authorities has been requested by the captain of the ship or by the consul of the country whose flag the ship flies; or(d) If it is necessary for the suppression of illicit traffic in narcotic drugs.

1(d) was an innovation, however. There was controversy over the legality of arrest or investigation in connection with any crime committed before a ship entered the territorial sea, if the vessel was merely passing through said territorial sea without entering internal waters. Gidel believed arrest was permitted. Art. 19 par. 5 expressly prohibits the exercise of jurisdiction in this way; logically the prohibition is inherent in par. 1. Art. 19 par. 2 reserves a right of arrest and investigation on board foreign vessels passing through the territorial sea after leaving internal waters. Art. 27 CLOS affirms, with minor changes, the CTS provisions.

CIVIL JURISDICTION OVER SHIPS IN PASSAGE.(a) PERSONS ON BOARD. It is impermissible to stop or divert a foreign ship

passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board (Art. 20 par. 1 CTS; Art. 28 par. 1 CLOS).

(b) PROCESS AGAINST THE VESSEL. The coastal state may not levy execution against or arrest a foreign ship for the purpose of any civil proceedings “save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State” (Art. 20 par. 2 CTS; Art. 28 par. 2 CLOS) Thus the rights of the coastal states are more restricted than under the Brussels Convention for the Unification of Certain Rules Relating to the Arrest of Sea-going Ships 1952. If the latter does not apply to arrest during passage through the territorial sea, as opposed to internal waters, there is of course no conflict. In any case, many states have not ratified the Brussels Convention.

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SHIPS AT ANCHOR IN THE TERRITORIAL SEA. The aforementioned rules apply, since stopping and anchoring, if incidental to ordinary navigation or are rendered necessary by force majeure or distress, are a part of passage. In other cases, ships at anchor may be treated in the same way as ships in internal waters, because such vessels are not exercising the right of innocent passage.

FOREIGN VESSELS IN INTERNAL WATERS [are discussed later in the book.]

B. Specialized Rights

1. Introductory

The territorial sea is by no means the only form in which the power of the coastal state is manifested over sea areas. It is, however, the form which involves a concentration of legal rights justifying the term “sovereignty,” and the limit of the territorial sea marks the seaward frontier of states. Beyond this line stretch the high seas and the exclusive economic zone. A general interest in maintaining the substance of the principle of freedom of the seas has been reconciled with the tendencies of coastal states to extend their power seawards: (a) the development of generally recognized specialized extensions of jurisdiction, and (b) rights analogous to legally protected possession of land areas.

2. The Concept of the Contiguous Zone

Jurists and governments widely recognize the fact that contiguous zones give jurisdiction over the high seas (or, more recently, over areas which may be claimed as the exclusive economic zone [EEZ]) for special purposes (see Art. 24 CTS; Art. 33 CLOS). The contiguous zone, if it is claimed, will be superimposed on the EEZ (if such a zone is claimed) (Art. 55 of the Convention [which one?]). In the absence of a claim to an EEZ, the areas concerned form part of the high seas (see Art. 86 CLOS). It follows that the rights of the coastal state in such a zone do not amount to sovereignty, and thus other states have rights exercisable over the high seas except as they are qualified by the existence of jurisdictional zones. Moreover, these zones are not appurtenant as in the case of the territorial sea—they must be claimed. However, like the territorial sea, they are contiguous, and they share the latter’s baseline.

The most important question concerns the purposes for which special rights of jurisdiction and policy may be asserted. Difficulty arises from 2 sources. From the doctrinal point of view, it is only relatively recently that a consistent general doctrine of contiguous zones has appeared; and systematic development had not proceeded very far when the ILC took up these problems. The CLOS provides for the creation of contiguous zones for the same purposes and on the same basis as before (Art. 33), except that (1) the contiguous zone is no longer expressed to be “a zone of the high seas,” and (2) the maximum limit is expressed to be 24 miles.

3. Permissible Types of Zone

POINT OF DEPARTURE: Art. 24 CTS: to prevent infringement of “customs, fiscal, immigration or sanitary regulations within the territory or territorial sea of the coastal

State.” Subsequently other claims, including fishery and security zones, will be considered.

CUSTOMS ZONES. The exercise of this type of jurisdiction is very frequent and no doubt rests on customary international law. Art. 24 CTS and Art. 33 CLOS refer to “customs and fiscal” regulations, other sources to “revenue laws.” Smuggling is made easier in narrow enforcement areas; commonly customs zones are 6 or 12 miles. US: 4 leagues (since 1790). The content of the claim to enforcement is presumably limited by a requirement of reasonableness, and regulations designed for revenue cannot be employed in such a way as to accomplish another purpose, e.g. the exclusion of foreign vessels. Treaty regimes may be crated for the mutual recognition of zones and enforcement procedures.

IMMIGRATION ZONES. In practice, customs and fiscal regulations might be applied here, and this type of jurisdiction shares the basis in policy of the customs zone. These zones are recognized through inclusion in the CTS and CLOS. The limitation to immigration is perhaps significant, although in the relevant ILC draft, the term was intended to include emigration.

ZONES FOR SANITARY PURPOSES. ILC comment on the draft article: “Although the number of States which claim rights over the contiguous zone for the purpose of applying sanitary regulations is fairly small, the Commission considers that, in view of the connection between customs and sanitary regulations, such rights should also be recognized for” the latter. Writers agree.

PREVENTION OF POLLUTION OF THE SEA, particularly by oil. Recently, jurisdiction to police pollution has been advanced principally by extension of the territorial sea and the appearance of the EEZ, in which the coastal state has the right of conserving the natural resources.

SECURITY ZONES are not recognized in the CTS or CLOS, nor, it is submitted, have they received general acceptance in the practice of states. The ILC “considered that the extreme vagueness of the term ‘security’ would open the way for abuses and that the granting of such rights was not necessary. The enforcement of customs and sanitary regulations will be sufficient in most cases to safeguard the security of the State Insofar as measures of self-defense against an imminent and direct threat to the security of the State are concerned, the Commission refers to the general principles of international law and the” UN Charter. Moreover, recognition of such rights would go far toward equating rights over the contiguous zone and rights in the territorial sea.

4. Delimitation of the Contiguous Zone

BASELINES. It has always been assumed, and is so in Art. 24 CTS and Art. 33 CLOS, that the baselines for the delimitation of both contiguous zones and the territorial sea are identical.

BREADTH is dealt with by Art. 24 CTS, which established a 12-mile limit for all purposes. Art. 33 CLOS prescribes 24 miles.

5. Problems of Enforcement

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As a matter of general international law, the coastal state may take any steps necessary to enforce compliance with its laws and regulations in the prescribed zone/s. The power is one of police and control, and transgressors cannot be visited with consequences amounting to reprisal or summary punishment. Forcible measures of self-help may not be resorted to as readily as in the case of trespass over a state frontier. In this respect, the text adopted by both the ILC and the CLOS may be more restrictive than general international law, from the point of view of a coastal state (Art. 24 par. 1 CTS).

Fitzmaurice: “It is control, not jurisdiction, that is exercised. The power is essentially supervisory and preventative. No offense against the laws of the coastal State is actually being committed at this time. The intention is to avoid such an offense being committed subsequently, when by entering into the territorial sea the vessel comes within the jurisdiction of the coastal State; or else to punish such an offense already committed when the vessel was within such jurisdiction. But what are the (‘necessary’) powers of control which the coastal State can exercise? So far as arrest, as such, is concerned, the answer must be in the negative. Whatever the eventual designs of the vessel, she cannot ex hypothesi at this stage have committed an offense “within [the coastal State’s] territory or territorial sea.” There is consequently nothing in respect of which an arrest as such can be effected. As regards ordering, or conducting the vessel into power under escort, the case is less clear. Enforced direction into port is almost tantamount to[, if formally distinct from, arrest]. Any necessary inquiries, investigation, examination, search, etc., should take place at sea while the ship is still in the contiguous zone. Only by insistence on such limitations is it possible to prevent coastal States from treating the contiguous zone as virtually equivalent to territorial sea.”

Nevertheless, in case of controversy, reference may be made to the travaux préparatoires: Apparently most states at the CLOS did not intend to restrict rights in contiguous zones, as hitherto understood, by establishing the distinction between “control” and “jurisdiction.”

6. Other Zones for Special Purposes

The 20th century has produced a number of national claims to non-contiguous, but adjacent, zones for special purposes, which represent attempts to apply the logic of claims to contiguous zones in a manner calculated to protect national interests to the utmost. Insofar as those zones represent claims to extra-territorial jurisdiction over nationals, they are not necessarily in conflict with general international law; furthermore, groups of states may cooperate and be mutually obligated to respect such zones by convention. Beyond these limits such zones would be incompatible with the status of waters beyond the limit of the territorial sea, at least if they involved the application of powers of prevention / punishment in regard to foreign vessels or aircraft.

- defense zones extending beyond the territorial sea- zones for purposes of air identification

FISHERY CONSERVATION ZONES. Coastal states with particular interest in offshore fisheries have sought means of limiting major operations by extra-regional fishing fleets. Paradoxically it was the US, historically an opponent of fishing zones, which sowed the seeds of change. Firstly the US took an important initiative in claiming the mineral resources of the continental shelf in 1945 [see Chapter 10], on the basis of the

generous concept of “adjacency.” It would not be surprising if other states were ready to claim the biological resources of the adjacent waters or “epicontinental sea” by a general parity of reasoning. Secondly the US produced a Fisheries Proclamation of 28 Sept 1945, which empowered the Govt to establish “explicitly bounded” conservation zones in areas of the high seas “contiguous to the US.”

For a long while the tendency was lacking in coherence. Adherents were scattered and the legal quality of some of the claims was uncertain and varied. Some were on one view an extended territorial sea with a concession of the rights of overflight and free navigation. In 1970, only 9 out of 20 Latin American states subscribed to the Montevideo Declaration on the Law of the Sea, wherein a 200-mile zone is asserted, involving “sovereignty and jurisdiction to the extent necessary to conserve, develop, and exploit the natural resources of the maritime area adjacent to their coasts, its soil and its subsoil,” but without prejudice to freedom of navigation and overflight. By 1978, some 74 states had fishing zones of 200 miles; 10 states had claims greater than 12 but less than 200 miles. Clearly the fishery conservation zone, not greater than 200 miles from the usual baselines, has become established as a principle of customary international law.

However, in the early phase of the formation of the new rule, such limits were opposable to non-adherents only on the basis of express recognition. Fisheries Jurisdiction case (UK v Iceland): An Icelandic fishing zone 50 miles in breadth was held invalid as against the UK, as a consequence of the terms of a bilateral 1961 agreement. The Court avoided taking a position on the validity of the Icelandic claim in general international law. 5 judges in separate opinions said that no rule of customary law concerning maximum fishery limits had yet emerged. In any case, by 1989, the development of 200-mile fishery zones had been made to an extent redundant by the legality and preponderance of EEZs. Still, approx. 24 states have fishery zones, of which 14 have a 200-mie limit. The status of fishery zones in customary law was recognized by the International Court in the Jan Mayen Case (Denmark v Norway).

PREFERENTIAL RIGHTS FOR THE COASTAL STATE. Fisheries Jurisdiction Case: The concept of preferential rights had crystallized as customary law; “preferential rights of fishing in adjacent waters in favor of the coastal state in a situation of special dependence on its coastal fisheries, this preference operating in regard to other states concerned in the exploitation of the same fisheries.” This concept has survived in customary law despite absence of any reference to it in the CLOS.

EXCLUSIVE ECONOMIC ZONES. Claims to exclusive fishery rights in adjacent maritime zones led eventually to claims encompassing all natural resources in and of the seabed and superjacent waters, in a zone 200 miles in breadth: the “patrimonial sea” or “economic zone” or, by 1973 in the UN Committee on the Peaceful Uses of the Seabed and Ocean Floor, the “exclusive economic zone.” The CLOS provides a detailed structure (Arts. 55-75): The zone is to extend no further than 200 miles from the baselines of the territorial sea; the zone is not defined as a part of the high seas, and is sui generis. Apart from the freedom of fishing, the freedoms of the high seas apply. The rights of the coastal state are in Art. 56 par. 1:

In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to

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other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:

(i) the establishment and use of artificial islands, installations and structures;

(ii) marine scientific research;

(iii) the protection and preservation of the marine environment;

(c) other rights and duties provided for in this Convention.

No less than 102 states have made claims to an EEZ and it forms part of customary law, independently of the version to be found in the CLOS provisions. This customary law status has been recognized by the International Court6 and also by the US. The extent of the coincidence between the customary law version of the concept and the CLOS model is problematic, but in any event, both under the CLOS and in customary law the zone is optional and its existence depends on an actual claim. When claimed, an EEZ coexists with the regime of the continental shelf which governs rights WRT the seabed and the subsoil (Art. 56 par. 3 CLOS). It may also coexist with a contiguous zone.

The US takes the view that “highly migratory species,” including the commercially important tuna, are excluded from the jurisdiction of the coastal state and therefore available for foreign distant water fishing fleets. This position is difficult to substantiate. It is contradicted, rather than supported, by Art. 64 CLOS, and is not reflected in the practice of states.

The legal regime of the EEZ has various facets. Art. 60 CLOS provides in part as follows:1. In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of:

(a) artificial islands;

(b) installations and structures for the purposes provided for in article 56 and other economic purposes;

(c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.

2. The coastal State shall have exclusive jurisdiction over such artificial islands installations and structures, including jurisdiction with regard to customs fiscal health, safety and immigration laws and regulations. x x x

8. Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

6 Tunisia-Libya Continental Shelf Case (1982); Gulf of Maine case (1984); Libya-Malta Continental

Shelf Case (1985). See also Rego Sanles v Ministère Public.

Art. 61: the responsibility of the coastal state in managing the living resources in the zone; its duty to “ensure... that the maintenance of the living resources in the EEZ is not endangered by over-exploitation.”

Art. 62: The coastal state is required to promote the optimum utilization of the living resources in the zone; to determine its capacity to harvest the living resources, and give other States access to whatever surplus there is, taking into account all relevant factors; and the mandatory compliance for nationals of other States fishing in the EEZ with conservation measures and other terms and conditions established by the coastal State.

The allocation of the respective rights and duties of the coastal state and those of other states in the zone involves a delicate balancing process which is articulated in fairly general terms in the provisions of the CLOS. Art. 58: All States enjoy freedom of navigation, overflight, the laying of submarine cables and pipelines and other internationally lawful uses of the sea related to these freedoms. Arts. 88-115 and other pertinent rules of international law apply to the EEZ insofar as they are not incompatible. States shall have due regard to the rights and duties of the coastal State and shall comply with its laws and regulations insofar as they are not incompatible with the CLOS.

Art. 59, “basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the EEZ”:

In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

Art. 73: The coastal state has the power to take reasonable measures of enforcement of its rights and jurisdiction within the zone in accordance with both the standards of general international law and, where applicable, the provisions of the CLOS.

Brownlie Chapter X: The Continental Shelf: Delimitation of Shelf Area and Exclusive Economic Zones

I. INTRODUCTIONClassifications of Submarine Areas:

a) the Seabed of Internal Waters and Territorial Seas of Coastal Statesb) the Continental Shelf Areac) the Seabed of the Exclusive Economic Zone (EEZ)d) the Seabed and the Ocean floor Beyond the Outer limits of the Continental

Shelf and the EEZ (the legal regime of the high seas)It is presumed that these categories include marine subsoil to the extent that rules of the particular legal regime are intended to so apply. This chapter focuses on the legal regime of the continental shelf and related issues of delimitation between opposite or adjacent States.

II. BACKGROUNDA. The Shelf.

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The seabed, which consists mostly of the deep ocean floor, in many parts of the world is separated from the coast of land masses by a shelf. The increase in depth is gradual, until the shelf edge is reached; the steep incline of the continental slope gives way to large aprons of sediments (the continental rise), which hide the boundary between the deep ocean floor and the pedestal of the continental mass.

In geological terms the shelf is part of the continent. Its width varies from a mile to hundreds of miles; its depth range from 50 to 550 meters. It carries substantial oil and gas deposits, while the seabed provides sedentary fishery resources.

B. Pertinent Laws and DecisionsThe Argentine Decree (1944) created zones of mineral reserves in the

epicontinental sea. However, the decisive event in state practice was a the Truman Proclamation by the US on Sept. 28, 1945, relating to the natural resources of the subsoil and seabed of the continental shelf. The shelf was regarded as a geological feature and as extending up to the 100 fathoms line (about 600 feet). The natural resources were described as “appertaining to the U.S., subject to its jurisdiction and control”. Of particular importance were the limitations of the claim/right to the resources themselves and the declaration that “the character as high seas of the waters of the continental shelf and the right to their free and unimpeded navigations are in no way thus affected.”

The Truman Proclamation were in substance followed by the Orders in Council of 1948 concerning Bahamas, Jamaica, Saudi Arabia’s proclamations (1948) and nine sheikdoms in the Persian Gulf under protection of the UK (1949).

The practice, however, showed certain variations. The Truman proclamation and an Australian proclamation (Sept 10 1953) relate the claim (or right) to the purpose of exploitation of the resources of the seabed and subsoil of the continental shelf, stipulating that the status of the superjacent waters as high seas shall be unaffected. A number of states claimed sovereignty over the seabed and subsoil as such (for exploitation) but expressly reserved the question of the status of the above waters as high seas. 7 It is in this development that principles of geological community, self-protection and effective control played a part, and this development parallels, in a new sphere, concepts of the territorial sea and the contiguous zone.

The thesis in the Truman proclamation proved attracted to States of different variety. The new principle gave a stable basis for exploiting petroleum while simultaneously making a reasonable accommodation for fishing and navigation, which was done at the superjacent-water-level. Again, however, the practice was not uniform. Far from it. The Intl Law Commission (ILC) in 1951-56 in its discussions even indicated the legal regime (the trend started by the Truman Commission) was immature.

As a consequence, the text of the Convention on the Continental Shelf (adopted at the Law of the Sea Conference of 1958 represented in part an essay in the progressive development in the law. Nevertheless, the first 3 articles represented pre-existing/ at least emergent rules of customary intl. law:Article 1For the Purposes of these Articles, the term ‘continental shelf is used as referring to a) 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 meters or, beyond that limit, to where the

7 ?Though the Proclamations say the rights of free navigation of the high seas are unimpeded by a State’s right over the seabed and subsoil of the shelf, a number of States, by making reservations, in way did not want to waive sovereignty over the high seas above their controlled shelf. – digester’s take

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 islandsArticle 2

1. The Coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

2. The rights referred to in Par 1 are exclusive in the sense that if the Coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities or make a claim to the continental shelf, without the express consent of the coastal State.

3. The rights of the coastal state over the continental shelf do not depend on occupation, effective or national, or on any express proclamation.

4. The natural resources referred to in these Articles consist of mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

Article 3The rights of the Coastal State over the continental shelf do not affect the legal status of the superjacent waters as high seas, or that of airspace above those waters.

III. SOURCES OF THE LAWThe quoted articles provide the essence of the legal regime. Articles 2 and 3 were reproduced in the Law of the Sea Convention of 1982 (Art. 77 and 78, par.1). The Convention of 1958 has 51 parties, and occasionally it was relevant, when both parties to a dispute are party to that Convention. 8

However, the present position in general international law now depends on a variety of sources, each of which must be weighed appropriately, as proof of customary international law.

Such sources include codification conventions, recognized by the Chamber of the Intl Court (Gulf of Maine case), examples of which are the Convention on the Continental Shelf of 1958, the Law of the Sea Convention of 1982 (in so far as proceedings of the 3rd UN Conference on the Law of the Sea indicated provisions reflecting consensus among participants) , and the decisions of the Court and other international tribunals.

The Intl Court, in the Case concerning the Continental Case (Libya-Malta) also considered certain aspects of the Convention of 1982 as evidence of international law. In that decision, the Court emphasized the significance of state practice.

With respect to the delimitation of shelf areas between opposite and adjacent states, the subject is essentially a matter of customary law, established by decisions of the Court and other tribunals which began with the North Sea Continental Shelf Cases (1969).

8 Anglo-French case, Gulf of Maine case Jan Mayen case

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IV. RIGHTS OF THE COASTAL STATE IN THE SHELFA. ARTICLE 2 OF THE CONTINENTAL SHELF CONVENTION OF 1958 (repeated in Art 77 of the 1982 Law of the Sea Convention)

Under the article, the Coastal State exercises ‘sovereign rights for the purpose of exploring it and exploiting its natural resources’. But in 1958 the term “sovereignty” was avoided as it was redolent of territorial sovereignty which would, in effect, prejudice the status of waters over the shelf as high seas. 9 An area within a 200-mile EEZ is not designated as ‘high seas’ in the 1982 Convention (in Arts. 55 and 86) its Art. 78 provides that ‘the rights of the Coastal State over the Continental Shelf do not affect the legal status of the superjacent waters or airspace above those waters’. (also in Art. 3 of the 1958 Convention) Thus, in the absence of an EEZ, and also when the shelf extends beyond 200 miles from the coast, the legal status of such waters will be ‘high seas’; and even if there is one, the superjacent waters are still subject to a significant number of high seas freedoms in accordance with general intl. law and with Art. 58 of the 1982 Convention. B. BALANCING ACTSBoth Conventions (1958 and 1982) attempted to balance the exploiting rights of the coastal shelf and the rights and freedoms of other states. The Convention of 1982, in Art 78 par. 2, provides that the exercise of the rights of the Coastal State must not infringe or unjustly interfere with navigation and other rights and freedoms of other states as stated in that convention (in Art. 5, par 1 of the 1958). Also in Art 79 of the 1982 Convention, it is contained that ‘ALL STATES are entitled to lay submarine cables and pipelines on the continental shelf (subject to conditions)’ (in 1958, Art. 4); but it was provided in Art 81 that only the COASTAL STATE shall have the EXCLUSIVE right to authorize and regulate drilling on the shelf for all purposes.

The major objective has been to provide a stable basis for seabed operations and to avoid squatting by offshore interests. The sovereign rights inhere in the coastal state by operation of law, unconditioned by occupation or express claim, and cannot be defeasible except by express grant. And while coastal states apply their own laws to activities in the shelf, it is by no means clear that they do so either because the shelf is territorial or as aspect of their intl. law rights over the shelf. In the UK and other states, legislation indicates that the shelf regime is not assimilated as state territory. 10

V. NATURAL RESOURCES OF THE SHELF (and the laws pertaining to them)1. Mineral resources – the Truman Proclamation of 19452. Fisheries – as pressed by Latin American states, and later the ILC decided to include sedentary fisheries; Art. 2 of the 1958 Convention (reproduced in the 1982 Convention, Art 77, par. 4) defined ‘natural resources’ to include ‘living organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or subsoil. However, the application of this definition met difficulties with regard to king crabs and

9 There appears to be a conflict created, one between the coastal state’s rights over the shelf, and the freedoms of other states over the waters over the shelf. 10 In re Ownership and Jurisdiction over Offshore Mineral Rights; Clark v. Oceanic Contractors

a particular species of lobster11, and was problematic as it excludes in principle dermersal species, such as halibut and plaice, which swim close to the seabed. But when an EEZ has been claimed in the area, these issues (WON the Coastal State has a right to the living resources not included on the Convention’s definition) will no longer arise, as an EEZ vests all rights in the living resources inhere in the coastal state. (1982 Convention Art 56 par. 1)

VI. ARTIFICIAL ISLANDS AND INSTALLATIONS ON THE SHELFAccording to Art 5, par 2 of the Convention (1982):“ the coastal State is entitled to construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and exploitation of its natural resources, and to establish safety zones around such installations and devices and to take in those zones measures necessary for their protection.”

These installations do not have a territorial sea of their own.

The Convention however does not provide for basis to build defense installations on the shelf, but it also does no prohibit, so they may be lawful if some other legal justification exists. However, if a coastal state is allowed to do so, and if the state prohibits other states from doing such an activity, then a security zone over the whole shelf area may be justified (they wouldn’t want to risk this as it was intended that the rights of other states be kept whole). Though the North Sea Installations Act of the Netherlands (1964) asserted rights of jurisdiction over fixed installations on the shelf as a means to control pirate broadcasting, this case is not in point here as the measure was not based on the doctrine of the continental shelf.

In Art 80 of the 1982, it is simply provided that Art 60 ‘applies mutatis mutandis to artificial islands, installations and structures on the continental shelf; and Art 60 par 7 provides:

Artificial islands, installations and structures and the safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation’ (Art 5, par 6, 1958)

VII. REGIME OF THE SUBSOILThe subsoil is governed by customary international law. It is provided in Art. 85 of the 1982 Convention that “Part Vi does not prejudice the right of the coastal state to exploit the subsoil by means of tunneling irrespective of the depth of water above the subsoil. (and see daw Art 7 of the 1958).

There is a notable distinction inherent in the arrangement; if exploitation occurs from above the shelf, the continental shelf regime applies; but if by tunnels from the mainland a different regime applies (article didn’t say).

VIII. THE OUTER LIMITS OF THE SHELF

The inner limit is the outer edge of the territorial sea and its seabed; as to the outer limit, there is a substantial disparity between the criteria provided by Article 1 of the

11 A particular Crab is even rumored to sell ‘crabby patties’ thus even challenging trade laws.

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Continental Shelf Convention of 1958 and the solution provided by the Law of the Sea Convention of 1982.

Article 1 of the 1958 Convention (in pg 1 of this digest), correctly interpreted, would seem to say that the 200-meter depth criterion can be exploited, but the exploitation is controlled by the conception of the shelf as a geological feature and by the principle of adjacency contained in the same article. The records of the ILC clearly provided that the legal conception was based upon the geological conception and it was not thought that the whole ocean floor could be divided up as a continental shelf, subject to a median line division contained in Article 6. However, the truth is that the legal conception was not based exclusively on the geological conception, and therefore includes a) the shelves of islands b) shallow basins such the North Sea and the Persian Gulf c) steep buttresses like those adjacent to Chile’s coast, which can be exploited by tunnels from the mainland. The legal conception excludes the sea bed of the territorial sea. It is unjustified then to say that the 200-meter criterion becomes superfluous if exploitability would extend to greater depths. If exploitability would be applied as a dominant test, a scenario between two States, A and B, with A having the broader shelf separated from B’s narrow one by the seabed/abyssal plain, like this would result in State A conceding part of a broad shelf opposite State B’s narrow shelf since the median line would fall across the 200 meter zone adjacent to A. But such a line in Art 6 applies only when the states share the same shelf in the geological context. In other terms the submarine area extending to the 200 meter contour is always adjacent. The outcome of exploitability to greater depths, than 200, is that the coastal state will have rights over the entire shelf as a geological feature, including the continental slope and continental rise.

However, it is a part of current state practice, based on legislation and claims before the 1982 Law of the Sea Convention, to employ a 200 depth limit together with an exploitability criterion (36 states). Thus it may be presumed that the exploitability criterion is itself limited by the geological criterion flowing from the legal concept of the shelf.

The Law of the Sea Convention of 1982 contains a significantly different approach, in recognizing a 200 mile breadth (as opposed to depth) as an independent valid critierion and provides guidelines for determining the location of the ‘outer edge of the continental margin’. (see Art 76, where the guidelines are stated)

The general modus operandi presented in this provision (200 mile breadth limit or whichever is greater) will probably be recognized as the new standard of customary law. Some states may object but this will be difficult if they wish to be party to the Convention of 1982. Another thing evident would be that states with shelves falling short of the 200 mile breadth will rely upon a claim to the resources of the EEZ. Art 56 par 3, of the 1982 Convention expressly provides that the rights of the EEZ shall be exercised in accordance with provisions governing the continental shelf.

IX. THE CONTINENTAL SHELF V. THE EEZ

The EEZ includes the continental shelf interest in the seabed of the 200 mile zone (art 56, par 3, Convention of 1982).

The EEZ and the Shelf coexist in the sphere of customary law and in the regime set by the Law of the Sea Convention of 1982, both containing significant elements of similarity and interpenetration. Both concepts focus on control of economic resources and are based upon adjacency and the distance principle.

However, there are distinctions. 1. The EEZ is optional but the rights to exploit and explore the shelf inhere in

the coastal state by operation of law. (In the Mediterranean, some states have shelf rights but no EEZs.)

2. Shelf rights exist beyond the limit of 200 miles from pertinent coasts when the continental shelf extend beyond that limit. Consequently, the rights of the Intl. Sea-bed Authority (Law of the Sea Convention 1982) must be reconciled with those of the coastal state.

3. The EEZ includes the water column. As a consequence the EEZ’s resources (apart from the sedentary species of fish) are subject to rules about sharing the surplus of the living resources of the EEZ with other states, particularly land-locked states of the same region. (Law of the Sea Convention 1982, Art. 62, 68, 69, 70 and 71).

4. The EEZ regime confers on coastal states substantial jurisdiction over pollution by ships and greater control in terms of marine scientific research.

X. SHELF DELIMITATION BETWEEN OPPOSITE OR ADJACENT STATES (OR REVIEW OF THE NORTH SEA CONTINENTAL SHELF DECISION)A. Sources

1. Article 6 of the Continental Shelf Convention of 1958 – for cases where the ‘same continental shelf’ extends between 2 adjacent or opposite States. The Convention stipulates that boundary shall be determined by agreement, and in absence of one, and unless another boundary line is justified by special circumstances boundary shall be determined by a median line, or the principle of equidistance (measurement from the nearest points of the baselines from which the breadth of the territorial sea of each state is measured).

The decision provided as follows: A) the use of the equidistance method of delimitation not being obligatory as between the Parties; and(B) there being no other single method of delimitation the use of which is in all circumstances obligatory;(C) the principles and rules of international law applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the agreements of 1 December 1964 and 9 June 1965, respectively, are as follows:

(1) delimitation is 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;(2) if, in the application of the preceding sub-paragraph, the delimitation leaves to the Parties areas that overlap, these are to be divided between them in agreed proportions or, failing agreement, equally, unless they decide on a regime of joint jurisdiction, user, or exploitation for the zones of overlap or any part of them;

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(D) in the course of the negotiations, the factors to be taken into account are to include:

(1) the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features;(2) so far as known or readily ascertainable, the physical and geological structure, and natural resources, of the continental shelf areas involved;(3) 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 coastal State and the length of its coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations between adjacent States in the same region.

2. The North Sea Continental Shelf Cases – where it was held that the equidistance method did not represent general international law. Since then, ‘equitable principles’ became the customary norm. These ‘equitable principles have a normative character as part of general international law and their application is to be distinguished from a decision ex aequo et bono. Now, in the Convention of 1982, delimitation is left to rules of general or customary international law. Art 83 provides:

‘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 Art. 38 of the Statute of the ICJ, to achieve an equitable solution.’

B. The Equitable Principles. The recognized principles are rather general, and those most often formulated are as follows: 1. Delimitation shall be effected by agreement on the basis of international law.2. The principle of non-encroachment by one party on the natural prolongation of the other. 3. Prevention any cut off of the sea ward projection of the states concerned.4. Delimitation is to be effected by applying equitable criteria and by using practical methods capable of ensuring, with regard to the geographical configuration of the area and other relevant circumstances, an equitable result. 5. There is a presumption that the equitable solution is an equal division of the overlapping areas of the continental shelves of the disputing states.

C. Relevant circumstances recognized by tribunalsApplication of equitable principles makes reference to relevant circumstances, examples of which are the following:1. General configuration of the coasts of the parties12

2. Where there is a geographical situation of quasi-equality between a number of states, it is necessary to abate effects of an incidental special feature which might result in unjustified, different treatment. ( to avoid the effects of a concave coast 13, the

12 North Sea cases, Gulf of Maine case, Libya Malta case, Guinea-Guinea case13 North Sea Case

location of islands of one state near the other14, and the eccentric alignment of small islands lying off a peninsula15). 3. The geological structure of the sea-bed and its geomorphology16 (or surface features)4. The disparity of coastal lengths in the relevant area. 17

5. The general geographical framework or context. 18

6. The conduct of the parties, such as the de facto line produced by the pattern of grants of petroleum concessions in the disputed area. 19

7. The incidence of natural resources (oil and natural gas) in the disputed area. 20

8. The principle of equitable access to the natural resources of the disputed area21. 9. Defense and security interests of the disputing states.22

10. Their navigational interests. 23

11. Consistency with the general direction of the land boundary. 24

D. Proportionality In the North Sea cases, the Judgment states that one of the factors to be taken into account is the ‘element of a reasonable degree of proportionality, which a delimitation 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 the coastline, account being taken for this purpose of the effects, actual or prospective, of any continental shelf delimitation between adjacent States in the same region. Proportionality, in the first place, is NOT an independent principle of delimitation but only a test of equitableness of a result arrived at by other means. This ex post facto verification of a line arrived at based on other criteria may take two forms: a ratio based on the lengths of the respective coastlines (exceptionally) or generally, by vetting (to appraise, check or verify) the delimitation for disproportionality resulting from particular geographical features.

E. Mode of applying the Equitable Principles The ICJ has emphasized a process of balancing all the pertinent considerations and that the relative weight to be given to the various principles and factors varies with the circumstances of the case. Apart from the above factors, other factors may be given consideration, such as maintenance of the unity of deposits, the perpedicularity to the coast, existing fishing patterns, and maintenance of optimum conservation and management of living resources. But economic factors have been ruled out as

14 Anglo-French Continental case15 Ibid16 North Sea cases17 Gulf of Maine Case18 Anglo-French Continental Case19 Tunisia-Libya case20 Anglo French Continental Shelf case 21 Jan Mayen case22 Anglo-French Continental Shelf Case23 Anglo-French Continental Shelf Case24 Tunisia-Libya case

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extraneous and variable from time to time; the key criterion of acceptability appears to be whether the factor/consideration is related to the legal concept of the continental shelf.

The practical application of the equitable principles normally involves drawing a boundary line, then choosing a method which will produce an equitable result. The available methods include a median line, a median line subject to a factor of equitable correction, a perpendicular to the general direction of the coast, using a bisector of the angle of the lines expressing the general direction of the relevant coasts and creating a zone of joint development.

F. Natural Prolongation Concept The relevance of this concept is problematical. It states that the shelf is appurtenant to the land territory and is a prolongation of land territory into and under the sea. It originated in the North Sea case and emphasized the geological aspect of the shelf. This encouraged the view that geological factors should enjoy pre-eminence in delimitations. However, in practice, these formulations constitute no more than a single epitome of the shelf concept and the roots of title of the coastal state. In fact the ICJ has pointed to the principle of distance as basis of entitlement, and concluded that within areas at a distance of under 200 miles, from either of the coasts, there is no role for geological factors either in terms of verifying title or factors in delimitation. Natural prolongation is NOT a test for what is equitable. Even when the seabed is irregular this will not play any role as criterion of equity, except when they disrupt the essential unity of the continental shelf (and they rarely do), unless of course, they are in outside areas within 200 miles or less of the coasts in dispute.

XI. EEZ Delimitation between Opposite or Adjacent States

EEZ Delimitation is provided for in Art 74 of the Law of the Sea Convention of 1982, and is similar to the provisions on continental shelf delimitation (Art 83). Moreover, the basis of entitlement of the coastal state to the EEZ is less differentiated from that of shelf areas (Libya-Malta case). In general then, it may be assumed that principles of delimitation are similar, especially when the coasts involved are less than 400 miles apart. Differences would lie in balancing up of equitable factors, especially when fisheries are involved.

The state practice and decisions relating to single maritime boundaries are, in this context, significant. Example: In the Gulf of Maine case, such a boundary divides areas of different status into an EEZ and a fisheries zone. In that case, the principles applied were similar to principles in continental shelf delimitations, but it was also emphasized that multi-purpose delimitation involving both the shelf and the superjacent water column (included in the EEZ) should have its own suitable criteria.

XII. THE REGIME OF ISLANDSIslands may be relevant in delimiting areas. They may either be considered with effect (full or half) or may be entirely snubbed. Much will depend on the geological relationship of the Islands, rather than their classification as such. Art 121 of the 1982 Law of the Sea Convention provides Islands count as land territory, with the exception of: Rocks which cannot sustain human habitation or economic life of their own. Such

rock shall have no EEZ or continental shelf. Such is a new principle and is expected to create problems, in terms of definition and application.

BROWLIE CHAPTER 11. THE REGIME OF THE HIGH SEAS I. Introduction

1. The term “high seas” has traditionally encompassed all parts of the sea that are not included in the territorial sea or in the internal waters of a State and therefore comprehends contiguous zones and the waters over the continental shelf and outside the limit of the territorial sea.

2. The 1982 Convention of the Law of the Sea states the provisions of Part VII (High Seas) apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of the State, or in the archipelagic waters of an Archipelagic State (Art. 86.)

3. The abovementioned prescription invites two observations. First, the exclusive economic zone is optional and by no means all coastal states claim such a zone. Secondly, a significant proportion of the freedoms of the high seas are applicable to the exclusive economic zone according to the 1982 Convention (Arts. 58 & 86), which is also the position in Customary International Law.

4. Landlocked seas and international lakes are not governed by the regime of the high seas. They are not open to free navigation except by special agreement. But by acquiescence, custom, reinforced by conventions, such bodies or water may acquire the status of high seas. (ex. Baltic & Black seas). Most of the time, such is the case to enable to maintain the freedom of transit through these lakes and seas which connect to larger bodies of water.

II. The Freedom of the High Seas

1. Foundation of the law on the High Seas is the rules that high seas are not open to acquisition by occupation on the part of states individually or collectively, it is res extra commercium.

2. The emergence of this rule coincides with the rise of the maritime powers. The following are episodes in world history which contributed to the evolution of such rule:

a. The affirmation of Elizabeth I of the freedom of the seas in answer to a Spanish protest arising from the expedition of Drake. This was during the time in the 15th century when states wanted exclusive rights over large expanses of the sea which led to the issuance of the Papal Bulls (1493 & 1506) which partitioned the oceans of the world to Spain & Portugal.

b. In 1609, the Stuart policy extended the principle of closed seas from Scotland to England and Ireland which led to the concept of “British Seas”. The policy of closed seas heightened during the 17th century with claims by England, Denmark, Spain, Portugal, Genoa, Tuscany, the Papacy, Turkey and Venice.

c. Change began in the 18th century. Dutch favored freedom of navigation and fishing. With the accession of William of Orange to the English throne in 1689, disputes between Holland and England over fisheries ceased. British claim to sovereignty became obsolete and the requirement of the flag ceremony was ended by the late

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18th century. Claims of large areas of sea faded away. Cannon shot rule predominated.

d. This continued in the 19th century with commercial interests and naval power as considerations for the support for freedom of the seas. States have adopted a principle of shared use.

3. The principle of the freedom of the seas has been described by Gidel as “multiforme et fugace”. It is a general principle of international law or policy concept from which rules may be deducted. A limitation of such principle is its application to a specific problem often fails to give precise results. There arises problems of mutuality and abuse of rights. For example, weapon testing in the high seas, some states consider such as a legitimate exercise of a right while others perceive such as a violation. It has been said that the only successful form of prescription to such freedom is that of specifying exceptions such as the bill of rights in a written constitution. Gidel regards the concept as essentially negative.

4. The substance and character of the freedom of the high seas provide certain presumptions. Grotius stated two presumptions:

a. The sea could not be the object of private or state appropriationb. Use of the high seas by one state would leave the medium

available for use by another. 5. These general principles apply during both peace and war time. 6. Art. 2 of the Convention on the High Seas of 1958 provides: “The high seas

being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States:

a. Freedom of navigationb. Freedom of fishingc. Freedom to lay submarine cables and pipelined. Freedom to fly over the high seas

These freedoms and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.

7. The freedoms abovementioned are supported by arbitral jurisprudence and are inherent in many particular rules of law (ex. Fisheries case, Behring Sea Fisheries arbitration – freedom of fishing

8. Changes made by the 3rd UN Conference of the Law of the Sea:a. Legitimation of the exclusive economic zone to a maximum of 200

mile in breadth. Such zone according to the 1982 Convention on the Law of the Sea, the zone does not form part of the high seas (Art. 55 & 86) although some aspects of the regime of the high seas apply to the zone. This would confer jurisdiction on coastal states in respect of marine scientific research.

b. Creation of a special regime for the resources of the seabed and subsoil beyond the limits of the national jurisdiction under the control and management of the International Sea-bed Authority.

c. Freedom of fishing has been subjected to the reduction of area consequent upon exclusive economic zones and subject to certain conditions including duty to take or to co-operate with other states in taking such measures for their respective nationals as may be

necessary for the conservation of the living resources of the high seas. Activities involved in exploitation of the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction has also been limited and subject to the control of the International Sea-bed Authority.

d. Additional freedoms: freedom to construct artificial islands and other installations permitted under international law & freedom of scientific research, subject to Parts VI and XIII.

III. Maintenance of Order on the High Seas

1. By agreement of the states2. Convention on the High Seas confers power to stop and seize foreign

vessels by way of enforcement. 3. Party states are obliged to incorporate such prohibitions to their local

legislation and enforcement is performed by national courts in respect of local vessels and persons subject to their jurisdiction.

4. Enforcement is effected by the cooperation of international law and the national laws of the states possessing the maritime flag.

5. Every state is under a duty to fix the conditions for the grant of nationality to its ships for the registration of ships in its territory and for the right to fly its flag. Alongside such duty is the duty to fix conditions for granting nationality to its ships, for the registration of ships in its territory and for the right to fly its flag. Ships have the nationality of the state whose flag they are entitled to fly and each state has an obligation to issue to ships to which it has granted the right to fly its flag documents to that effect.

6. Essential Elements:a. Nationality of the ship b. Exclusive jurisdiction of the flag state over the ship (apart from

treaty provisions to the contrary) c. The right of approach to verify the right of a ship to fly its flag d. The imposition on the flag state of obligations in respect of the

maintenance of good order and general security on the high seas by customary rules and by treaties.

7. The ship without a nationality loses the protection of the law with respect to boarding and seizure on the high seas. But they are not completely outside the law and their occupants are still protected by elementary considerations of humanity.

8. Such ships should not be interfered with provided they do not attempt to exercise belligerent rights against foreign vessels and the lives of any neutral aliens on board are not threatened.

IV. Exceptions to the Principle of the Freedom of the High Seas (a) Rules of Customary Law

a. Piracy - Judge Moore in the Lotus case provides that a universal jurisdiction applies for an offense of piracy by law of nations, under which a person charged with such offense may be tried and punished by any nation into whose jurisdiction he may come. Piracy by law of nations in its jurisdictional aspects is sui generis which may differ from the local laws which likewise punish piracy but differ

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in its definition. A person who commits piracy in the high seas is denied the protection of his flag and is treated an outlaw, as the enemy of all mankind – hostis humani generis, whom any nation may capture and punish. - Definition: Art. 15 of the Convention on the High Seas represent the existing customary law and defines piracy to consist any of the following acts: (1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or passengers of a privateship or a private aircraft, and directed: (a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (3) Any act of inciting or of intentionally facilitating an act described in sub-paragraph (1) or (2) of this article. - must be committed for private ends, cannot be committed by warships or government vessels or aircraft except where the crew has mutinied and taken control of the vessel. - acts committed on board a ship by the crew and directed against the ship itself or against persons or property on the ship are not within the definition. - a “place outside the territorial jurisdiction of any State” refers to an island constituting terra nullius or the shore of an unoccupied territory.- Article 19 of the 1958 Convention on the High Seas provides: “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft or a ship taken by piracy and under the control of pirated and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of 3rd parties acting in good faith.” - This provision preserves the effect of the maxim “pirata non mutat dominium”: the rightful owner is not deprived of his title by virtue of acts of piracy relating to his goods. -Seizures on account of piracy may only be carried out by authorized war/military/government ships or aircrafts.

b. Other Illegal Acts Committed by Ships on the High Seas (other offenses which are not covered by the definition of piracy)

i. Insurgency- ships controlled by insurgents may not, without a

recognition of belligerency by third states exercising belligerent rights against the shipping of other states.

- Forcible interference of this kind is unauthorized by law and may be resisted by all available means.

ii. Unlawful Acts Committed with the Authority of a Lawful Government

- illegal attacks on or seizures of innocent merchant ships by warship or government ships result in the delictual responsibility of the aggressor’s flag state but the offending ships do not become pirate ships. In this case the belligerent is responsible as principal.

iii. Politically Motivated Operations by Organized Groups- harassing operations by organized groups deploying forces on the high seas may have political objectives and yet may be neither connected with insurgency against a particular government not performed by agents of a lawful government. Ships threatened by such activities may be protected and yet the aggressors may not be regarded as pirates.

iv. Unrestricted Submarine Warfare - Such condemnation rests on the convention where the Nyon Agreement took place by which 8 states agreed on collective measures against piratical acts committed by submarines are acts contrary to the most elementary dictates of humanity which should be justly treated as acts of piracy. The use of the term “piracy” adds nothing to the legal result.

c. The Right of Approach in Time of Peace i. For a system to maintain order to be successful it is

necessary to provide for an approach by warships in order to verify the identity and nationality of ships. This is recognized by customary law and exists in all circumstances but does not involve the actual examination of papers or seizure of vessels.

d. Visit, Search and Capture in Time of Peace i. No general right of search of foreign ships can be claimed

on the High Seas by any nation not a belligerent. ii. A right to resort to a threat or use of force to effect visit,

search and if justified, seizure of a ship only existed in the case of a known pirate ship or a ship the behavior of which gave reasonable grounds for suspecting her of piracy. This is corollary of the principle of the freedom of the seas and also of the rule that in general a merchant ship can only be boarded by a warship flying the same flag and therefore having a right of jurisdiction.

iii. 3 threats to stability of such legal regime: 1) extension of the concept of piracy; 2) claims to a right of self-defense on the high seas without defining the limits of such right; 3) definition of the right of approach or verification of flag which is expansive including mere suspicion of piracy which could be abused.

iv. Art. 22 of the 1958 Convention of the High Seas provide: “1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not just justified in boarding her unless there is reasonable ground for suspecting:

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(a) that the ship is engaged in piracy; or (b) that the ship is engaged in the slave trade; or (c) that though flying a foreign flag or refusing to

show its flag the ship in reality is of the same nationality as the warship.

2. In the case provided above, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked. It may proceed to a further examination on board the ship, which must be carried out with all possible consideration. 3. If the suspicions prove to be unfounded, and provided that the ship boarded had not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

v. The 1982 Law of the Sea Convention adds two additional justifications for boarding which are engaging in unauthorized broadcasting and in the case where the ship has no nationality. It also provides that the right of visit may be carried out by military aircrafts and also by any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.

vi. The act of boarding even when reasonable ground exists is a privilege and if no act justifying the suspicions has been committed by the ship boarded, there is strict liability and the flag state of the warship must compensate for any loss or damage. Severe penalty is justified in order for the right not to be abused as opined by the International Law Commission.

e. The Right of Self-defense i. The particular claim to visit and seize vessels on the high

seas may take the form of a security zone, a defense zone or a neutrality zone. But the use of force to detain vessels on the ground of security and self-defense find no legal basis in the absence of an attack on other shipping by the vessel sought to be detained. The International Law Commission and majority of states do not accept the legality of security zones and therefore are unlikely to regard an ambulatory exercise of a right of anticipatory self-defense with any favor.

ii. As stated in Art. 22 of the Convention on the High Seas, the commission stated that it is not advisable to include a provision regarding the right to board a vessel in the event a ship is being suspected of committing acts hostile to the state to which the warship belongs, at a time of imminent danger to the security of that State. This is due to the vagueness of such terms as “imminent danger” and “hostile acts”.

f. Blockade and Contraband

i. During wartime, exercise of belligerent rights will be justified and may take the form of blockades of the enemy’s ports and coasts. Enforcement of the blockade may take place on the high seas and neutral merchant ships may be confiscated if they attempt to break the blockade. The right of visit, search and capture may be exercised against neutral ships carrying contraband or engaged in acts of unneutral service.

g. The Right of Hot Pursuit i. Hall explains that when a vessel or someone on board her

while within foreign territory commits an infraction of its laws, she may be pursued into the open seas and there arrested. This can be done only when the vessel is still within the territorial waters or has only just escaped from them. The reason for this permission is that pursuit under these circumstances is a continuation of an act of jurisdiction which had been begun or which but for the accident of immediate escape would have been begun within the territory itself and that is necessary to permit it in order to enable the territorial jurisdiction to be efficiently exercised.

ii. It is an act of necessity, institutionalized and delimited by state practice.

iii. By the Hague Convention of 1930, there was already a sufficient evidence of general recognition by states.

iv. Art. 23 of the Convention on the High Seas of 1958 provides that the hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal state have good reason to believe that the ship has violated the laws and regulations of that state. Hot pursuit must be commenced in the coastal state’s territory or contiguous zones and may be continued outside of it provided that the pursuit is not interrupted. The vessel of coastal state need not be within its own territory when it commences a hot pursuit as long as the vessel being pursued is. Furthermore, the right of hot pursuit ceases as soon as the ship pursued enters its own country’s territorial sea or of a third state. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship. It may be undertaken by warships, military aircrafts or other ships or aircraft on government service specially authorized to that effect. Any loss or damage consequent on unjustified exercise of the right of pursuit is to be compensated.

h. Ships Without a Flagi. Ships flying no flag and refusing to show a flag when

called upon to do so in a proper manner may be boarded by the ships of any state.

(b) Restrictions by Treaty

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a. 1815 Treaties of Great Britain to other countries repressing slave-trade.

b. 1841 Treaty of London (among 5 states): provides that warships with special warrants could search, detail, or send in for trial suspected merchant ships flying the flags of contracting states.

c. 1890 General Act for the Repression of the Slave Trade at Brussels – provided limited right of search of suspected vessels in a defined zone. (this was abrogated by Treaty of St. Germany and the Slavery Conventions of 1926 & 1956 which do not provide for visit, search and seizure. The 1958 Convention on the High Seas provides though for a right of visit.)

d. Modern Fishery Conservation Agreements: 1953 US-Canada Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and the Bering Sea; 1986 Treaty Concerning Pacific Salmon; 1967 Convention on the Conduct of Fishing Operations in the North Atlantic; 1995 Straddling Stocks Agreement which creates a regime for conservation and management of straddling fish stocks and highly migratory fish stocks.

e. 1884 Convention for the Protection of Submarine Cables which confers the right to stop and verify the nationality of merchant ships suspected of breaking the treaty on warships of the signatories.

f. States have also been willing to provide for the mutual exercise of hot pursuit in treaties.

V. Jurisdiction Over Ships on the High Seas 1. The 1958 Convention on the High Seas affirm the general principle

enunciated in the Lotus case that vessels on the high seas are subject to no authority except that of the State whose flag they fly. In the absence of any territorial sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign vessels upon them. Art. 6 par. 1 provides that Ships shall sail under the flag of one State only and save in exceptional cases expressly provided for in international treaties or in these articles, hall be subject to its exclusive jurisdiction on the high seas. Such exceptions are piracy, slave-trade, hot pursuit, and the right of approach by warships where reasonable grounds exist for suspecting that a ships is of the same nationality as the warship.

2. Art. 2 par.1 of the 1958 Convention provides that in the event of a collision or of any other incident of navigation concerning a ship on the high seas, involving penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such persons except before the judicial or administrative authorities of either the flag State or of the State of which such person is a national.

VI. Oil Pollution Casualties, Pirate Radio And Terrorism1. With the rising and increasing incidents of pollution such as oil spills in the

high seas there has been a need for instituting remedial measures against ships of other nations who cause such great damage and harm to the sea. This led to the signing of an International Convention Relating to Intervention on the High Seas in Cases of Oil spill Pollution Casualties in 1969.

Furthermore, Art. 221 of the Law of the Sea convention of 1982 provides a protective measure which reserves the right of states to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coast line or related interests, including fisheries from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty which may reasonably be expected to result in major harmful consequences. The discharge of oil into the sea by ships is regulated by conventions an elaboration of duties of states in respect of the protection and conservation of the marine environment.

2. On a different matter, the Council of Europe sponsored the conclusion in 1965 of an Agreement for the Prevention of Broadcasts Transmitted from Stations outside National Territories which provides for the use in effective coordination, of criminal sanctions in national legal systems aimed both at nationals and aliens. The Law of the Sea Convention of 1982 provides for broad bases of jurisdiction and powers of arrest in respect of the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulations, but excluding the transmission of distress calls.

3. The suppression of terrorist activities against ships and the persons on board is the object of the convention for the Suppression of Unlawful Acts against the Safety of Marine Navigation adopted on March 10, 1988.

VII. The Seabed and Ocean Floor Beyond the Limits of National Jurisdiction

1. The Pre-existing Seabed Regime a. In principle, the seabed of the high seas is not susceptible of

appropriation by states and the regime of freedom of the high seas applies. However, historic title and prescription may play a rile and title to certain seabed (sedentary) fisheries (ex. pearl, oyster, sponge fisheries) has been obtained on the basis of prescription. Title to sedentary fishes probably involved the exclusive right to take the harvest rather than a right to the seabed as such. Sedentary fishes remain as a separate issue in 2 situation: (1) where certain historic rights are maintained is a shelf area appurtenant to another state and (2) where historic rights to sedentary fisheries of a coastal state on its own shelf are greater in extent than the rights granted by the legal regime of the continental shelf.

2. The Convention of 1982 & the International Sea-Bed Authority a. The 1994 Law of the Sea Convention contains a radical regime of

the internationalization of the mineral resources of the deep seabed. These resources and the are ocean floor and subsoil thereof beyond the limits of national jurisdiction are declared to ve the common heritage of mankind. In general, the treaty regime for the mineral resources of the Are co exists mutatis mutandis with the legal regime of the high seas. The treaty regime does not affect the legal status of the waters superjacent to the Area or that of the airspace above those waters.

b. The institutional underpinning of the regime relating to the resources of the Area consists of the International Sea-Bed

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Authority of which all states parties are ipso facto members which is empowered to organize and control activities in the Area.

c. The regime for the development of the resources of the Area has 6 key elements:

i. no state shall claim sovereignty or sovereign rights over any part of the Area or its resources and no State or natural or juridical person shall appropriate any part therof.

ii. Activities in the area shall be organized and controlled exclusively by the International Sea-Bed Authority and shall be carried out for the benefit of mankind as a whole.

iii. The system of public order, based upon state responsibility provides states parties shall have the responsibility to ensure that activities in the Area whether carried out by States Parties or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals shall be carried out in conformity with this Part. The same responsibility to international organizations for activities in the Area carried out by such organizations.

iv. They system of exploration and exploitation involves parallel activities by the Enterprise (an organ of the Authority) and by operators in accordance with Art. 153 which provides that activities in the area shall be carried out by the enterprise and in association with the Authority by States Parties or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals when sponsored by such States or any group of the foregoing which meets the requirements provided in this Part and in Annex III. Activities in the Area shall be carried out in accordance with a formal written plan of work drawn up in accordance with Annex III and approved by the Council after review by the Legal Technical Commission. The plan of work shall be in the form of contract in the case of activities in the Area carried out as authorized by the Authority. Such contracts may provide for joint arrangements.

v. The Authority shall provide for the equitable sharing of the economic benefits derived from activities in the Area.

vi. In the exercise of its powers and functions, the Authority may show special consideration for the interests of developing states.

3. Is the Regime of the International Sea-Bed Authority Binding Upon Non-Parties?

a. For states who have signed the convention the rule is that an obligation of good faith arises to refrain from acts calculated to frustrate the objects of the treaty.

b. As to nonparties, the US and certain developed countries opine that the ordinary regime of the freedom of the seas is applicable to the

resources of the deep seabed. This is opposed by a large majority of non-aligned states in the General Assembly represented by a group of 77. They take the view that the seabed beyond the limits of national jurisdiction is part of the common heritage of mankind and consequently not subject to unilateral exploitation. This group believes that their view reflect the present state of customary international law.

4. The Practical Accommodation of Competing Claims a. Different states such as the US have adopted legislation permitting

and regulating seabed mining. Those state which originally expected to stay outside the regime created by the Law of the Sea Convention created a Reciprocating States Regime involving mutual recognition of authorizations granted for deep seabed operations. Alongside these developments, the Preparatory Commission established by the Final Act of the 3rd UN Conference of the Law of the Sea has undertaken recognition of the so-called pioneer investors and the processing and registration of applications by states as pioneers investors or on behalf of other pioneer investors. The recent tendency has been to promote arrangement to prevent overlapping claims as between states within the Convention regime and others. The Preparatory Commission for the International Seabed Authority has declared that any claim, agreement or action regarding the are and its resources undertaken outside the preparatory commission which is incompatible with the UN Convention on the Law of the Sea and its related resolutions shall not be recognized.

a. Internal WatersNicaragua v. USSaudi Arabia v. ARAMCO

b. Territorial Sea

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UNCLOS Art. 27: Criminal jurisdiction on board a foreign ship.1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:(a) if the consequences of the crime extend to the coastal State;(b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;(c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or(d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.2. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters.3. In the cases provided for in paragraphs 1 and 2, the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall facilitate contact between such agent or officer and the ship's crew. In cases of emergency this notification may be communicated while the measures are being taken.


Anglo-Norwegian Fisheries Case El Salvador v. Honduras

United States vs. California 382 U.S. 448 (1965)

Note: This case deals with defining the terms....

The motion by the United States for the entry of a supplemental decree is granted and a supplemental decree is entered.

PER CURIAM.

In accordance with the Court's opinion in United States v. California, 381 U.S. 139, (1947) proposed decrees have been submitted by the parties. The Court has examined such proposed decrees and the briefs and papers submitted in support thereof, and enters the following decree:

SEA BED AND SUBSOIL OF THE CONTINENTAL SHELF BELONGS TO THE US, NOT INVIDIDUAL PERSONS OR THE STATE OF CA

1. As against the State of California and all persons claiming under it, the subsoil and seabed of the continental shelf, more than three geographical miles seaward from the nearest point or points on the coast line, at all times pertinent hereto have appertained and now appertain to the United States and have been and now are subject to its exclusive jurisdiction, control and power of disposition. The State of California has no title thereto or property interest therein.

DEFINITION OF TERMS2. As used herein, "coast line" means -

(a) The line of mean lower low water on the mainland, on islands, and on low-tide elevations lying wholly or partly within three geographical miles from the line of mean lower low water on the mainland or on an island; and

(b) The line marking the seaward limit of inland waters.

The coast line is to be taken as heretofore or hereafter modified by natural or artificial means, and includes the outermost permanent harbor works that form an integral part of the harbor system within the meaning of Article 8 of the Convention on the Territorial Sea and the Contiguous Zone, T. I. A. S. No. 5639.

3. As used herein -

(a) "Island" means a naturally-formed area of land surrounded by water, which is above the level of mean high water;

(b) "Low-tide elevation" means a naturally-formed area of land surrounded by water at mean lower low water, which is above the level of mean lower low water but not above the level of mean high water;

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4. In considering whether or in what manner an arrest should be made, the local authorities shall have due regard to the interests of navigation.5. Except as provided in Part XII or with respect to violations of laws and regulations adopted in accordance with Part V, the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters.

ART. 28: Civil jurisdiction in relation to foreign ships1. The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship.2. The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State.3. Paragraph 2 is without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.

ART. 29: Definition of warshipsFor the purposes of this Convention, "warship" means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.

ART.30: Non-compliance by warships with the laws and regulations of the coastal StateIf any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately.

ART. 31: Responsibility of the flag State for damage caused by a warship or other government ship operated for non-commercial purposes The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law.

ART. 32: Immunities of warships and other government ships operated for non-commercial purposesWith such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes.


(c) "Mean lower low water" means the average elevation of all the daily lower low tides occurring over a period of 18.6 years;

(d) "Mean high water" means the average elevation of all the high tides occurring over a period of 18.6 years;

(e) "Geographical mile" means a distance of 1852 meters (6076.10333 . . . U.S. Survey Feet or approximately 6076.11549 International Feet).

4. As used herein, "inland waters" means waters landward of the baseline of the territorial sea, which are now recognized as internal waters of the United States under the Convention on the Territorial Sea and the Contiguous Zone. The inland waters referred to in paragraph 2 (b) hereof include -

(a) Any river or stream flowing directly into the sea, landward of a straight line across its mouth;

(b) Any port, landward of its outermost permanent harbor works and a straight line across its entrance;

(c) Any "historic bay," as that term is used in paragraph 6 of Article 7 of the Convention, defined essentially as a bay over which the United States has traditionally asserted and maintained dominion with the acquiescence of foreign nations;

(d) Any other bay (defined as a well-marked coastal indentation having such penetration, in proportion to the width of its entrance, as to contain landlocked waters, and having an area, including islands within the bay, at least as great as the area of a semicircle whose diameter equals the length of the closing line across the entrance of the bay, or the sum of such closing lines if the bay has more than one entrance), landward of a straight line across its entrance or, if the entrance is more than 24 geographical miles wide, landward of a straight line not over 24 geographical miles long, drawn within the bay so as to enclose the greatest possible amount of water. An estuary of a river is treated in the same way as a bay.

5. In drawing a closing line across the entrance of any body of inland water having pronounced headlands, the line shall be drawn between the points where the plane of mean lower low water meets the outermost extension of the headlands. Where there is no pronounced headland, the line shall be drawn to the point where the line of mean lower low water on the shore is intersected by the bisector of the angle formed where a line projecting the general trend of the line of mean lower low water along the open coast meets a line projecting the general trend of the line of mean lower low water along the tributary waterway.

6. Roadsteads, waters between islands, and waters between islands and the mainland are not per se inland waters.

7. The inland waters of the Port of San Pedro are those enclosed by the breakwater and by straight lines across openings in the breakwater; but the limits of the port, east of the eastern end of the breakwater, are not determined by this decree.

8. The inland waters of Crescent City Harbor are those enclosed within the breakwaters and a straight line from the outer end of the west breakwater to the southern extremity of Whaler Island.

9. The inland waters of Monterey Bay are those enclosed by a straight line between Point Pinos and Point Santa Cruz.

10. The description of the inland waters of the Port of San Pedro, Crescent City Harbor, and Monterey Bay, as set forth in paragraphs 7, 8, and 9 hereof, does not imply that the three-mile limit is to be measured from the seaward limits of those inland waters in places where the three-mile limit is placed farther seaward by the application of any other provision of this decree.

11. The following are not historic inland waters, and do not comprise inland waters except to the extent that they may be enclosed by lines as hereinabove described for the enclosure of inland waters other than historic bays:

(a) Waters between the Santa Barbara or Channel Islands, or between those islands and the mainland;(b) Waters adjacent to the coast between Point Conception and Point Hueneme;(c) Waters adjacent to the coast between Point Fermin and Point Lasuen (identified as the bluffs at the end of the Las Bolsas Ridge at Huntington Beach);(d) Waters adjacent to the coast between Point Lasuen and the western headland of Newport Bay;(e) Santa Monica Bay;(f) Crescent City Bay;(g) San Luis Obispo Bay.

12. With the exceptions provided by 5 of the Submerged Lands Act, 67 Stat. 32, 43 U.S.C. 1313 (1964 ed.), and subject to the powers reserved to the United States by 3 (d) and 6 of said Act, 67 Stat. 31, 32, 43 U.S.C. 1311 (d) and 1314 (1964 ed.), the State of California is entitled, as against the United States, to the title to and ownership of the tidelands along its coast (defined as the shore of the mainland and of islands, between the line of mean high water and the line of mean lower low water) and the submerged lands, minerals, other natural resources and improvements underlying the inland waters and the waters of the Pacific Ocean within three geographical miles seaward from the coast line and bounded on the north and south by the northern and southern boundaries of the State of California, including the right and power to manage, administer, lease, develop and use the said lands and natural resources all in accordance with applicable State law. The United States is not entitled, as against the State of California, to any right, title or interest in or to said lands, improvements and natural resources except as provided by 5 of the Submerged Lands Act.

13. The parties shall submit to the Court for its approval any stipulation or stipulations that they may enter into, identifying with greater particularity all or any part of the boundary line, as defined by this decree, between the submerged lands of the United States and the submerged lands of the State of California, or identifying any of the areas reserved to the United States by 5 of the Submerged Lands Act. As to any portion of such boundary line or of any areas claimed to have been reserved under 5 of

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the Submerged Lands Act as to which the parties may be unable to agree, either party may apply to the Court at any time for entry of a further supplemental decree.

14. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree or to effectuate the rights of the parties in the premises.

c. StraitsCorfu Channel Case

d. Archipelagos

Analysis of the Archipelagic Doctrine in the New Convention on the Law of the Sea, by Jorge Coquia

The Third UN Conference on the Law of the Sea finally approved the Convention of the Law of the Sea on Apr. 30, 1982. The approval of the archipelagic doctrine is significant to the Philippines, as it, along with Indonesia, espoused this doctrine since the first and second UN Conference on the Law of the Sea.

Mid-Ocean Archipelagos

THE PROPOSAL. During the preparatory work for the First UN Conference (1958), the Philippines and Indonesia submitted proposals to treat mid-ocean archipelagos as one whole unit. In its position paper, the Philippines stated that “all waters around, between and connecting different islands belonging to the Philippine archipelago, irrespective of their width or dimension are necessary appurtenances of the land territory forming an integral part of the national or inland waters, subject to the exclusive sovereignty of the Philippines.” The Philippines maintained that its archipelago consists of a continuous chain of islands or islets in such a way that baselines could easily be drawn between appropriate points on outer islands or islets in such a way as to encircle the whole archipelago without crossing unreasonably large expanses of water and without infringing on the principles stated in the Anglo-Norwegian case. A rule that treated outlying archipelagos as a single unit and the waters lying between and within the islands as internal waters was thus proposed.

INDONESIA also declared that an archipelago should be measured as a unit, and the territorial sea measured from the baseline drawn between the outermost islands. Through a 1957 Proclamation, the Indonesian government enclosed its whole archipelago with one system of baselines. But to treat all the 3000+ Indonesian islands as having its own territorial waters would be problematic especially during war, i.e. wrt freedom of communication.

1960 SECOND CONFERENCE ON THE LAW OF THE SEA AT GENEVA, Indonesia introduced into the records Act No. 4 of its President, indicating straight baselines encircling all the islands of the archipelago and claiming all waters inside as internal. While the question of archipelagic State was also raised in this Conference, no agreement was reach and hence no decision was made on the position of archipelagos.

COMMENT OF PROF. FRANCOIS ON THE ISSUE: the territorial line for groups of islands should be the line linking the outermost islands and that the waters within such lines are internal waters. The only question was the maximum length of such lines.

Opinions of Jurists

C.J. COLOMBOS: the generally recognized rule appears to be that a group of islands forming an archipelago should be considered as a unit and the extent of the territorial waters be measured from the center of the archipelago. As to WON a group of islands form an archipelago is determined by geographical conditions but it also depends in some cases on historical or prescriptive grounds.

The Law of Territorial Waters and Maritime Jurisdiction

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UNCLOS ART. 49: Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast.2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein.3. This sovereignty is exercised subject to this Part.4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein.

ART. 52: Right of Innocent Passage1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3.2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published.

ART. 53: Right of archipelagic sea lanes passage1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary.


PHILIP JESSUP: archipelagos are considered as forming a unit and that the extent of the territorial waters is measured from the land farthest from the center. He didn’t propose a maximum distance between the islands. SWARZENBERGER: in case of islands forming a natural unit or archipelago, the establishment of a territorial jurisdiction is necessarily a gradual process. GIDEAL, in his Droit International Public de Lamer, accepts the view that archipelagos should be considered as a unit and that the longer baselines may be justified on the theory of “historic waters.”PODESTA COSTA & DIAZ CISNEROS: groups of islands forming an archipelago should be considered as a unit.HYDE: an island in the high sea… has its own territorial waters in marginal sea, measured three marine miles outward therefrom in the same manner as from the mainland. Where, however, a group of islands form a fringe or cluster along the ocean front of maritime State, it may be doubted whether there is evidence of any rule of International Law that obliges such state invariably to limit or measure its claim to the waters around them by the exact distance of each unit.HODGSON & ALEXANDER, in their Towards An Objective Analysis of Special Circumstance: Bays, Rivers, Coastal and Oceanic Archipelagos and Atolls, considered the diversity of conditions which could lead to a special regime for a mid-ocean archipelago.

Preparatory Work of the 3rd UN Conference

COMMITTEE. During its 23rd session, the UN GA adopted 4 resolutions: Res. 2467 A, B, C and D (XXII) establishing the Committee on the Peaceful Uses of the Sea Bed and Ocean Floor Beyond the Limits of National Jurisdiction. In GA Res. 2467 (XXIII), supplemented by Res. 2750 (XXV), the Committee’s mandate was reaffirmed and its composition enlarged. The Philippines was one of the 44 members.

SUB-COMMITTEES were later formed: 1. Sub-Committee I – preparing draft treaty articles embodying the international

regime, including the international machinery for the Area and the resources of the sea bed, ocean floor, and subsoil beyond the limits of national jurisdiction, taking into account the equitable sharing by all States in their benefits.

2. Sub-Committee II – preparing a comprehensive list of subjects and issues related to the law of the sea25 and to prepare draft treaty articles thereon.

3. Sub-Committee III – dealt with preservation of the marine environment and scientific research to prepare draft treaty articles thereon.

POSITION OF ARCHIPELAGIC STATES. Sub-Committee II referred to the question of the special position of archipelagic States in international law and to the various criteria which would determine WON groups of islands constitute an archipelago. It stated that the unity of an archipelagic state and the protection of its security, the preservation of its political and economic unity, and the preservation and exploitation of its marine environment justified the inclusion of the waters inside the archipelago under the sovereignty of the archipelagic State and the grant of a special status to such waters.

25 On the regimes of the high seas, the continental shelf, the territorial sea and the contiguous zone, fishing and conservation of the living resources of the high seas.

Also, it stated that this special status was an emerging concept and might be settled as part of an over-all solution of problems relating to the law of the sea.

Basic Principles of Archipelagic States

THE PRINCIPLE ON ARCHIPELAGIC DOCTRINE was submitted by the archipelagic States26 to the Seabed Committee on 14 Mar. 1973. Arturo Tolentino, Chairman of the Phil. delegation, said that the archipelagic concept is justified by the land, water and people inhabiting the island of the archipelagic State.

THE PRINCIPLES: 1. An archipelagic state, whose component islands and other natural features

form an intrinsic geographic, economic and political entity, and historically have or may have been regarded as such may draw straight baselines connecting the outermost points f the outermost islands and drying reefs of the archipelago from which the extent of the territorial sea of the archipelagic state is or may be determined.

2. The waters within the baselines, regardless of their depth or distance from the coast, the seabed and the subsoil thereof, and the superjacent airspace, as well as all their resources, belong and are subject to the sovereignty of the archipelagic state.

3. Innocent passage of foreign vessels through the waters of archipelagic State shall be allowed in accordance with its national legislation, having regard to the existing rules of international law. Such passage shall be through sealanes as may be designated for the purpose by the archipelagic State.

BASIS OF THE PRINCIPLES: the unity of the land, water and people into a single entity. It is for the purpose of achieving, maintaining, and preserving this unity that an archipelagic State is conceived as one whose component islands and other natural features form an intrinsic geographic, economic and political unity, and historically have or may have been regarded as such. This interrelation of geography, economics, politics, and history is important.

An archipelago must be considered an integral geographical entity, strengthened by political and economic unity and (sometimes) sustained through the years by historical continuity, from which its identity is derived. The fundamental factor is that they must have always been identified as distinct entities. These essential elements of unity are the bases for the archipelagic State’s desire to preserve its identity as one, as many islands compose it, with the consequent fragmentation of the nation. Due to this desire for unity, there should be an international recognition of the right of archipelagic States to draw straight baselines connecting the outermost points of the outermost islands and drying reefs of the archipelago from which the extent of the territorial sea is or may be determined. Within such baselines the waters, seabed, subsoil, superjacent airspace and their resources belong to and are subject to the sovereignty and exclusive jurisdiction of the archipelagic State, following the accepted principles on State sovereignty and jurisdiction. The third principle (on innocent passage) reconciles and harmonizes the peculiar national interest of the archipelagic States and those of the international community.

26 Fiji, Indonesia, Mauritius, and the Philippines

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Objections to the Archipelagic Concept

OBJECTION OF MARITIME POWERS, LED BY THE US: most of the island groups claiming to be archipelagic States lie astride some of the most important communication routes of the world and are likely to enclose very substantial marine areas. These maritime states suggested conditions for inclusion of the archipelagic doctrine in the Convention, like: a precise definition and limitation of the area to prevent the enclosure of far-flung islands, along with great expanses of water; a fairly reasonable land to water ratio; and maximum length of baselines. These would insure compactness and a reasonable unity of island. Maritime powers also insisted on the right of navigation and overflight through archipelagic water, since waters which should have been high seas or at least territorial waters would then become internal waters, curtailing freedom of navigation.

THE SECOND COMMITTEE’S SINGLE NEGOTIATING TEXT thus included the following provisions: water area to land area ratio is fixed between 1:1 and 9:1; maximum length of baselines shall not exceed 80 nautical miles; and baselines shall not depart to any appreciable extent from the general configuration of the archipelago.

Geographic Features of the Archipelagic States

PRECISE DEFINITION OF AN ARCHIPELAGIC STATE27: a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic, and political entity, or which historically have been regarded as such.

1. THE PHILIPPINES: consists of 7100 islands, with a combined land area of 300,000 sq. km. Water to land ratio is 5:1. The unity and compactness of this archipelago is clearly shown when it is enclosed by straight baselines joining the outermost points. Under these baselines, total area (including the water) is approximately 257,400 sq. miles and water to land ratio is approximately 1.9:1. There are 80 baselines with a total length of 2772 nautical miles. Most are relatively short, the longest being 2135 nautical miles.

2. INDONESIA: with 3000+ islands and total land area of 1.9 million sq. km. Its baselines are over 8167.6 nautical miles, enclosing approximately 666,100 sq. nautical miles, including the straits of Sunda, Sumba, Mollucca, and Macassar. Land to water ratio is 1:1.4. It has a very strategic position as its archipelagic waters lie among the major shipping lanes between the Middle East and Far East.

3. MAURITIUS: has a land area of 720 sq. m., and established straight baselines. But due to great distances between islands, it might not qualify under the required land to water ratio. One suggestion was to apply the system of straight baselines as to make this an archipelagic state with several archipelagos.

4. FIJI: has 844 islands and islets, total land area of 7055 sq. miles. It is crossed by 2 important shipping lanes, the Nanaku Passage and the Kandayu Strait. It adopted the straight baselines system but considers the waters within as

27 This was the reasonable criterion, suggested by maritime powers, which the archipelagic States accepted.

territorial seas, thus innocent passage is unrestricted. It’s a party to the 1958 Conventions on the Territorial Sea and the Contiguous Zone, High Seas, Fishing and Conservation of Living Resources, and Continental Shelf in 1971.

5. BAHAMAS: with 30 inhabited and uninhabited caves and rocks, and only 700 may be classified as islands and the rest (more than 1000) as rocks. It proposed the system of straight baselines, and water to land ratio is 9:1, with a maximum of 80 nautical miles of baselines.

6. PAPUA NEW GUINEA: legislated its archipelagic baselines and other maritime limits in 1978. The longest baseline is 120 nautical miles between the Northern terminus of the land boundary between Papua New Guinea, Indonesia, and Wuwuvilu Islands.

Other territories where archipelagic baselines may be considered: Australia, New Hebrides, New Zealand, Western Samoa, Solomon Island, and Tonga.

The Issue of Passage Through Archipelagic Waters

MOST PIVOTAL ISSUE: maritime powers’ claim of the right of unimpeded passage through archipelagic waters and freedom of overflight over said waters. This contention runs counter to the basic principle of an archipelagic state, that all waters within the baselines belong to and are subject to the sovereignty of the archipelagic state, which extend to the airspace above the waters and to the water column, seabed, subsoil, and all the resources contained therein. The waters within the baselines (being integral parts of the archipelago) are distinct and separate from those without, thus the archipelagic state’s rights over them should be greater than those waters in the territorial sea.

INFORMAL NEGOTIATING TEXT: Art. 124 provided for the right of innocent passage through archipelagic waters. Art. 125 allowed the archipelagic state to designate sealanes and sea routes, and recognized the right of navigation and overflight in the normal mode28 for the purpose of contiguous and expeditious transit through an archipelago. Example, normal mode of transit of a submarine is via submerged passage, hence the passage under normal mode is more liberal than the ordinary passage through territorial waters under the innocent passage concept. Art. 124, par. 8 limited the archipelagic state’s right to designate sealanes or traffic separation schemes by requiring it to refer the proposals to a competent organization, which must concur with the archipelagic state. If there is no agreement between them, there will be no designated sealanes or traffic separation schemes.

THE ARCHIPELAGIC STATES, to be consistent with the concept of sovereignty and to accommodate transit vessels, agreed to grant innocent passage of foreign vessels through designated sealanes suitable for safe and expeditious passage, though the archipelagic states may restrict the passage of certain vessels. If they weren’t allowed to designate sealanes, then the archipelagic waters would be open to foreign vessels, rendering the archipelagic doctrine meaningless. In designating sealanes, archipelagic states must consider the recommendation or technical advice of competent international organizations regarding the channels to be used.

28 Normal mode depends on the type of vessel/aircraft.

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A REVISED SINGLE NEGOTIATING TEXT, which reproduced all the provisions on archipelagic state, was submitted. All States enjoy the right of innocent passage through archipelagic waters in accordance with sec. 3, Chap. I of this Text. Archipelagic states may designate sealanes and air routes for foreign ships and aircraft, which enjoy the right of archipelagic sea lanes passage (this is the right of navigation and overflight in the normal mode for the purpose of continuous and expeditious transit between one part of the high seas/EEZ and another part of the high seas/EEZ. If no sea lanes/air routes were designated, this right may be exercised through routes normally used for international navigation.

Objections of the Philippines to Some Provisions of the Revised Text

RE: PASSAGE THROUGH TERRITORIAL WATERS, there must be a distinction between the passage of merchant ships and warships or vessels of special characteristics. The former may be allowed innocent passage, the latter only upon prior notification and/or consent. A single regime, that of innocent passage for normal or customary routes for international navigation, was proposed.

INCONSISTENCIES. While archipelagic states may designate sea lanes, these must include normal routes of passage for international navigation and be approved by a competent international organization29. If no sealanes were approved, then the routes normally used for international navigation will be the sea lanes. BUT for the territorial sea, the coastal State is free to designate sea lanes without the approval of any organization.

NUKES. Under Art. 21, for the territorial sea, coastal states may require tankers, ships bearing nuclear weapons/inherently dangerous or noxious substances to confine their passage to sealanes. This right isn’t given to archipelagic states. Also, Art. 22 requires these vessels, when exercising innocent passage through territorial sea, to carry documents and observe special precautionary measures. Again, no such provision for archipelagic states.

THE REVISED TEXT imposed more limitations on the sovereignty of the archipelagic State over its waters, which is a legal anomaly. The reverse should be the case, since territorial seas are outside the baselines and not an integral part of the State.

The Informal Composite Negotiating Text

THIS TEXT, produced during the 3rd UN Conference, continued to recognize archipelagic states which may constitute one or more archipelagos and may include other islands.

DEFINITION OF ARCHIPELAGIC STATE30: with all waters around, between, and connecting the islands irrespective of their breadth and dimensions forming part of the internal waters of the Philippines.

WRT BASELINES, the ICNT stated that archipelagic states may draw straight baselines joining the outermost points of the outermost islands and drying reefs of the

29 Under Art. 125.30 Same definition under Art. 1, Phil. Constitution.

Archipelago provided that within such baselines are included the main islands and an area in which the ratio of the are of the water to the area of the land, including atolls, is between 1:1 and 9:1, and the length shall not exceed 100 nautical miles. The breadth of the territorial sea, contiguous zone, exclusive economic zone, and continental shelf shall be measured from such baselines.

AFTER REVISIONS, THE ICNT was converted to the Draft Convention on the Law of the Sea. After still more revisions, the Draft Convention was finally approved on Apr. 30, 1982 on the last day of the 11th session of the Conference.

The Juridical Status of the Archipelagic State

CONTENTS OF THE DRAFT CONVENTION. The definition of archipelagic state and the right of the state to draw straight baselines were reiterated. Also reiterated the provisions on designation of sea lanes and the definition of archipelagic sea lanes passage.

SEA LANES shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes shall not deviate more than 25 nautical miles to either side of such axis lines during the passage, provided that ships and aircraft shall not navigate closer to the coasts than 10% of the distance between the nearest points on islands bordering the sea lanes.

TRAFFIC SEPARATION SCHEMES may be prescribed by the archipelagic State. Sea lanes and traffic schemes shall conform to generally accepted international regulations which shall be referred to the competent international organization. The organization may adopt only such sea lanes and traffic separation schemes as may be designated by the archipelagic state. If none is designated, passage may be exercised through the routes normally used for international navigation.

Some Observations on the Provisions on Archipelagic States

ON SOVEREIGNTY. While sovereignty over the enclosed waters, airspace, seabed and subsoil are recognized in Art. 49, this sovereignty is more limited than that over territorial waters.

a. Art. 52: all ships, without distinction, shall enjoy the right of innocent passage through archipelagic waters in accordance with the provisions on innocent passage in territorial waters; this is innocent passage through the normal/customary routes of navigation.

Art. 53: wrt power to designate air routes and sea lanes, these shall include all normal passage routes used as routes for international navigation or overflight. There will thus be 2 regimes of passage – innocent passage similar to that in territorial waters, and the archipelagic sea lanes passages which is a free transit of foreign vessels.b. Also remember the need to refer to the competent international organization

wrt designation of sea lanes passage, which isn’t found in the case of territorial waters.

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PHILIPPINES PROPOSED AMENDATORY PROVISIONS to distinguish the passage of warships, nuclear powered vessels, and those carrying nuclear/dangerous materials31. The Draft Convention had no such distinction wrt right of innocent passage. It was also proposed that the archipelagic state be given the power to promulgate such laws and regulations for the passage of warships, nuclear powered vessels, and those with nuclear/dangerous material. These amendments are particularly significant to an archipelagic state, like the Philippines, with very narrow passages (i.e. dangers to the security of the state).

The Archipelagic States and the Straits-States Proposal

DUE TO OBJECTIONS FROM MARITIME POWERS, who insisted on the unimpeded passage through archipelagic waters, some archipelagic states took the position that states have the right to designate sea lanes for warships and vessels of special characteristics. In the interest of international navigation the straits states offer innocent passage of commercial vessels through designated sea lanes. This led to the 8-point proposal of draft articles of navigation through the territorial sea including straits used for international navigation.

Conclusion

From the start of the 3rd UN Conference on the law of the sea, the maritime powers objected to the archipelagic doctrine as it limited the mobility of their naval vessels. Though they eventually accepted it, this acceptance was half-hearted as they introduced so many limits (i.e. water to land ratio, max. length of baselines, passage and overflights). Even the regime of the archipelagic waters was treated differently. While archipelagic principles considered the waters inside the baselines as internal waters, the opposition coined the word “archipelagic waters” to distinguish the regime over such waters. This distinction is clear in the Convention which makes the regime of waters, wrt jurisdiction of the archipelagic states, more liberal than territorial waters.

The archipelagic states also weren’t united during the negotiations. Except for the Philippines, they abandoned the principle that waters within the baselines (regardless of depth or distances) are internal waters and subject to the archipelagic state’s sovereignty.

While the archipelagic doctrine is now recognized, the regime of the archipelagic state over its waters has been curtailed. Sovereignty of the archipelagic state over the enclosed (internal) waters is recognized by this is limited especially wrt passage and oveflight of military vehicles. The Convention assured the unimpeded passage of all kinds of vessels. Aircraft in transit passage will observe the rules established by the International Civil Aviation Organization. During transit passage, foreign ships (including marine scientific research and hydrographic survey ships) may not carry out any research or survey activities without the prior authorization of the archipelagic state.

Corfu Channel Case

e. The Contiguous Zone

31 See above, under Objections of the Philippines.

f. The Continental ShelfNorth Sea Continental Shelf Case

CASE CONCERNING THE CONTINENTAL SHELF: LIBYAN ARAB JAMAHIRIYA/MALTA (3 June 1985)

LIBYA AND MALTA TELLS COURT OF THEIR SPECIAL AGREEMENT TO SUBMIT DISPUTE RE DELIMITATION OF CONTINENTAL SHELF.1. By a notification dated 19 July 1982, received in the Registry of the Court on 26 July 1982, the Secretary of the People's Committee for the People's Foreign Liaison Bureau of the Socialist People's Libyan Arab Jamahiriya and the Minister for Foreign Affairs of the Republic of Malta notified the Court of a Special Agreement in the Arabic and English languages signed at Valletta on 23 May 1976 between the Libya and Malta, providing for the submission to the Court of a dispute concerning the delimitation of the continental shelf between those two States; a certified copy of the Special Agreement was enclosed with the letter.

CONTENTS OF AGREEMENT.2. The authentic English text of the Special Agreement reads as follows:Article 1The Court is requested to decide the following question:What principles and rules of international law are applicable to the delimitation of the area of the continental shelf which appertains to the Republic of Malta and the area of continental shelf which appertains to the Libyan Arab Republic, and how in practice such principles and rules can be applied by the two Parties in this particular case in order that they may without difficulty delimit such areas by an agreement as provided in Article III.Article II1. The proceedings shall consist of written pleadings and oral hearings.2. Without prejudice to any question of the burden of proof, the written pleadings shall consist of the following documents :

(a) Memorials to be submitted simultaneously to the Court by each Party and exchanged with one another within a period of nine months from the date of the notification of this agreement to the Registrar of the Court.(b) Replies to be similarly submitted to the Court by each Party and exchanged with one another within four months after the date of the submissions of the Memorials to the Registrar.(c) Additional written pleadings may be presented and exchanged in the same manner within periods which shall be fixed by the Court at the request of one of the Parties, or if the Court so decides after consultation with the two Parties.

3. The question of the order of speaking at the oral hearings shall be decided by mutual agreement between the Parties but in al1 cases the order of speaking adopted shall be without prejudice to any question of the burden of proof.Article IIIFollowing the final decision of the International Court of Justice the Government of the Republic of Malta and the Government of the Libyan Arab Republic shall enter into negotiations for determining the area of their respective continental shelves and for concluding an agreement for that purpose in accordance with the decision of the Court.Article IV

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This agreement shall enter into force on the date of exchange of instruments of ratification by the two Governments, and shall be notified jointly to the Registrar of the Court."

UN SEC-GEN, ET AL. GIVEN COPY OF NOTIFICATION.3. Pursuant to Article 40, paragraph 3, of the Statute and to Article 42 of the Rules of Court, copies of the notification and Special Agreement were transmitted to the Secretary-General of the United Nations, the Members of the United Nations and other States entitled to appear before the Court.

PARTIES CHOSE A JUDGE AD HOC.4. Since the Court did not include upon the bench a judge of Libyan or of Maltese nationality, each of the Parties proceeded to exercise the right conferred by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case. The Libyan Arab Jamahiriya designated Mr. Eduardo Jiménez de Aréchaga, and Malta designated Mr. Jorge Castafieda ; on 13 October 1984 Mr. Castafieda resigned his functions for reasons of health, whereupon Malta designated Mr. Nicolas Valticos to take his place.

TIME-LIMITS FOR FILING MEMORIALS FIXED.5. By Orders of 27 July 1982 and 26 April 1983 respectively time-limits were fixed for the filing of a Memorial and a Counter-Memorial by each of the two Parties, and the Memorials and Counter-Memorials were duly filed within those time-limits, and exchanged between the Parties through the Registrar pursuant to the Special Agreement.

ITALY APPLIED TO INTERVENE; COURT DENIES.6. By an Application dated 23 October 1983 and received in the Registry of the Court on 24 October 1983, the Government of Italy, invoking Article 62 of the Statute, submitted to the Court a request for permission to intervene in the case. By a Judgment dated 21 March 1984, the Court found that the application of Italy for permission to intervene could not be granted.

TIME-LIMIT FOR REPLIES FIXED.7. By an Order dated 2 1 March 1984, the President of the Court, having regard to Article II, paragraph 2 (c), of the Special Agreement, quoted above, fixed a time-limit for the filing of Replies, which were filed and exchanged within the time-limit fixed.

PUBLIC SITTINGS HELD.8. On 26 to 30 November, 3 December, 6 to 7 December, 10 to 14 December 1984, and 4 to 5 February, 8 February, 11 to 13 February and 21 to 22 February 1985, the Court held public sittings at which it was addressed by the followingrepresentatives of the Parties: (enumeration deleted)

LIBYA’S EXPERTS EXAMINED.9. Professor Jan van Hinte, Dr. Derk Jongsma and Professor Icilio Finetti were called as experts by the Libyan Arab Jamahiriya, pursuant to Articles 57 and 63 to 65 of the Rules of Court. They were examined in chief by Professor D. W. Bowett, and Professor van Hinte was cross-examined by Mr. E. Lauterpacht. Professor Georges Mascle and Professor Carlo Morelli were similarly called as experts by Malta ; they were examined in chief by Mr. E. Lauterpacht, and cross-examined by Professor D. W. Bowett.

ITALY ASKS FOR COPY OF PLEADINGS; COURT DENIED BUT LATER PLEADINGS MADE AVAILABLE TO THE PUBLIC.10. Previously to its application for permission to intervene, referred to in paragraph 6 above, the Government of Italy, in reliance on Article 53, paragraph 1, of the Rules of Court, asked to be furnished with copies of the pleadings in the case. By a letter dated 13 October 1983, after the views of the Parties had been sought, and objection had been raised by the Government of Malta, the Registrar informed the Government of Italy that the Court had decided not to grant its request. On 26 November 1984 the Court decided, after ascertaining the views of the Parties pursuant to Article 53, paragraph 2, of the Rules of Court, that the pleadings should be made accessible to the public with effect from the opening of the oral proceedings, and they were thus at the same time made available to Italy.

MEMORIAL OF LIBYA.11. In the course of the written proceedings, the following submissions were presented by the Parties:

On behalf of the Socialist People's Libyan Arab Jamahiriya,in the Memorial : after a preamble not here quoted:"May it please the Court, rejecting all contrary claims and submissions, to adjudge and declare as follows :1. The delimitation is to be effected by agreement in accordance with equitable principles and taking account of all 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 pnnciples 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.

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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 all the other relevant circumstances of this case, by agreement on a delimitation within, and following the general direction of, the Rift Zone as defined in this Memorial";

in the Counter-Memorial and the Reply: after modified preambles not here quoted, the submissions as presented in the Memorial were repeated.

MEMORIAL OF MALTA.On behalf of the Republic of Malta,in the Memorial :

"May it please the Court to adjudge and declare that:(i) 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 ;(ii) 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" ;

in the Counter-Memorial and the Reply : the submissions as presented in the Memorial were repeated and confirmed.

FINAL SUBMISSIONS OF PARTIES.12. In the course of the oral proceedings, the following submissions were presented by the Parties :

On behalf of the Socialist People's Libyan Arab Jamahiriyaat the hearing of 22 February 1985, the final submissions of the Libyan Arab Jamahiriya were read, which were identical with those set out in the Memorial.On behalf of the Republic of Malta,at the hearing of 13 February 1985:"May it please the Court, . . . to declare and adjudge that :(i) 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 result ;(ii) 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 coasts of Libya."

CHANGE OF COURT’S COMPOSITION DUE TO TERM EXPIRY.13. Two Members of the Court (Judges Mosler and El-Khani) whose terms of office expired under Article 13, paragraph 1, of the Statute of the Court on 5 February 1985 have continued to participate in the present proceedings in accordance with paragraph 3 of Article 13. On 14 February 1985, the Court elected Judge Nagendra Singh as President of the Court and Judge de Lacharrière as Vice-President of the Court ; in accordance with Article 32, paragraph 2, of the Rules of Court, the Court as composed for the present proceedings has continued to sit under the presidency of Judge Elias.

GEOGRAPHICAL DESCRIPTION, TO OUTLINE GENERAL BACKGROUND ONLY.

14. It is appropriate to begin with a general description of the geographical context of the dispute before the Court, that is to Say the area in which the continental shelf delimitation has to be effected. It should however be emphasized that the only purpose of the description which follows is to outline the general background it is not intended to define in geographical terms the area which is relevant to the delimitation and the area in dispute between the Parties. The question whether the area in which the delimitation is to be effected has for any reason to be defined or contained within limits will be examined later in this Judgment (paragraphs 20-23). Similarly, the only purpose of Map No. 1 appended to the present Judgment is to give a general picture of the geographical context of the dispute, and no legal significance attaches to the choice of scale or the presence or absence of any particular geographical feature.

LIBYA AND MALTA’S GEOGRAPHY.15. Malta is a State made up of a group of four inhabited islands: Malta (246 sq km in area), Gozo (66 sq km), Comino (2.7 sq km), Cominotto (less than one-tenth of a square kilometre) ; and the uninhabited rock of Filfla. The 36" N parallel passes between the main island of Malta and the island of Gozo, which lie between the 14" E and 15" E meridians. The islands are situated in the Central Mediterranean, an area of the Mediterranean Sea which may be said broadly to be bounded by the eastern coast of Tunisia on the West, a part of the coast of Italy, with the southern and eastern coasts of the island of Sicily and the Ionian coast of the mainland up to the Strait of Otranto on the north, the western coast of Greece, from the island of Corfu to the southern tip of the Peloponnese and the island of Crete on the east, and on the south by the coast of the Socialist People's Libyan Arab Jamahiriya (hereinafter called "Libya"). Libya is a mainland State on the coast of North Africa covering a large area lying mainly between the 9" 30' E and 25" E meridians, and encompassing some 1,775,500 square kilometres. The coast of Libya stretches for more than 1,700 kilometres from Ras Ajdir in the West to near Port Bardia in the east.

16. The Maltese islands are oriented in an approximately northwest-southeast direction, and extend for a distance of some 44.5 kilometres (24 nautical miles). North of Malta, at a distance of some 80 kilometres (43 nautical miles) is the island of Sicily. The southeast tip of Malta lies approximately 340 kilometres (183 nautical miles) north of the nearest point on the coast of Libya, and the latter point is to be found some three-quarters of the distance along the most westerly segment of the Libyan coast, that running from the frontier with Tunisia at Ras Ajdir, somewhat south of east, through Ras Tajura to Ras Zarruq. At about the latter point, the Libyan coast swings southwards, forming the western end of the Gulf of Sirt, the coast at the back of which runs again somewhat south of east until, at about the meridian 20" E it swings round north and slightly West, then round to the eastward again through Benghazi to Ras Arnir. The general line of the coast from there to the frontier with Egypt is again somewhat south of eastwards.

MALTA AND ITALY AGREED FOR PROVISIONAL EXPLOITATION OF CONTINENTAL SHELF BETWEEN SICILY; ASIDE FROM THIS, NO OTHER AGREEMENT MADE BY LIBYA AND MALTA WITH OTHER NEIGHBORS. 17. In 1970 agreement was reached between Malta and Italy for provisional exploitation of the continental shelf in a short section of the channel between Sicily and Malta on each side of the median line, subject to any adjustments that might be made in subsequent negotiations. With this exception, neither of the Parties has yet established any agreed delimitation of continental shelf, or other maritime areas, with

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any neighbouring State. The question of the delimitation between Libya and Tunisia has been the subject of a Judgment of the Court (Continental Shelf (TunisialLibyan Arab Jamahiriya, 1982). Delimitations in this part of the Mediterranean have been effected by agreement between Italy and Greece, and between Italy and Tunisia. These delimitations are indicated in Map No. 1. Neither Party has proclaimed an exclusive economic zone, but Malta has proclaimed a 25-mile exclusive fishing zone. Malta has also defined straight baselines for the measurement of its territorial sea relying on Article 4 of the Convention on the Territorial Sea and the Contiguous Zone. Both Parties have granted a number of petroleum exploration concessions extending into areas material to the case.

QUESTION THE COURT IS TO DECIDE; CONTENTIONS OF THE PARTIES ON WHAT THE QUESTION SHOULD SETTLE.18. The terms of the Special Agreement by which the Court was seised of the present case have been set out in paragraph 2 of the present Judgment. The question which the Court is requested to decide is there defined as follows :

"What principles and rules of international law are applicable to the delimitation of the area of the continental shelf which appertains to the Republic of Malta and the area of continental shelf which appertains to the Libyan Arab Republic, and how in practice such principles and rules can be applied by the two Parties in this particular case in order that they may without difficulty delimit such areas by an agreement as provided in Article III."

The first part of the request is thus intended to resolve the differences between the Parties regarding the principles and rules of international law which are applicable in the present case; there is in this case no divergence of views between the Parties as to the task to be performed by the Court. As to the second part of the request, it has been stated before the Court that the wording of the Special Agreement in this respect was a compromise formula. Malta had wished the Court to be asked to draw the delimitation line, while Libya wanted it to be requested only to pronounce on the principles and rules of international law applicable. Libya would not accept that the line itself should be drawn by the Court since, in its view, it was preferable that this be done by agreement between the Parties. Malta did not agree that the matter be left to the Parties since it is of the view that the reference of the dispute to the Court would then fail to achieve its main purpose. While the Special Agreement as adopted does not request the Court itself to draw the line of delimitation between the areas of continental shelf appertaining to each Party, Malta, relying on the interpretation by the Court of the similarly worded Special Agreement in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), contends that "the Court should indicate the boundary which, in its view, would result from the application of such method as the Court may choose for the Parties to achieve the relevant determination". Malta emphasizes the purpose of the proceedings as being to enable the Parties to effect the delimitation "without difficulty", which could not, it argues, be achieved unless the Court were to state in the clearest possible terms how the exercise is to be carried out. Malta's submissions, accordingly, request a finding by the Court that the appropriate principles and rules are in practice to be applied by means of a specific line (a median line). Libya on the other hand maintains that the task of the Court in the present case does not extend so far as the actual determination of the delimitation line, and it need not specify or particularize one method of delimitation or one way by which in practice the principles and rules can be applied ; in Libya's view the goal to be reached is the result which would be in accord with equitable principles and represent the most

appropriate application of the existing principles and rules of international law. Accordingly, the submissions of Libya refer in broad terms to a delimitation by agreement on the basis of the Court's Judgment "within, and following the general direction of", a particular sea-bed area defined in the Libyan Memorial; it is explained that in its pleadings "Libya did not advance a precise line, since the Court's task is not to determine a precise line".

COURT WILL DECIDE BASED ON ASCERTAINMENT OF THE INTENT OF THE PARTIES PER THE SPECIAL AGREEMENT.19. Since the jurisdiction of the Court derives from the Special Agreement between the Parties, the definition of the task so conferred upon it is primarily a matter of ascertainment of the intention of the Parties by interpretation of the Special Agreement. The Court must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its full extent. The Special Agreement, unlike that by which the Court was seised in the Tunisia/Libya case, contains no reference to the indication of a method or methods of delimitation ; but since the Court is required to decide how in practice the principles and rules of international law can be applied in order that the Parties may delimit the continentalshelf by agreement "without difficulty", this necessarily entails the indication by the Court of the method or methods which it considers to result from the proper application of the appropriate rules and principles. Whether the Court should indicate an actual delimitation line will in some degree depend upon the method or methods found applicable: if, for example, the Court were to find that the equidistance method is required by the applicable law in the circumstances of this case, its finding to that effect would in fact dictate the delimitation line, since the nature of that method is such that any given set of base points will generate only one possible equidistance line. Other methods, however, less automatic in their operation, might require to be backed by more detailed indications of criteria by the Court, if the objective of an agreed delimitation reached "without difficulty" is to be achieved. The Court does not in any event consider that it is debarred by the terms of the Special Agreement from indicating a line. Even Libya, which contends that the task of the Court in the present case does not extend so far as the actual determination of the delimitation line, did in fact itself indicate on the map two possible lines for the purpose of illustrating a possible method which it considered would be likely to produce an equitable result. It should also be noted that both Parties have indicated that the consequences of the application of any method initially adopted are to be tested against certain criteria in order to check the equitableness of the result. It is not apparent how this operation could be performed unless that result took the form of at least an approximate line which could be illustrated on a map.

CONTENTIONS ON WHETHER COURT’S DECISION SHOULD COVER AREAS ALSO CLAIMED BY OTHER STATES NOT PARTIES TO THE PRESENT CASE.20. The delimitation contemplated by the Special Agreement is of course solely that between the areas of continental shelf appertaining to the Parties. It is no part of the task of the Court to define the legal principles and rules applicable to any delimitation between one or other of the Parties and any third State, let alone to indicate the practical application of those principles and rules to such delimitation. The Court is in fact aware of the existence of specific claims by a third State to areas which are also claimed by the Parties: these are the claims of Italy, which in 1984 made an application to the Court for permission to intervene under Article 62 of the Statute of the Court, and outlined to the Court in the course of the proceedings on that request the extent of its

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continental shelf claims in the direction of Libya and Malta. In its Judgment of 21 March 1984, by which it found that the Italian Application could not be granted, the Court explained that it "cannot wholly put aside the question of the legal interest of Italy as well as of other States of the Mediterranean region, and they will have to be taken into account" (I.C.J. Reports 1984). In the geographical context of the case it is also possible that there might be conflict between the claims of the Parties and such claims as may be made by Tunisia, though the Court has not been furnished with any information as to the views of that State as to its own entitlement vis-à-vis Malta. The Parties agree, however, as concerns the extent of the Court's decision, in contending that the Court should not feel inhibited from extending its decision to all areas which, independently of third party claims, are claimed by the Parties to this case, since if the Court were to exclude any such areas as are the subject of present or possible future claims by a third State it would in effect be deciding on such claims without jurisdiction to do so. Libya draws a distinction: the areas in which there are no claims by third States are the areas primarily in focus for the present proceedings and here the Parties can proceed to a definitive delimitation, whereas in areas where there are such claims, the caveats and reservations which the Court would include in its judgment would protect the rights of third States by precluding such a delimitation being definitive vis-à-vis such third States. Malta rejects this distinction, arguing that it would have no practical purpose and would be objectionable on jurisdictional grounds.

DECISION SHOULD BE LIMITED TO AREAS NOT CLAIMED ALSO BY NON-PARTY STATES.21. The Court notes that by the Special Agreement it is asked to define the legal principles and rules applicable to the delimitation of the area of continental shelf "which appertains" to each of the Parties. The decision of the Court will, by virtue of Article 59 of the Statute, have binding force between the Parties, but not against third States. If therefore the decision is to be stated in absolute terms, in the sense of permitting the delimitation of the areas of shelf which "appertain" to the Parties, as distinct from the areas to which one of the Parties has shown a better title than the other, but which might nevertheless prove to "appertain" to a third State if the Court had jurisdiction to enquire into the entitlement of that third State, the decision must be limited to a geographical area in which no such claims exist. It is true that the Parties have in effect invited the Court, notwithstanding the terms of their Special Agreement, not to limit its judgment to the area in which theirs are the sole competing claims; but the Court does not regard itself as free to do so, in view of the interest of Italy in the proceedings. When rejecting the application of Italy to intervene in the proceedings, the Court noted that both Malta and Libya opposed that application; while it stated that in its final judgment in this case

"the Court will, so far as it may find it necessary to do so, make it clear that it is deciding only between the competing claims of Libya and Malta",

it also went on to observe that"If, as Italy has suggested, the decision of the Court in the present case, taken without Italy's participation, had for that reason to be more limited in scope between the Parties themselves, and subject to more caveats and reservations in favour of third States, than it might otherwise have been had Italy been present, it is the interests of Libya and Malta which might be said to be affected, not those of Italy. It is material to recall that Libya and Malta, by objecting to the intervention of Italy, have indicated their own preferences."

The present decision must, as then foreshadowed, be limited in geographical scope so as to leave the claims of Italy unaffected, that is to Say that the decision of the Court

must be confined to the area in which, as the Court has been informed by Italy, that State has no claims to continental shelf rights. The Court, having been informed of Italy's claims, and having refused to permit that State to protect its interests through the procedure of intervention, thus ensures Italy the protection it sought. A decision limited in this way does not signify either that the principles and rules applicable to the delimitation within this area are not applicable outside it, or that the claims of either Party to expanses of continental shelf outside that area have been found to be unjustified: it signifies simply that the Court has not been.endowed with jurisdiction to determine what principles and rules govern delimitations with third States, or whether the claims of the Parties outside that area prevail over the claims of those third States in the region.

COURT WILL LIMIT ITS DECISION TO NOT INCLUDE AREAS CLAIMED BY THIRD STATES, DEFINED IN TERMS OF ITALY’S CLAIMS.22. The limits within which the Court, in order to preserve the rights of third States, will confine its decision in the present case, may thus be defined in terms of the claims of Italy, which are precisely located on the map by means of geographical coordinates. During the proceedings held on its application, Italy stated that it considered itself to have rights over a geographical zone delimited on the West by the meridian 15" 10' E, to the south by the parallel 34" 30' N, to the east by the delimitation line agreed between Italy and Greece (see Map No. 1) and its prolongation, and to the north by the Italian coasts of Calabria and Apulia; and over a second area delimited by lines joining the following points : (i) the south-eastern end-point of the line defined in the Agreement between Italy and Tunisia of 20 August 1971, (ii) points X and G, shown on a map submitted to the Court on 25 January 1984, (iii) the point 34" 20' N and 13" 50' E, and (iv) the point located on the meridian 13" 50' E, to the north of the previous point and to the east of the end-point mentioned under (i). (See Map No. 2). The Court, in replying to the question’s first part, will confine itself to areas where no claims by a third State exist (the area between the meridians 13" 50' E and 15" 10' E). The Court notes that there is on the east of this a further area of continental shelf, lying south of the parallel 34" 30' N, to which the claims of Italy do not extend but which is subject to conflicting claims by Libya and Malta. However the Court does not think that it is enabled to pass judgment on this area so long as the national attribution of the continental shelf lying immediately to the north of it (that is, east of the meridian 15" 10' E and north of the parallel34" 30' N) has not been settled by agreement between the States concerned or by the decision of a competent organ. The Court therefore concludes that on the basis of the geographical definition of the claims of Italy it should limit the area within which it will give a decision by the meridian 15" 10' E, including also that part of that meridian which is south of the parallel 34" 30' N. No question of this kind arises to the West of the meridian 13" 50' E, since the southward limit of Italian claims is the same as that of the claims of Malta; the area to the south is thus not in dispute in this case.

WON RIGHT OF THIRD STATES’ CLAIMS SHOULD ENABLE TO RESTRICT JUDGMENT.23. It has been questioned whether it is right that a third State (here, Italy) should be enabled, by virtue of its claims, to restrict the scope of a judgment requested of the Court by Malta and Libya; and it may also be argued that this approach would have prevented the Court from giving any judgment at all if Italy had advanced more ambitious claims. However, to argue along these lines is to disregard the special features of the present case. On the one hand, no inference can be drawn from the

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fact that the Court has taken into account the existence of Italian claims as to which it has not been suggested by either of the Parties that they are obviously unreasonable. On the other hand, neither Malta nor Libya seems to have been deterred by the probability of the Court's judgment being restricted in scope as a consequence of the Italian claims. The prospect of such a restriction did not persuade these countries to abandon their opposition to Italy's application to intervene; as noted in paragraph 21 above, the Court observed, in its Judgment of 21 March 1984, that in expressing a negative opinion on the Italian application, the two countries had shown their preference for a restriction in the geographical scope of the judgment which the Court was to give.

MALTA’S ALLEGATION OF LIBYA’S ACQUIESCENCE TO A MEDIAN LINE.24. The history of the dispute, and of the legislative and exploratory activities in relation to the continental shelf, do not require to be set out at length, since the Court does not find that anything of moment turns on considerations derived from this history. It is not argued by either Party that the circumstances in this case gave rise to "the appearance on the map of a defacto line dividing concession areas which were the subject of active claims", which might be taken into account as indicating "the line or lines which the Parties themselves may have considered equitable or acted upon as such", as the Court was able to find in the case concerning the Continental Sheif (Tunisia/ Libyan Arab Jamahiriya) (I. C. J. Reports 1982). In its pleadings, however, Malta recounted how it had in 1965 informed Libya of its intention to delimit its continental shelf by means of a median line, and stated that until Libya made a counterproposal in 1973, Libya remained silent in face of Malta's claim to such a delimitation; Malta contended that this pattern of conduct could be viewed "either as a cogent reflection of the equitable character of Malta's position or as evidence of acquiescence by Libya in Malta's position or as precluding Libya, in law as in fact, from challenging the validity of Malta's position". Malta referred also to the question of the northern boundaries of certain Libyan concessions, and the exemption of the licencees from the duty to carry out petroleum activities north of the median line, and contended that these also confirmed Malta's submission that "by their conduct, the Parties have indicated that the median line is, to Say the least, very relevant to the final determination of the boundary in the present case". Libya disputes the allegation of acquiescence; it has also contended that Maltese petroleum concessions followed geomorphological features in a manner consistent with the "exploitability criterion", which is denied by Malta. It also contended that Malta, at the time of the enactment of its 1966 Continental Shelf Act, implicitly recognized the significance of an area described as the "rift zone" area, which Libya, as will be explained below, regards as significant for the delimitation; this contention Malta also rejects.

BUT COURT UNABLE TO DISCERN ANY PATTERN OF CONDUCT AMOUNTING TO ACQUIESCENCE.25. The Court has considered the facts and arguments brought to its attention in this respect, particularly from the standpoint of its duty to "take into account whatever indicia are available of the [delimitation] line or lines which the Parties themselves may have considered equitable or acted upon as such" (I.C.J. Reports 1982). It is however unable to discern any pattern of conduct on either side sufficiently unequivocal to constitute either acquiescence or any helpful indication of any view of either Party as to what would be equitable differing in any way from the view advanced by that Party before the Court. Its decision must accordingly be based upon the application to the submissions made before it of principles and rules of international law.

PARTIES AGREE THAT DISPUTE IS TO BE GOVERNED BY CUSTOMARY LAW (SINCE NO AGREEMENT ON WHAT SOURCES OF LAW WOULD BE APPLICABLE).26. The Parties are broadly in agreement as to the sources of the law applicable in this case. Malta is a party to the 1958 Geneva Convention on the Continental Shelf, while Libya is not; the Parties agree that the Convention, and in particular the provisions for delimitation in Article 6, is thus not as such applicable in the relations between them. Both Parties have signed the 1982 UN Convention on the Law of the Sea, but that Convention has not yet entered into force, and is therefore not operative as treaty-law; the Special Agreement contains no provisions as to the substantive law applicable. Nor are there any other bilateral or multilateral treaties claimed to be binding on the Parties. The Parties thus agree that the dispute is to be governed by customary international law. This is not at all to Say, however, that the 1982 Convention was regarded by the Parties as irrelevant: the Parties are again in accord in considering that some of its provisions constitute, to a certain extent, the expression of customary international law in the matter. The Parties do not however agree in identifying the provisions which have this status, or the extent to which they are so treated.

COURT CONSIDERS THE 1982 UN CONVENTION ON THE LAW OF THE SEA (THEN NOT YET IN FORCE) AS APPLICABLE AS A RULE OF CUSTOMARY LAW; DISTINCTION BETWEEN THE LAW APPLICABLE TO THE BASIS OF ENTITLEMENT TO AREAS OF CONTINENTAL SHELF AND THE LAW APPLICABLE TO THE DELIMITATION OF SUCH AREAS OF SHELF BETWEEN NEIGHBOURING STATES.27. It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them. There has in fact been much debate between the Parties in the present case as to the significance, for the delimitation of – and indeed entitlement to - the continental shelf, of State practice in the matter, and this will be examined further at a later stage in the present judgment. Nevertheless, it cannot be denied that the 1982 Convention is of major importance, having been adopted by an overwhelming majority of States; hence it is clearly the duty of the Court, even independently of the references made to the Convention by the Parties, to consider in what degree any of its relevant provisions are binding upon the Parties as a rule of customary international law. In this context particularly, the Parties have laid some emphasis on a distinction between the law applicable to the basis of entitlement to areas of continental shelf - the rules governing the existence, "ipso jure and ab initio", and the exercise of sovereign rights of the coastal State over areas of continental shelf situate off its coasts – and the law applicable to the delimitation of such areas of shelf between neighbouring States. The first question is dealt with in Article 76 of the 1982 Convention, and the second in Article 83 of the Convention. Paragraph 1 of that Article provides 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."

Paragraph 10 of Article 76 provides that "The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts". That the questions of entitlement and of definition of

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continental shelf, on the one hand, and of delimitation of continental shelf on the other, are not only distinct but are also complementary is self-evident. The legal basis of that which is to be delimited, and of entitlement to it, cannot be other than pertinent to that delimitation.

CONVENTION WAS SILENT AS TO THE METHOD TO BE USED, IT JUST PRESCRIBED AN EQUITABLE SOLUTION.28. At this stage of the present Judgment, the Court would also first recall that, as it noted in its Judgment in Continental Shelf (TunisialLibyan Arab Jamahiriya),

"In the new text, any indication of a specific criterion which could give guidance to the interested States in their effort to achieve an equitable solution has been excluded. Emphasis is placed on the equitable solution which has to be achieved. The principles and rules applicable to the delimitation of continental shelf areas are those which are appropriate to bring about an equitable result . . ." (I. C.J. Reports 1982, p. 49, para. 50.)

The Convention sets a goal to be achieved, but is silent as to the method to be followed to achieve it. It restricts itself to setting a standard, and it is left to States themselves, or to the courts, to endow this standard with specific content. Secondly, the Court in 1982 observed the disappearance, in the last draft text of what became Article 83, paragraph 1, of reference to delimitation by agreement "in accordance with equitable principles" (I.C.J. Reports 1982, p. 49, para. 49). It found however that it was "bound to decide the case on the basis of equitable principles" as well as that "The result of the application of equitable principles must be equitable" (ibid., p. 59, para. 70).

PARTIES AGREE TO THE REQUIREMENTS SET BY THE CONVENTION (A “SOLUTION” THAT APPLIES “EQUITABLE PRINCIPLES”).29. In the present case, both Parties agree that, whatever the status of Article 83 of the 1982 Convention, which refers only to the "solution" as being equitable, and does not specifically mention the application of equitable principles, both these requirements form part of the law to be applied. In the first of Libya's submissions, the Court is asked to declare that

"The delimitation is to be effected by agreement in accordance with equitable principles and taking account of all relevant circumstances in order to achieve an equitable result."

The first submission of Malta reads:"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 result".

The Agent of Malta confirmed that Malta also accepts that the delimitation is to be effected in accordance with equitable principles and taking account of all relevant circumstances.

BUT PARTIES DISAGREE RE LEGAL BASIS OF TITLE TO CONTINENTAL SHELF RIGHTS.30. It is however with regard to the legal basis of title to continental shelf rights that the views of the Parties are irreconcilable; for Libya,

"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." (Submission No. 2.)

In Libya's view, the prolongation of the land territory of a State into and under the sea, referred to by the Court in the North Sea Continental Shelf cases, was a "geological fact" and natural prolongation in the same physical sense, involving geographical as well as geological and geomorphological aspects, remains the fundamental basis of legal title to continental shelf areas. For Malta, while it is still true to Say that the continental shelf of a State constitutes a natural prolongation of its land territory into and under the sea, prolongation is no longer defined by reference to physical features, geological or bathymetric, but by reference to a certain distance from the coasts. The concept of natural prolongation has in Malta's view become a purely spatial concept which operates independently of all geomorphological or geological characteristics, only resuming a physical significance beyond 200 miles from the coast, since States which possess a more extensive physical natural prolongation enjoy continental shelf rights to the edge of their continental margin. For Malta, the principle is the application of the "distance criterion"; continental shelf rights, whether extending without restraint into the open sea or limited by reference to a neighbouring State, are controlled by the concept of distance from the coasts.

MALTA RAISES THE LEGAL CONCEPT OF EXCLUSIVE ECONOMIC ZONE AS CONFIRMATION OF THE DISTANCE PRINCIPLES IN CONTINENTAL SHELF LAW.31. In this connection the question arises of the relationship, both within the context of the 1982 Convention and generally, between the legal concept of the continental shelf and that of the exclusive economic zone. Malta relies on the genesis of the exclusive economic zone concept, and its inclusion in the 1982 Convention, as confirming the importance of the "distance principle" in the law of the continental shelf and the detachment of the concept of the shelf from any criterion of physical prolongation. Malta has submitted that, in the present delimitation, account must betaken of the rules of customary law reflected in Article 76 of the Convention in the light of the provisions of the Convention concerning the exclusive economic zone. Malta's opinion is based on the statement made on this point by the Court itself in its 1982 Judgment, that "the definition given in paragraph 1 [of Article 76] cannot be ignored" and that the exclusive economic zone "may be regarded as part of modern international law" (I.C.J. Reports 1982, p. 48, para. 47 and p. 74, para. 100). For Malta, the "distance principle", referred to also by the Court itself, is accordingly included among the principles and rules of customary international law and should be taken into account. Malta emphasizes the development of the law in this field, and recalls that in its 1982 Judgment the Court stated: "the concept of natural prolongation . . . was and remains a concept to be examined within the concept of customary law and State practice" (ibid.,p. 46, para. 43).

LIBYA ARGUES THAT DISPUTE IS CONCERNED ONLY WITH DELIMITATION OF THE CONTINENTAL SHELF. 32. Libya, on the other hand, points out that this case is concerned only with the delimitation of the continental shelf, and emphasizes that the 1982 Convention has not yet come into force and is not binding as between the Parties to the present case. It contends that the "distance principle" is not a rule of positive international law with regard to the continental shelf, and that the "distance criterion", which may be applicable to the definition of the outer limit of the continental shelf in certain circumstances, if it applies at all to delimitation, is inappropriate for application in the Mediterranean. It is Libya's contention that the continental shelf has not been absorbed by the concept of the exclusive economic zone under present international law: and that the establishment of fishery zones and exclusive economic zones has not

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changed the law of maritime zone delimitation, or given more prominence to the criterion of distance from the coast. It also argues that, whereas the rights of the coastal State over its continental shelf are inherent and ab initio, rights over the exclusive economic zone exist only in so far as the coastal State chooses to proclaim such a zone. For Libya, the 1982 Convention on the Law of the Sea, particularly Article 78, maintains the dissociation of the legal regime of the continental shelf, the sea-bed and subsoil, from the regime of the superjacent waters.

COURT: CONTINENTAL SHELF AND EXCLUSIVE ECONOMIC ZONE ARE LINKED TOGETHER IN MODERN LAW.33. In the view of the Court, even though the present case relates only to the delimitation of the continental shelf and not to that of the exclusive economic zone, the principles and rules underlying the latter concept cannot be left out of consideration. As the 1982 Convention demonstrates, the two institutions - continental shelf and exclusive economic zone – are linked together in modern law. Since the rights enjoyed by a State over its continental shelf would also be possessed by it over the sea-bed and subsoil of any exclusive economic zone which it might proclaim, 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. This does not mean that the concept of the continental shelf has been absorbed by that of theexclusive economic zone ; it does however signify that greater importance must be attributed to elements, such as distance from the Coast, which are common to both concepts.

INSTITUTION OF EXCLUSIVE ECONOMIC ZONE IS SHOWN BY STATE PRACTICE TO HAVE BECOME PART OF CUSTOMARY LAW; LIBYA SEEMED TO HAVE RECOGNIZED THIS FACT; DISTANCE CRITERION MUST NOW APPLY TO THE CONTINENTAL SHELF AS WELL AS TO THE EXCLUSIVE ECONOMIC ZONE.34. For Malta, the reference to distance in Article 76 of the 1982 Convention represents a consecration of the "distance principle"; for Libya, only the reference to natural prolongation corresponds to customary international law. It is in the Court's view incontestable that, apart from those provisions, 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; in any case, Libya itself seemed to recognize this fact when, at one stage during the negotiation of the Special Agreement, it proposed that the extent of the exclusive economic zone be included in the reference to the Court. 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 regime 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 quite apart from the provision as to distance in paragraph 1 of Article 76. This is not to suggest that the idea of natural prolongation is now superseded by that of distance. What it does mean is that where the continental margin does not extend as far as 200 miles from the shore, natural prolongation, which in spite of its physical origins has throughout its history become more and more a complex and juridical concept, is in part defined by distance from the shore, irrespective of the physical nature of the intervening sea-bed and subsoil. The

concepts of natural prolongation and distance are therefore not opposed but complementary; and both remain essential elements in the juridical concept of the continental shelf. As the Court has observed, the legal basis of that which is to be delimited cannot be other than pertinent to the delimitation (paragraph 27, supra) ; 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.

LIBYA’S “RIFT ZONE” VS MALTA’S “DISTANCE”35. It will now be convenient in view of this conclusion to examine two important and opposed arguments of the Parties : first the Libyan "riftzone" argument, which depends upon giving primacy to the idea of natural prolongation, in the physical sense ; and second, the argument of Malta that, on the contrary, it is distance that is now the prime element ; and that, in consequence of this, equidistance, at least between opposite coasts, is virtually a required method, if only as the first stage in a delimitation.

LIBYA: NATURAL PROLONGATION STILL PRIMARY BASIS OF TITLE.36. As noted above, it is Libya's case that the natural prolongation, in the physical sense, of the land territory into and under the sea is still a primary basis of title to continental shelf. For Libya, as a first step each Party has to prove that the physical natural prolongation of its land territory extends into the area in which the delimitation is to be effected; if there exists a fundamental discontinuity between the shelf area adjacent to one Party and the shelf area adjacent to the other, then the boundary, it is contended, should lie along the general line of that fundamental discontinuity. The delimitation of continental shelf between Libya and Malta must therefore respect the alleged existence of a fundamental discontinuity which, according to Libya, divides the areas of physical continental shelf appertaining to each of the Parties (see final submissions 2 and 4). The argument is thus that there is no problem of overlapping shelves, but that, on the contrary, two distinct continental shelves are separated by what Libya calls the "rift zone".

WHERE THE RIFT ZONE IS.37. The sea-bed area so referred to by Libya lies broadly to the south and south-west of the Maltese islands, and much closer to them than to the coasts of Libya. In this area is a series of deep troughs, running in a generally northwest-southeast direction, and reaching over 1,000 metres in depth, described on the International Bathymetric Chart of the Mediterranean as the "Malta Trough", the "Pantelleria Trough" and the "Linosa Trough". To the east of these troughs, and running in broadly the same direction, are two channels of lesser depth designated the "Malta Channel" and the "Medina Channel". This "rift zone" area lies towards the northern extremity of the Pelagian Block, which the Court had occasion to examine in the Tunisia/Libya case in 1982. It should also be noted that to the east of the Pelagian Block is an area called by Libya the "Escarpment-Fault Zone", to which Libya also attributes importance ; however, the argument based upon it appears to the Court to be distinct from that concerning the "rift zone", and since the "Escarpment-Fault Zone" is beyond the limits, defined in paragraph 22 above, within which the present Judgment operates, it will not be further referred to, and the Court will express no view as to the validity of the arguments based upon it.

38. The Court was furnished by both Parties with considerable expert evidence, both written and oral, as to the geological history and nature of the area described as the "rift zone", on the basis of which it was contended by Libya, and controverted by Malta,

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that the rift zone indicated the boundary zone between Libya's entitlement to areas of continental shelf to the north of the Libyan landmass and Malta's entitlement to areas of continental shelf to the south of the Maltese islands, either as constituting geologically a boundary between two tectonic plates, or simply as a geomorphological feature of such importance as to constitute a very marked discontinuity. Since, however, this discontinuity is not a line but a zone, Libya allows that there remains a problem of delimitation confined to this "rift zone", to be settled by negotiation between the Parties, in implementation of Article III of the Special Agreement.

COURT: "RIFT ZONE" CANNOT CONSTITUTE A FUNDAMENTAL DISCONTINUITY TERMINATING THE SOUTHWARD EXTENSION OF MALTESE SHELF AND THE NORTHWARD EXTENSION OF THE LIBYAN AS IF IT WERE SOME NATURAL BOUNDARY.39. The Court however considers that since the development of the law enables a State to claim that the continental shelf appertaining to it extends up to as far as 200 miles from its coast, whatever the geological characteristics of the corresponding sea-bed and subsoil, there is no reason to ascribe any role to geological or geophysical factors within that distance either in verifying the legal title of the States concerned or in proceeding to a delimitation as between their claims. This is especially clear where verification of the validity of title is concerned, since, at least in so far as those areas are situated at a distance of under 200 miles from the coasts in question, title depends solely on the distance from the coasts of the claimant States of any areas of sea-bed claimed by way of continental shelf, and the geological or geomorphological characteristics of those areas are completely immaterial. It follows that, since 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 feature referred to as the "rift zone" cannot constitute a fundamental discontinuity terminating the southward extension of the Maltese shelf and the northward extension of the Libyan as if it were some natural boundary.

GEOPHYSICAL FACTOR NO PART TO PLAY HERE FOR DELIMITATION PURPOSES.40. Neither is there any reason why a factor which has no part to play in the establishment of title should be taken into account as a relevant circumstance for the purposes of delimitation. It is true that in the past the Court has recognized the relevance of geophysical characteristics of the area of delimitation if they assist in identifying a line of separation between the continental shelves of the Parties. In the North Sea Continental Sheif cases the Court said :

"it can be useful to consider the geology of that shelf in order to find out whether the direction taken by certain configurational features should influence delimitation because, in certain localities, they point-up the whole notion of the appurtenance of the continental shelf to the State whose territory it does in fact prolong" (I.C.J. Reports 1969).

Again, in the TunisialLibya case of 1982, the Court recognized that:"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" (I. C.J. Reports 1982)

and the Court remarked also that "a marked disruption or discontinuance of the sea-bed" may constitute "an indisputable indication of the limits of two separate continental shelves, or two separate natural prolongations" (ibid.). However to rely on this

jurisprudence would be to overlook the fact that where such jurisprudence appears to ascribe a role to geophysical or geological factors in delimitation, it finds warrant for doing so in a regime of the title itself which used to allot those factors a place which now belongs to the past, in so far as sea-bed areas less than 200 miles from the Coast are concerned.

REASONS WHY RIFT ZONE ARGUMENT IS REJECTED BY THE COURT.41. These juridical difficulties of the rift-zone argument are conclusive against it. Even had this not been so, there would still have been difficulties concerning the interpretation of the evidence itself. Having carefully studied that evidence, the Court is not satisfied that it would be able to draw any sufficiently cogent conclusions from it as to the existence or not of the "fundamental discontinuity" on which the Libyan argument relies. Doubtless the region has many geological or geomorphological features which may properly be described in scientific terms as "discontinuities". The endeavour, however, in the terms of the Libyan argument, was to convince the Court of a discontinuity so scientifically "fundamental", that it must also be a discontinuity of a natural prolongation in the legal sense; and such a fundamental discontinuity was said to be constituted by a tectonic plate boundary which the distinguished scientists called by Libya detected in the rift zone, or at least by the presence there of a very marked geomorphological feature. However the no less distinguished scientists called by Malta testified that this supposed "secondary" tectonic plate boundary was only an hypothesis, and that the data at present available were quite insufficient to prove, or indeed to disprove, its existence. The Court is unable to accept the position that in order to decide this case, it must first make a determination upon a disagreement between scientists ofdistinction as to the more plausibly correct interpretation of apparently incomplete scientific data; for a criterion that depends upon such a judgment or estimate having to be made by a court, or perhaps also by negotiating governments, is clearly inapt to a general legal rule of delimitation. For all the above reasons, the Court, therefore, rejects the so-called rift-zone argument of Libya.

COURT ALSO DOES NOT ACCEPT MALTA’S ARGUMENT OF DISTANCE PRINCIPLE.42. Neither, however, is the Court able to accept the argument of Malta - almost diametrically opposed to the Libyan rift-zone argument – that the new importance of the idea of distance from the coast has, at any rate for delimitation between opposite coasts, in turn conferred a primacy on the method of equidistance. As already noted, Malta rejects the view that natural prolongation in the physical sense is the basis of title of the coastal State, and bases its approach to continental shelf delimitation on the "distance principle": each coastal State is entitled to continental shelf rights to a certain distance from its coast, whatever may be the physical characteristics of the sea-bed and subsoil. Since there is not sufficient space between the coasts of Malta and Libya for each of them to enjoy continental shelf rights up to the full 200 miles recognized by international law, the delimitation process must, according to Malta, necessarily begin by taking into consideration an equidistance line between the two coasts. The delimitation of the continental shelf must start from the geographical facts in each particular case; Malta regards the situation as one of two coastal States facing each other in an entirely normal setting. Malta does not assert that the equidistance method is fundamental, or inherent, or has a legally obligatory character. It does argue that the legal basis of continental shelf rights - that is to Say, for Malta, the "distance principle" - requires that as a starting point of the delimitation process consideration must be given

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to a line based on equidistance; though it is only to the extent that this primary delimitation produces an equitable result by a balancing up of the relevant circumstances that the boundary coincides with the equidistance line. As a provisional point of departure, consideration of equidistance "is required" on the basis of the legal title.

43. The Court is unable to accept that, even as a preliminary and provisional step towards the drawing of a delimitation line, the equidistance method is one which must be used, or that the Court is "required, as a first step, to examine the effects of a delimitation by application of the equidistance method" (I.C.J. Reports 1982). Such a rule would come near to an espousal of the idea of "absolute proximity", which was rejected by the Court in 1969 (see I.C.J. Reports 1969), and which has since, moreover, failed of acceptance at the Third UN Conference on the Law of the Sea. That a coastal State may be entitled to continental shelf rights by reason of distance from the coast, and irrespective of the physical characteristics of the intervening sea-bed and subsoil, does not entail that equidistance is the only appropriate method of delimitation, even between opposite or quasi-opposite coasts, nor even the only permissible point of departure. The application of equitable principles in the particular relevant circumstances may still require the adoption of another method, or combination of methods, of delimitation, even from the outset.

STATES’ PRACTICE IN THE FIELD OF CONTINENTAL SHELF DELIMITATION, FALLS SHORT OF PROVING THE EXISTENCE OF A RULE PRESCRIBING USE OF EQUIDISTANCE METHOD .44. In this connection, something may be said on the subject of the practice of States in the field of continental shelf delimitation; the Parties have in fact discussed the significance of such practice, as expressed in published delimitation agreements, primarily in the context of the status of equidistance in present international law. Over 70 such agreements have been identified and produced to the Court and have been subjected to various interpretations. Libya questions the relevance of State practice in this domain, and has suggested that this practice shows, if anything, progressive disappearance of the distinction to be found in Article 6 of the 1958 Geneva Convention on the Continental Shelf, between "opposite" and "adjacent" States, and that there has since 1969 been a clear trend away from equidistance manifested in delimitation agreements between States, as well as in jurisprudence and in the deliberations at the UN Conference on the Law of the Sea. Malta rejects both these latter contentions, and contends that such practice need not be seen as evidence of a particular rule of customary law, but must provide significant and reliable evidence of normal standards of equity. The Court for its part has no doubt about the importance of State practice in this matter. Yet that practice, however interpreted, falls short of proving the existence of a rule prescribing the use of equidistance, or indeed of any method, as obligatory. Even the existence of such a rule as is contended for by Malta, requiring equidistance simply to be used as a first stage in any delimitation, but subject to correction, cannot be supported solely by the production of numerous examples of delimitations using equidistance or modified equidistance, though it is impressive evidence that the equidistance method can in many different situations yield an equitable result.

EQUITABLE RESULT, NOT THE MEANS USED TO ACHIEVE IT, MUST BE THE PRIMARY ELEMENT

45. Judicial decisions are at one - and the Parties themselves agree (paragraph 29 above) - in holding that the delimitation of a continental shelf boundary must be effected by the application of equitable principles in all the relevant circumstances in order to achieve an equitable result. The Court did of course remark in its 1982 Judgment that this terminology, though 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 this result" (I.C.J. Reports 1982). It is however the goal - the equitable result - and not the means used to achieve it, that must be the primary element in this duality of characterization. As the Court also said in its 1982 Judgment :

"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." (I. C. J. Reports 1982, p. 60, para. 71 .)

Yet the "Application of equitable principles is to be distinguished from a decision ex aequo et bono" and as the Court put it in its 1969 Judgment:

"it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles, in accordance with the ideas which have always underlain the development of the legal regime of the continental shelf in this field" (I. C.J. Reports 1969, p. 47, para. 85).

Thus the justice of which equity is an emanation, is not abstract justice but justice according to the rule of law; which is to Say that its application should display consistency and a degree of predictability; even though it looks with particularity to the peculiar circumstances of an instant case, it also looks beyond it to principles of more general application. This is precisely why the courts have, from the beginning, elaborated equitable principles as being, at the same time, means to an equitable result in a particular case, yet also having a more general validity and hence expressible in general terms; for, as the Court has also said, "the legal concept of equity is a general principle directly applicable as law" (I.C.J. Reports 1982, p. 60, para. 71).

NORMATIVE CHARACTER OF EQUITABLE PRINCIPLES AS PART OF INTERNATIONAL LAW.46. The normative character of equitable principles applied as a part of general international law is important because these principles govern not only delimitation by adjudication or arbitration, but also, and indeed primarily, the duty of Parties to seek first a delimitation by agreement, which is also to seek an equitable result. That equitable principles are expressed in terms of general application, is immediately apparent from a glance at some well-known examples : the principle that there is to be no question of refashioning geography, or compensating for the inequalities of nature ; the related principle of non-encroachment by one party on the natural prolongation of the other, which is no more than the negative expression of the positive rule that the coastal State enjoys sovereign rights over the continental shelf off its coasts to the full extent authorized by international law in the relevant circumstances ; the principle of respect due to all such relevant circumstances ; the principle that although all States are equal before the law and are entitled to equal treatment, "equity does not necessarily imply equality" (I. C. J. Reports 1969, p. 49, para. 9 l), nor does it seek to make equal what nature has made unequal ; and the principle that there can be no question of distributive justice.

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47. The nature of equity is nowhere more evident than in these well established principles. In interpreting them, it must be borne in mind that the geography which is not to be refashioned means those aspects of a geographical situation most germane to the legal institution of the continental shelf ; and it is "the coast of each of the Parties", which "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" (I.C.J. Reports 1982, p. 61, para. 74). In a semi-enclosed sea like the Mediterranean, that reference to neighbouring States is particularly apposite, for, as will be shown below, it is the coastal relationships in the whole geographical context that are to be taken account of and respected.

CIRCUMSTANCES MUST BE WEIGHED EVEN WITH THE APPLICATION OF EQUITABLE PRINCIPLES.48. The application of equitable principles thus still leaves the Court with the task of appreciation of the weight to be accorded to the relevant circumstances in any particular case of delimitation. There is a much quoted dictum of the Court in its 1969 Judgment to this effect:

"In fact, there is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures, and more often than not it is the balancing-up of all such considerations that will produce this result rather than reliance on one to the exclusion of all others. The problem of the relative weight to be accorded to different considerations naturally varies with the circumstances of the case." (I.C.J. Reports 1969, p. 50, para. 93.)

Yet although there may be no legal limit to the considerations which States may take account of, this can hardly be true for a court applying equitable procedures. For a court, although there is assuredly no closed list of considerations, it is evident that only those that 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, will qualify for inclusion. Otherwise, the legal concept of continental shelf could itself be fundamentally changed by the introduction of considerations strange to its nature.

LANDMASS NOT A BASIS OF ENTITLEMET TO CONTINENTAL SHELF RIGHTS.49. It was argued by Libya that the relevant geographical considerations include the landmass behind the coast, in the sense that that landmass provides in Libya's view the factual basis and legal justification for the State's entitlement to continental shelf rights, a State with a greater landmass having a more intense natural prolongation. The Court is unable to accept this as a relevant consideration. Landmass has never been regarded as a basis of entitlement to continental shelf rights, and such a proposition finds no support in the practice of States, in the jurisprudence, in doctrine, or indeed in the work of the Third UN Conference on the Law of the Sea. It would radically change the part played by the relationship between coast and continental shelf. The capacity to engender continental shelf rights derives not from the landmass, but from sovereignty over the landmass ; and it is by means of the maritime front of this landmass, in other words by its coastal opening, that this territorial sovereignty brings its continental shelf rights into effect. What distinguishes a coastal State with continental shelf rights from a landlocked State which has none, is certainly not the landmass, which both possess, but the existence of a maritime front in one State and its absence in the other. The juridical link between the State's territorial sovereignty and its rights to certain adjacent maritime expanses is established by means of its

coast. The concept of adjacency measured by distance is based entirely on that of the coastline, and not on that of the landmass.

ECONOMIC FACTORS AND SECURITY ARE ALSO NOT CONSIDERED.50. It was argued by Malta, on the other hand, that the considerations that may be taken account of include economic factors and security. Malta has contended that the relevant equitable considerations, employed not to dictate a delimitation but to contribute to assessment of the equitableness of a delimitation otherwise arrived at, include the absence of energy resources on the island of Malta, its requirements as an island developing country, and the range of its established fishing activity. The Court does not however consider that a delimitation should be influenced by the relative economic position of the two States in question, in such a way that the area of continental shelf regarded as appertaining to the less rich of the two States would be somewhat increased in order to compensate for its inferiority in economic resources. Such considerations are totally unrelated to the underlying intention of the applicable rules of international law. It is clear that neither the rules determining the validity of legal entitlement to the continental shelf, nor those concerning delimitation between neighbouring countries, leave room for any considerations of economic development of the States in question. While the concept of the exclusive economic zone has, from the outset, included certain special provisions for the benefit of developing States, those provisions have not related to the extent of such areas nor to their delimitation between neighbouring States, but merely to the exploitation of their resources. The natural resources of the continental shelf under delimitation "so far as known or readily ascertainable" might well constitute relevant circumstances which it would be reasonable to take into account in a delimitation, as the Court stated in the North Sea Continental Shelf cases (I.C.J. Reports 1969). Those resources are the essential objective envisaged by States when they put forward claims to sea-bed areas containing them. In the present case, however, the Court has not been furnished by the Parties with any indications on this point.

SECURITY CONSIDERATIONS NOT A PARTICULAR CONCERN HERE.51. Malta contends that the "equitable consideration" of security and defence interests confirms the equidistance method of delimitation, which gives each party a comparable lateral control from its coasts. Security considerations are of course not unrelated to the concept of the continental shelf. They were referred to when this legal concept first emerged, particularly in the Truman Proclamation. However, in the present case neither Party has raised the question whether the law at present attributes to the coastal State particular competences in the military field over its continental shelf, including competence over the placing of military devices. In any event, the delimitation which will result from the application of the present Judgment is, as will be seen below, not so near to the Coast of either Party as to make questions of security a particular consideration in the present case.

ISLAND STATE VS ISLAND POLITICALLY LINKED TO A MAINLAND STATE.52. A brief mention must also be made of another circumstance over the relevance of which the Parties have been in some contention. The fact that Malta constitutes an island State has given rise to some argument between the Parties as to the treatment of islands in continental shelf delimitation. The Parties agree that the entitlement to continental shelf is the same for an island as for mainland. However Libya insists that for this purpose no distinction falls to be made between an island State and an island politically linked with a mainland State; and further contends that while the entitlement

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is the same, an island may be treated in a particular way in the actual delimitation, as were the Channel Islands in the Decision of 30 June 1977 of the Court of Arbitration on the delimitation of the continental shelf between the UK and France. Malta explains that it does not claim any privileged status for island States, but does distinguish, for purposes of shelf delimitation, between island States and islands politically linked to a mainland State. It is only in the case of dependent islands, in Malta's view, that international law gives varying effect to them, depending on such factors as size, geographical position, population or economy.

53. In the view of the Court, it is not a question of an "island State" having some sort of special status in relation to continental shelf rights ; indeed Malta insists that it does not claim such status. It is simply that Malta being independent, the relationship of its coasts with the coasts of its neighbours is different from what it would be if it were a part of the territory of one of them. In other words, it might well be that the sea boundaries in this region would be different if the islands of Malta did not constitute an independent State, but formed a part of the territory of one of the surrounding countries. This aspect of the matter is related not solely to the circumstances of Malta being a group of islands, and an independent State, but also to the position of the islands in the wider geographical context, particularly their position in a semi-enclosed sea.

PRINCIPLE OF EQUALITY OF STATES IS NOT A CONSIDERATION.54. Malta has also invoked the principle of sovereign equality of States as an argument in favour of the equidistance method pure and simple, and as an objection to any adjustment based on length of coasts or proportionality considerations. It has observed that since all States are equal and equally sovereign, the maritime extensions generated by the sovereignty of each State must be of equal juridical value, whether or not the coasts of one State are longer than those of the other. The first question is whether the use of the equidistance method or recourse to proportionality considerations derive from legal rules accepted by States. If, for example, States had adopted a principle of apportionment of shelf on a basis of strict proportionality of coastal lengths (which the Court does not consider to be the case), their consent to that rule would be no breach of the principle of sovereign equality between them. Secondly, it is evident that the existence of equal entitlement, ipso jure and ab initio, of coastal States, does not imply an equality of extent of shelf, whatever the circumstances of the area; thus reference to the length of coasts as a relevant circumstance cannot be excluded apriori. The principle of equality of States has therefore no particular role to play in the applicable law.

PROPORTIONALITY FACTOR IS TAKEN INTO ACCOUNT.55. Libya has attached great importance to an argument based on proportionality (see Libyan submissions 5,6 and 7, set out in paragraph 11 above). Proportionality is certainly intimately related both to the governing principle of equity, and to the importance of coasts in the generation of continental shelf rights. Accordingly, the place of proportionality in this case calls for the most careful consideration. The 1969 Judgment in the North Sea Continental Shelf cases describes what it consistently refers to as the proportionality "factor" in the following terms :

"A final factor to be taken account of is the element of a reasonable degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines, - these

being measured according to their general direction in order to establish the necessary balance between States with straight, and those with markedly concave or convex coasts, or to reduce very irregular coastlines to their truer proportions." (I.C.J. Reports 1969, p. 52, para. 98.)

There is a further statement in the operative part (ibid., p. 54, para. 101 (D) (3)), and this is in the nature of things addressed specifically to the actual case then before the Court, and is accordingly somewhat differently qualified :

"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 coastal State and the length of its coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitation between adjacent States in the same region".

56. It is clear that what the Court intended was a means of identifying and then correcting the kind of distortion - disproportion - that could arise from the use of a method inapt to take adequate account of some kinds of coastal configuration: thus, for example, since an equidistance line is based on a principle of proximity and is therefore controlled only by salient coastal points, it may yield a disproportionate result where a coast is markedly irregular or markedly concave or convex. In such cases, the raw equidistance method may leave out of the calculation appreciable lengths of coast, whilst at the same time giving undue influence to others merely because of the shape of coastal relationships. In fact the proportionality "factor" arises from the equitable principle that nature must be respected : coasts which are broadly comparable ought not to be treated differently because of a technical quirk of a particular method of tracing the course of a boundary line.

57. It follows - and this also is evident from the 1969 Judgment – that proportionality is one possibly relevant "factor", among several other factors (see the whole of para. (D) of the operative part on pp. 53-54 of I.C.J. Reports 1969) "to be taken into account". It is nowhere mentioned amongst "the principles and rules of international law applicable to the delimitation" (ibid., p. 53, para. (C)). Its purpose was again made very clear in the Decision of 30 June 1977 of the Anglo-French Court of Arbitration, already referred to, which stated that :

"The concept of 'proportionality' merely expresses the criterion or factor by which it may be determined whether such a distortion results in an inequitable delimitation of the continental shelf as between the coastal States concerned. The factor of proportionality may appear in the form of the ratio between the areas of continental shelf to the lengths of the respective coastlines, as in the North Sea Continental Shelf cases. But it may also appear, and more usually does, as a factor for determining the reasonable or unreasonable - the equitable or inequitable - effects of particular geographical features or configurations upon the course of an equidistance-line boundary" (para. 100),

and went on to Say also that"there can never be a question of completely refashioning nature, such as by rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline; it is rather a question of remedying the disproportionality and inequitable effects produced by particular geographical configurations or features in situations where otherwise the appurtenance of

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roughly comparable attributions of continental shelf to each State would be indicated by the geographical facts. Proportionality, therefore is to be used as a criterion or factor relevant in evaluating the equities of certain geographical situations, not as a general principle providing an independent source of rights to areas of continental shelf." (Para. 101.)

The pertinent general principle, to the application of which the proportionality factor may be relevant, is that there can be no question of "completely refashioning nature"; the method chosen and its results must be faithful to the actual geographical situation.

LIBYA’S PROPORTIONALITY ARGUMENT GOES FURTHER.58. Both Parties appear to agree with these general propositions of law concerning the use of the proportionality factor or criterion. Nevertheless, Libya's proportionality argument in effect goes a good deal further. The fifth and sixth submissions of Libya are to the effect that

"Equitable principles do not require that a State possessing a restricted coastline be treated as if it possessed an extensive coastline";

and that"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."

These submissions have in argument been treated as ancillary to the fourth submission, whereby Libya contends that a criterion for delimitation can be derived from the principle of natural prolongation because of the presence of a fundamental discontinuity in the sea-bed and subsoil; but this submission - the rift-zone argument - has been rejected by the Court. Nothing else remains in the Libyan submissions that can afford an independent principle and method for drawing the boundary, unless the reference to the lengths of coastlines is taken as such. However, to use the ratio of coastal lengths as of itself determinative of the seaward reach and area of continental shelf proper to each Party, is to go far beyond the use of proportionality as a test of equity, and as a corrective of the unjustifiable difference of treatment resulting from some method of drawing the boundary line. If such a use of proportionality were right, it is difficult indeed to see what room would be left for any other consideration; for it would be at once the principle of entitlement to continental shelf rights and also the method of putting that principle into operation. Its weakness as a basis of argument, however, is that the use of proportionality as a method in its own right is wanting of support in the practice of States, in the public expression of their views at (in particular) the Third UN Conference on the Law of the Sea, or in the jurisprudence. It is not possible for the Court to endorse a proposal at once so far-reaching and so novel. That does not however mean that the "significant difference in lengths of the respective coastlines" is not an element which may be taken into account at a certain stage in the delimitation process; this aspect of the matter will be returned to at the appropriate stage in the further reasoning of the Court.

59. Libya has also placed particular reliance upon the 1982 decision in Continental Shelf (Tunisia/Libyan Arab Jamahiriya), in which the Court took note of the relationship of the lengths of the relevant coasts of the Parties, and compared that relationship with the ratio between the areas of continental shelf attributed to each Party. On the basis of figures for distances and ratios, the Court concluded that the result of the delimitation contemplated would "meet the requirements of the test of proportionality as an aspect of equity". Libya has in its pleadings and arguments carried out a similar

operation in the present case, in order to show that "a delimitation within, and following the general direction of, the Rift Zone" would clearly meet the test of proportionality. Neither the Court's findings as to the proper function of the concept of proportionality, set out above, nor its dismissal of the arguments based on geological or geophysical features in support of the rift zone, signify the rejection in principle of the applicability of the criterion of proportionality as a test of the equitableness of the result of a delimitation. The question of its practical applicability in the circumstances of this case however will fall to be examined once the Court has indicated the method of delimitation which results from the applicable principles and rules of international law.

HOW THE COURT WILL APPLY THE EQUITABLE PRINCIPLES.60. In applying the equitable principles thus elicited, within the limits defined above, and in the light of the relevant circumstances, the Court intends to proceed by stages; thus, it will first make a provisional delimitation by using a criterion and a method both of which are clearly destined to play an important role in producing the final result; it will then examine this provisional solution in the light of the requirements derived from other criteria, which may call for a correction of this initial result.

COURT’S CHOSEN CRITERION AND METHOD TO BE EMPLOYED IN THE FIRST PLACE; APPLICATION.61. The Court has little doubt which criterion and method it must employ at the outset in order to achieve a provisional position in the present dispute. The criterion is linked with the law relating to a State's legal title to the continental shelf. As the Court has found above, the law applicable to the present dispute, that is, to claims relating to continental shelves located less than 200 miles from the coasts of the States in question, is based not on geological or geomorphological criteria, but on a criterion of distance from the Coast or, to use the traditional term, on the principle of adjacency as measured by distance. It therefore seems logical to the Court that the choice of the criterion and the method which it is to employ in the first place to arrive at a provisional result should be made in a manner consistent with the concepts underlying the attribution of legal title.

62. The consequence of the evolution of continental shelf law can be noted with regard to both verification of title and delimitation as between rival claims. On the basis of the law now applicable (and hence of the distance criterion), the validity of the titles of Libya and Malta to the sea-bed areas claimed by those States is clear enough. Questions arise only in the assessment of the impact of distance considerations on the actual delimiting. In this assessment, account must be taken of the fact that, according to the "fundamental norm" of the law of delimitation, an equitable result must be achieved on the basis of the application of equitable principles to the relevant circumstances. It is therefore necessary to examine the equities of the distance criterion and of the results to which its application may lead. The Court has itself noted that the equitable nature of the equidistance method is particularly pronounced in cases where delimitation has to be effected between States with opposite coasts. In North Sea Continental Shelf it said that:

"The continental shelf area off, and dividing, opposite States [consists of] prolongations [which] meet and overlap, and can therefore only be delimited by means of a median line ; and, ignoring the presence of islets, rocks and rninor coastal projections, the disproportionally distorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved."

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In the next paragraph it emphasized the appropriateness of a median line for delimitation between opposite coasts (ibid.). But it is in fact a delimitation exclusively between opposite coasts that the Court is, for the first time, asked to deal with. It is clear that, in these circumstances, the tracing of a median line between those coasts, by way of a provisional step in a process to be continued by other operations, is the most judicious manner of proceeding with a view to the eventual achievement of an equitable result.

PROVISIONAL MEDIAN LINE MUST BE EXAMINED IN THE CONTEXT OF APPLYING EQUITABLE PRINCIPLES TO THE RELEVANT CIRCUMSTANCES.63. The median line drawn in this way is thus only provisional. Were the Court to treat it as final, it would be conferring on the equidistance method the status of being the only method the use of which is compulsory in the case of opposite coasts. As already pointed out, existing international law cannot be interpreted in this sense; the equidistance method is not the only method applicable to the present dispute, and it does not even have the benefit of a presumption in its favour. Thus, under existing law, it must be demonstrated that the equidistance method leads to an equitable result in the case in question. To achieve this purpose, the result to which the distance criterion leads must be examined in the context of applying equitable principles to the relevant circumstances.

64. An immediate qualification of the median line which the Court considers must be made concerns the basepoints from which it is to be constructed. The line put forward by Malta was constructed from the low-water mark of the Libyan coast, but with regard to the Maltese coast from straight baselines (inter alia) connecting the island of Malta to the uninhabited islet of Filfla. The Court does not express any opinion on whether the inclusion of Filfla in the Maltese baselines was legally justified; but in any event the baselines as determined by coastal States are not per se identical with the points chosen on a coast to make it possible to calculate the area of continental shelf appertaining to that State. In this case, the equitableness of an equidistance line depends on whether the precaution is taken of eliminating the disproportionate effect of certain "islets, rocks and minor coastal projections”, to use the language of the Court in its 1969 Judgment, quoted above. The Court thus finds it equitable not to take account of Filfla in the calculation of the provisional median line between Malta and Libya. Having established such a provisional median line, the Court still has to consider whether other considerations,including the factor of proportionality, should lead to an adjustment of that line being made.

65. In thus establishing, as the first stage in the delimitation process, the median line as the provisional delimitation line, the Court could hardly ignore the fact that the equidistance method has never been regarded, even in a delimitation between opposite coasts, as one to be applied without modification whatever the circumstances. Already, in the 1958 Convention on the Continental Shelf, which imposes upon the States parties to it an obligation of treaty-law, failing agreement, to have recourse to equidistance for the delimitation of the continental shelf areas, Article 6 contains the proviso that that method is to be used "unless another boundary line is justified by special circumstances". Similarly, during the drafting of the UN Convention on the Law of the Sea, the text which contained reference to the use of the equidistance method (later superseded by what is now Article 83, paragraph l), qualified that reference by indicating that the method should be used "where appropriate, and taking account of all

circumstances prevailing in the area concerned". Moreover in the practice of States as reflected in the delimitation agreements concluded and published, analysis of the delimitation line chosen, in relation to the coasts of the parties, or the appropriate basepoints, reveals in numerous cases a greater or lesser departure from the line which would have been produced by a strict application of the equidistance method. It is thus certain that, for the purposes of achieving an equitable result in a situation in which the equidistance line is prima facie the appropriate method, all relevant circumstances must be examined, since they may have a weight in the assessment of the equities of the case which it would be proper to take into account and to reflect in an adjustment of the equidistance line.

ANOTHER CONTENTION: COMPARATIVE SIZE OF MALTA AND LIBYA; ON THE DIFFERENCE IN THE LENGTHS OF THE RELEVANT COASTS OF THE PARTIES.66. The Court has already examined, and dismissed, a number of contentions made before it as to relevant circumstances in the present case. A further geographical circumstance on which Libya has insisted is that of the comparative size of Malta and of Libya. So far as "size" refers to landmass, the Court has already indicated the reasons why it is unable to regard this as relevant; there remains however the very marked difference in the lengths of the relevant coasts of the Parties, and the element of the considerable distance between those coasts referred to by both Parties, and to be examined below. In connection with lengths of coasts, attention should be drawn to an important distinction which appears to be rejected by Malta, between the relevance of coastal lengths as a pertinent circumstance for a delimitation, and use of those lengths in assessing ratios of proportionality. The Court has already examined the role of proportionality in a delimitation process, and has also referred to the operation, employed in the Tunisia/Libya case, of assessing the ratios between lengths of coasts and areas of continental shelf attributed on the basis of those coasts. It has been emphasized that this latter operation is to be employed solely as a verification of the equitableness of the result arrived at by other means. It is however one thing to employ proportionality calculations to check a result; it is another thing to take note, in the course of the delimitation process, of the existence of a very marked difference in coastal lengths, and to attribute the appropriate significance to that coastal relationship, without seeking to define it in quantitative terms which are only suited to the ex post assessment of relationships of Coast to area. The two operations are neither mutually exclusive, nor so closely identified with each other that the one would necessarily render the other supererogatory. Consideration of the comparability or otherwise of the coastal lengths is a part of the process of determining an equitable boundary on the basis of an initial median line; the test of a reasonable degree of proportionality, on the other hand, is one which can be applied to check the equitableness of any line, whatever the method used to arrive at that line.

67. In order to assess any disparity between lengths of coasts it is first necessary to determine which are the coasts which are being contemplated; but that determination need only be in broad terms. The question as to which coasts of the two States concerned should be taken into account is clearly one which has eventually to be answered with some degree of precision in the context of the test of proportionality as a verification of the equity of the result. Such a test would be meaningless in the absence of a precise definition of the "relevant coasts" and the "relevant area", of the kind which the Court carried out in the Tunisia/Libya case. Where a marked disparity requires to be taken into account as a relevant circumstance, however, this rigorous definition is not essential and indeed not appropriate. If the disparity in question only

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emerges after scrupulous definition and comparison of coasts, it is ex hypothesi unlikely to be of such extent as to carry weight as a relevant circumstance. It is in this light that the Court has here to consider the coasts of the Parties within the area to which, as explained above, its judgment relates; the question of the coasts and areas to be taken into account for application of the proportionality test is one which only arises at a later stage in the delimitation process.

NO QUESTION ARISES OF ANY LIMIT SET BY THIRD STATES’ CLAIMS TO THE RELEVANT COASTS OF MALTA UNDER CONSIDERATION. 68. Within the bounds set by the Court having regard to the existence of claims of third States, no question arises of any limit, set by third states’ claims, to the relevant coasts of Malta to be taken into consideration. On the Libyan side, Ras Ajdir, the terminus of the frontier with Tunisia, must clearly be the starting point; the meridian 15" 10' E which has been found by the Court to define the limits of the area in which the Judgment can operate crosses the coast of Libya not far from Ras Zarruq, which is regarded by Libya as the limit of the extent of its relevant coast. If the coasts of Malta and the coast of Libya from Ras Ajdir to Ras Zarruq are compared, it is evident that there is a considerable disparity between their lengths, to a degree which, in the view of the Court, constitutes a relevant circumstance which should be reflected in the drawing of the delimitation line. The coast of Libya from Ras Ajdir to Ras Zarruq, measured following its general direction, is 192 miles long, and the coast of Malta from Ras il-Wardija to Delimara Point, following straight baselines but excluding the islet of Filfla, is 24 miles long. In the view of the Court, this difference is so great as to justify the adjustment of the median line so as to attribute a larger shelf area to Libya ; the degree of such adjustment does not depend upon a mathematical operation and remains to be examined.

COURT CONSIDERS THE GENERAL GEOGRAPHICAL CONTEXT.69. In the present case, the Court has also to look beyond the area concerned in the case, and consider the general geographical context in which the delimitation will have to be effected. The Court observes that that delimitation, although it relates only to the continental shelf appertaining to two States, is also a delimitation between a portion of the southern littoral and a portion of the northern littoral of the Central Mediterranean. If account is taken of that setting, the Maltese islands appear as a minor feature of the northern seaboard of the region in question, located substantially to the south of the general direction of that seaboard, and themselves comprising a very limited coastal segment. From the viewpoint of the general geography of the region, this southward location of the coasts of the Maltese islands constitutes a geographical feature which should be taken into account as a pertinent circumstance; its influence on the delimitation line must be weighed in order to arrive at an equitable result.

ANOTHER REASON WHY MALTA’S CONTENTION RE MERIDIAN LINE IS NOT ACCEPTABLE.70. Enough has been said above to show why the Court is unable to accept the contention of Malta that the relationship of the coasts of Malta and Libya forms a "classical" and straightforward case for a simple application of the median line. It is true that the coasts are opposite and that the area between them is clear of any complicating features. But within the area to which the present Judgment relates the median line drawn by Malta is wholly controlled by two basepoints, on the islet of Filfla and on the southeastern extremity of the island of Malta; that is to Say base points some 11 kilometres apart. Even if the islet of Filfla be excluded as a basepoint, as the

Court has found that it should be, the line is controlled, within the area mentioned, only by points between Ras il-Qaws and Benghisa Point on the southwestern coast of the island of Malta. In either case, neither the receding westerly coast of the island of Malta, nor the island of Gozo, nor the straight baseline drawn from Ras il-Qaws to Ras il-Wardija, have any influence on the course of the median line. On the Libyan coast also, the basepoints controlling the line in the area mentioned are concentrated on a short stretch of coastline immediately east of Ras Tajura. Furthermore, it is well to recall the precise reason why the Court in its 1969 Judgment contrasted the effect of an equidistance line between opposite coasts and the effect between adjacent coasts. In the latter situation, any distorting effect of a salient feature might well extend and increase through the entire course of the boundary ; whilst in the former situation, the influence of one feature is normally quickly succeeded and corrected by the influence of another, as the course of the line proceeds between more or less parallel coasts.

DELIMITATION LINE MUST BE ADJUSTED TO BE CLOSER TO MALTESE COASTS.71. In the light of these circumstances, the Court finds it necessary, in order to ensure the achievement of an equitable solution, that the delimitation line between the areas of continental shelf appertaining respectively to the two Parties, be adjusted so as to lie closer to the coasts of Malta. Within the area with which the Court is concerned, the coasts of the Parties are opposite to each other, and the equidistance line between them lies broadly west to east, so that its adjustment can be satisfactorily and simply achieved by transposing it in an exactly northward direction.

WHAT WOULD BE THE EXTEREME LIMIT OF SUCH A SHIFT.72. Once it is contemplated that the boundary requires to be shifted northward of the median line between Libya and Malta, it seems appropriate first to establish what might be the extreme limit of such a shift. This is easily done and indeed the calculation is, in broad terms, apparent from any map of the area as a whole, showing the wider geographical context which the Court has found to be relevant. Let it be supposed, for the sake of argument, that the Maltese islands were part of Italian territory, and that there was a question of the delimitation of the continental shelf between Libya and Italy, within the area to which this Judgment relates. Again,between opposite coasts, with a large, clear area between them, that boundary would not then be the median line, based solely upon the coasts of Libya to the south and Sicily to the north. At least some account would be taken of the islands of Malta; and even if the minimum account were taken, the continental shelf boundary between Italy and Libya would be somewhat south of the median line between the Sicilian and Libyan coasts. Since Malta is not part of Italy, but is an independent State, it cannot be the case that, as regards continental shelf rights, it will be in a worse position because of its independence. Therefore, it is reasonable to assume that an equitable boundary between Libya and Malta must be to the south of a notional median line between Libya and Sicily; for that is the line, as we have seen, which allows no effect at all to the islands of Malta. The position of such a median line, employing the baselines on the coasts of Sicily established by the Italian Government, may be defined for present purposes by its intersection with the meridian 15" 10' E ; according to the information supplied to the Court, this intersection is at about latitude 34" 36' N. The course of that line evidently does not run parallel to that of the median line between Malta and Libya, but its form is, it is understood, not greatly different. The equidistance line drawn between Malta and Libya (excluding as basepoint the islet of Filfla), according to the information available to the Court, intersects that same meridian 15" 10' E at

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approximately 34" 12' N. A transposition northwards through 24' of latitude of the Malta-Libya median line would therefore be the extreme limit of such northward adjustment.

POSITION OF THE COURT THUS FAR.73. The position reached by the Court at this stage of its consideration of the case is therefore the following. It takes the median line (ignoring Filfla as a basepoint) as the first step of the delimitation. But relevant circumstances indicate that some northward shift of the boundary line is needed in order to produce an equitable result. These are first, the general geographical context in which the islands of Malta appear as a relatively small feature in a semi-enclosed sea; and secondly, the great disparity in the lengths of the relevant coasts of the two Parties. The next step in the delimitation is therefore to determine the extent of the required northward shift of the boundary line. Here, there are two important parameters which the Court has already mentioned above. First, there is the outside limit of any northward shift, of some 24' (see paragraph 72 above). Second, there is the considerable distance between the coasts (some 195' difference of latitude, in round terms, between Benghisa Point and the Libyan coast due south of that point), which is an obviously important consideration when deciding whether, and by how much, a median line boundary can be shifted without ceasing to have an approximately median location, or approaching so near to one coast as to bring into play other factors such as security. In the present case there is clearly room for a significant adjustment, if it is found to be required for acheving an equitable result.Weighing up these several considerations in the present kind of situation is not a process that can infallibly be reduced to a formula expressed in actual figures. Nevertheless, such an assessment has to be made, and the Court has concluded that a boundary line that represents a shift of around three-quarters of the distance between the two outer parameters - that is to say between the median line and the line 24' north of it - achieves an equitable result in all the circumstances. It has therefore decided that the equitable boundary line is a line produced by transposing the median line northwards through 18' of latitude. By "transposing" is meant the operation hereby to every point on the median line there will correspond a point on the line of delimitation, lying on the same meridian of longitude but 18' further to the north. Since the median line intersects the meridian 15" 10' E at 34" 12' N approximately, the delimitation line will intersect that meridian at 34" 30' N approximately ; but it will be for the Parties and their experts to determine the exact position of the line resulting from the northward transposition by 18'. The course of the delimitation line dictated by the method adopted is shown, for the purposes of illustration only, on Map No. 3 appended hereto.

DIFFICULTY IN APPLYING PROPORTIONALITY TEST.74. There remains the aspect which the Court in the North Sea Continental Shelf cases called "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". In the view of the Court, there is no reason of principle why the test of proportionality, more or less in the form in which it was used in the Tunisial Libya case, namely the identification of "relevant coasts", the identification of "relevant areas" of continental shelf, the calculation of the mathematical ratios of the lengths of the coasts and the areas of shelf attributed, and finally the comparison of such ratios, should not be employed to verify the equity of a delimitation between opposite coasts, just as well as between adjacent coasts. However, there may well in such a case be practical

difficulties which render it inappropriate in that form. These difficulties are particularly evident in the present case where, in the first place, the geographical context is such that the identification of the relevant coasts and the relevant areas is so much at large that virtually any variant could be chosen, leading to widely different results; and in the second place the area to which the Judgment will in fact apply is limited by reason of the existence of claims of third States. To apply the proportionality test simply to the areas within these limits would be unrealistic; there is no need to stress the dangers of reliance upon a calculation in which a principal component has already been determined at the outset of the decision, not by a consideration of the equities, but by reason of quite other preoccupations of the Court. Yet to apply proportionality calculations to any wider area would involve two serious difficulties. First, there is the probability that future delimitations with third States would overthrow not only the figures for shelf areas used as basis for calculations but also the ratios arrived at. Secondly, it is the result of the delimitation line indicated by the Court which is to be tested for equitableness; but that line does not extend beyond the meridians 13" 50' E to the West and 15' 10' E to the east. To base proportionality calculations on any wider area would therefore involve an artificial prolongation of the line of delimitation, which would be beyond the jurisdiction of the Court, even by way of hypothesis for an assessment of the equities within the area to which the Judgment relates.

NO EVIDENT DISPROPORTION IN THE AREAS OF SHELF ATTRIBUTED TO THE PARTIES.75. This does not mean, however, that the Court is debarred from considering the equitableness of the result of the delimitation which it has in contemplation from the viewpoint of the proportional relationship of coasts and continental shelf areas. The Court does not consider that an endeavour to achieve a predetermined arithmetical ratio in the relationship between the relevant coasts and the continental shelf areas generated by them would be in harmony with the principles governing the delimitation operation. The relationship between the lengths of the relevant coasts of the Parties has of course already been taken into account in the determination of the delimitation line; if the Court turns its attention to the extent of the areas of shelf lying on each side of the line, it is possible for it to make a broad assessment of the equitableness of the result, without seeking to define the equities in arithmetical terms. The conclusion to which the Court comes in this respect is that there is certainly no evident disproportion in the areas of shelf attributed to each of the Parties respectively such that it could be said that the requirements of the test of proportionality as an aspect of equity were not satisfied.

SUMMARY OF WHAT THE COURT TOOK UP.76. Having thus completed the task conferred upon it by the Special Agreement, the Court will briefly summarize the conclusions reached in the present Judgment. The Court has found that that task is to lay down the principles and rules of international law which should enable the Parties to effect a delimitation of the areas of continental shelf between the two countries in accordance with equitable principles and so as to achieve an equitable result. In doing so, the Court considers that the terms of the Special Agreement also make it its duty to define as precisely as possible a method of delimitation which should enable both Parties to delimit their respective areas of continental shelf "without difficulty", following the Court's decision in the case. The Court has however to look beyond the interests of the Parties themselves; it has, as explained above, to leave unaffected the possible claims of third States in the region, which are outside the competence of the Court in the present case, and thus remain

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unresolved. While every case of maritime delimitation is different in its circumstances from the next, only a clear body of equitable principles can permit such circumstances to be properly weighed, and the objective of an equitable result, as required by general international law, to be attained.

77. The Court has thus had occasion to note the development which has occurred in the customary law of the continental shelf, and which is reflected in Articles 76 and 83 of the UN Convention on the Law of the Sea, concerning the relationship between the concept of the continental shelf as the natural prolongation of the land territory of the coastal State and the factor of distance from the coast. As the Court has explained, in a geographical situation like that with which the present case is concerned, where a single continental shelf falls to be delimited between two opposite States, so that no question arises, as between those States, of delimitation by reference to a continental margin extending beyond 200 miles from the baselines round the coast of either State, the legal concept of natural prolongation does not attribute any relevance to geological or geophysical factors either as basis of entitlement or as criterion for delimitation. Each coastal State is entitled to exercise sovereign rights over the continental shelf off its coasts for the purpose of exploring it and exploiting its natural resources (Art. 77 of the Convention) up to a distance of 200 miles from the baselines - subject of course to delimitation with neighbouring States - whatever the geophysical or geological features of the sea-bed within the area comprised between the Coast and the 200-mile limit. The introduction of this criterion of distance has not however had the effect of establishing a principle of "absolute proximity" or of conferring upon the equidistance method of delimitation the status of a general rule, or an obligatory method of delimitation, or of a priority method, to be tested in every case (cf. Continental Shelf (Tunisia/Libyan Arab Jamahiriya). The fact that the Court has found that, in the circumstances of the present case, the drawing of a median line constitutes an appropriate first step in the delimitation process, should not be understood as implying that an equidistance line will be an appropriate beginning in all cases, or even in all cases of delimitation between opposite States.

78. Having drawn the initial median line, the Court has found that that line requires to be adjusted in view of the relevant circumstances of the area, namely the considerable disparity between the lengths of the coasts of the Parties here under consideration, the distance between those coasts, the placing of the basepoints governing any equidistance line, and the general geographical context. Taking these into consideration, and setting as an extreme limit for any northward displacement of the line the notional median line which, on the hypothesis Of a delimitation between Italy and Libya on the basis of equidistance, in the area to which the Judgment relates, would deny any effect whatever to Malta, the Court has been able to indicate a method making it possible for the Parties to determine the location of a line which would ensure an equitable result between them. This line gives a result which seems to the Court to meet the requirements of the test of proportionality, and more generally to be equitable, taking into account all relevant circumstances.

VOTATION.79. For these reasons, by fourteen votes to three, finds that, with reference to the areas of continental shelf between the coasts of the Parties within the limits defined in the present Judgment, namely the meridian 13" 50' E and the meridian 15" 10' E: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 Socialist People's Libyan Arab Jamahiriya and to the Republic of Malta respectively are as follows :(1) the delimitation is to be effected in accordance with equitable principles and taking account of al1 relevant circumstances, so as to arrive at an equitable result ;(2) the area of continental shelf to be found to appertain to either Party not extending more than 200 miles from the coast of the Party concerned, no criterion for delimitation of shelf areas can be derived from the principle of natural prolongation in the physical sense.B. The circumstances and factors to be taken into account in achieving an equitable delimitation in the present case are the following :(1) the general configuration of the coasts of the Parties, their oppositeness, and their relationship to each other within the general geographical context ;(2) the disparity in the lengths of the relevant coasts of the Parties and the distance between them ;(3) the need to avoid in the delimitation any excessive disproportion between the extent of the continental shelf areas appertaining to the coastal State and the length of the relevant part of its coast, measured in the general direction of the coastlines.C. In consequence, an equitable result may be arrived at by drawing, as a first stage in the process, a median line every point of which is equidistant from the low-water mark of the relevant coast of Malta (excluding the islet of Filfla), and the low-water mark of the relevant coast of Libya, that initial line being then subject to adjustment in the light of the above-mentioned circumstances and factors.D. The adjustment of the median line referred to in subparagraph C above is to be effected by transposing that line northwards through 18' of latitude (so that it intersects the meridian 15" 10' E at approximately latitude 34" 30' N) such transposed line then constituting the delimitation line between the areas of continental shelf appertaining to the Socialist People's Libyan Arab Jamahiriya and to the Republic of Malta respectively.

AEGEAN SEA CONTINENTAL SHELF CASE: GREECE v. TURKEY (19 DEC. 1978)

Note: This decision primarily focuses on WON the ICJ has jurisdiction, it doesn’t go into the substantial matter of the dispute which is the delimitation of the Aegean Sea Continental Shelf.

SUBMISSIONS.GREECE: Government of Greece requests the Court to adjudge and declare:

(i) that the Greek islands as part of the territory of Greece, are entitled to the portion of the continental shelf which appertains to them according to the applicable principles and rules of international law;

(ii) what is the course of the boundary (or boundaries) between the portions of the continental shelf appertaining to Greece and Turkey in the Aegean Sea in accordance with the principles and rules of international law which the Court shall determine to be applicable to the delimitation of the continental shelf in the aforesaid areas of the Aegean Sea;

(iii) that Greece is entitled to exercise over its continental shelf sovereign and exclusive rights for the purpose of researching and exploring it and exploiting its natural resources;

(iv) that Turkey is not entitled to undertake any activities on the Greek continental shelf, whether by exploration, exploitation, research or othenwise, without the consent of Greece;

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(v) that the activities of Turkey as described in the application constitute infringements of the sovereign and exclusive rights of Greece to explore and exploit its continental shelf or to authorize scientific research respecting the continental shelf;

(vi) that Turkey shall not continue any further activities as described above within the areas of the continental shelf which the Court shall adjudge appertain to Greece.”

TURKEY DID NOT PARTICIPATE. No pleadings were filed by the Government of Turkey, and it was not represented at the oral proceedings; no formal submissions were therefore made by that Government.

BACKGROUNDER. TURKISH ACTS IN THE AEGEAN SEA WHICH GREECE PROTESTED. Towards the end of 1973 the Turkish Government granted licences to carry out exploration for petroleum in submarine areas of the Aegean Sea, including areas, which encroached upon the continental shelf which, according to the Greek Government, appertains to certain Greek islands. By a Note Verbale of 7 February 1974, the Greek Government, basing itself on international law as codified by Articles 1 (b) and 2 of the 1958 Geneva Convention on the Continental Shelf, questioned the validity of the licenses granted by Turkey, reserved its sovereign rights over the continental shelf adjacent to the coasts of the said islands, and contended that the continental shelf required to be delimited between the two States on a basis of equidistance by means of a median line. The Turkish Government replied, by a Note Verbale of 27 February 1974, that “the Greek Islands situated very close to the Turkish Coast do not possess a continental shelf of their own”, and disputed the applicability of the principle of equidistance; while reserving its rights, it stated that it considered it appropriate to seek by means of agreement a solution in conformity with the rules of international law. In its reply of 24 May 1974, the Greek Government indicated that it was not opposed to a delimitation based on the provisions of present day positive international law, “as codified by the 1958 Geneva Convention on the Continental Shelf”; the Turkish Government in its turn, on 5 June 1974, stated that it was the duty of the two Governments to use every endeavor to bring about agreed solutions of the various problems arising by reason of the fact that they were neighbors in the Aegean Sea; it expressed readiness to enter into negotiations for the delimitation of the continental shelf between the two countries.

On 29 May 1974 the Turkish vessel Candarli began a program of exploration in waters which were wholly or partly superjacent to the continental shelf in the Aegean Sea which, according to the Greek Government, appertains to Greece. The Greek Government, in a Note of 14 June 1974, observed that this exploration was a breach of Greece’s exclusive sovereign rights and lodged a vigorous protest. The Turkish Government, in its reply of 4 July 1974, refused to accept the Greek protest. Another protest in respect of further licenses for exploration was made by Greece on 22 August 1974; Turkey refused to accept it on 16 September 1974, and repeated the suggestion of negotiations.

MEETINGS BETWEEN GREECE & TURKEY. This led to both states deciding to bring the dispute as to the applicable law as well as over the substance of the matter to the ICJ. The two states subsequently met to finalize the special agreement they would make to bring the issue to the ICJ. But in such meetings, Turkey was firm in its stand that it would not be in the interest of the two countries to submit the dispute to the Court without first attempting meaningful negotiations. But Greece on the other hand

wanted to bring the issue first to the ICJ. In a Note of 18 November 1975 the Turkish Government invited the Greek Government to conduct meaningful negotiations for an agreed equitable settlement, as well as for considering joint submission of unresolved but well defined legal issues, if necessary, to the Court. The Greek government replied and expressed the view that since negotiation was in any case necessary in order to proceed with the drafting of the special agreement, it was understood that if in the course of that negotiation proposals were made for the elimination of points of disagreement concerning delimitation, those proposals would be given appropriate consideration. In accordance with the views expressed in the above communications, meetings of experts took place in Berne from in 1976, but no agreement was reached.

THE LAST STRAW FOR GREECE. On 13 July 1976 a Turkish Government press release was issued concerning researches that would be undertaken by a Turkish seismic research vessel in the Turkish territorial sea and the high seas, and in a statement on Turkish radio the Turkish Foreign Minister indicated that these researches would be carried out in the areas of the Aegean claimed by Turkey, and could extend to all areas of the Aegean outside the territorial waters of Greece. When the vessel pursued its researches into areas where, in the view of the Greek Government, the continental shelf appertains to Greece, that Government made a diplomatic protest to the Turkish Government in a Note Verbale and Greece referred the matter simultaneously to the International Court of Justice and to the Security Council.

SECURITY COUNCIL RESOLUTION. On 25 August 1976 the Security Council adopted resolution 395 which called on the two Governments “to resume direct negotiations over their differences” and appealed to them “to do everything within their power to ensure that this results in mutually acceptable solutions.”

While the present case was pending before the Court, Greece and Turkey resumed their negotiations, in accordance with the Security Council resolution. The Turkish Government feels though that the Court ought not to proceed with the case while the parties continue to negotiate and that the existence of active negotiations in progress constitutes an impediment to the Court’s exercise of jurisdiction in the present case. The Court is unable to share this view. Negotiation and judicial settlement are enumerated together in Article 33 of the Charter of the United Nations as means for the peaceful settlement of disputes.

NEGOTIATIONS NOT INCONSISTENT WITH ICJ PROCEEDINGS. The jurisprudence of the Court provides various examples of cases in which negotiations and recourse to judicial settlement have been pursued paripassu (side by side). The above-mentioned observations of the Turkish Government might also be interpreted as making the point that there is no dispute between the parties while negotiations continue, so that the Court could not for that reason be seised of jurisdiction in the case. As the Court recognized in its Order, the existence of a dispute can hardly be open to doubt in the present case. Counsel for Greece correctly stated that there is in fact a double dispute between the parties: “There is a dispute about what the continental shelf boundaries in the Aegean Sea should be, and there is a dispute as to the method whereby this first dispute should be settled-whether by negotiation alone or by subrnission to a tribunal competent to exercise jurisdiction in the matter, either following upon negotiations or even in the absence of them.”

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THERE IS A LEGAL DISPUTE. Again, in the Turkish Ambassador’s letter of 1978, the further argument is advanced that the dispute between Greece and Turkey is “of a highly political nature”. But a dispute involving two States in respect of the delimitation of their continental shelf can hardly fail to have some political element and the present dispute is clearly one in which “the parties are in conflict as to their respective rights”. Greece has asked the Court to pronounce on its submissions “in accordance with the principles and rules of international law”. Turkey, for its part, has invoked legal grounds in reply to the Greek claim, such as the existence of “special circumstances”. It is clear from the submissions in the Greek Application and Memorial, as well as in the observations in the various Turkish diplomatic communications to Greece, that Greece and Turkey are in conflict as to the delimitation of the spatial extent of their sovereign rights over the continental shelf in the Aegean Sea. Thus there are certain sovereign rights being claimed by both Greece and Turkey, one against the other and it is manifest that legal rights lie at the root of the dispute that divides the two States. The Court therefore finds that a legal dispute exists between Greece and Turkey in respect of the continental shelf in the Aegean Sea.

SO DOES THE ICJ HAVE JURISDICTION?

CLAIMED BASIS FOR ICJ’s JURISDICTION. The first basis of jurisdiction is formulated in paragraph 32 (1) of the Application as follows: “Article 17 of the General Act for the Pacific Settlement of Inter-national Disputes, 1928, read together with Articles 36 (1) and 37 of the Statute of the Court. Respectively on 14 September 1931 and 26 June 1934, Greece and Turkey acceded to this instrument, which is still in force for both of them. The texts of these accessions were accompanied by declarations which are irrelevant to the present case.”

Article 17 of the General Act of 1928 forms part of Chapter II of the Act, entitled “Judicial Settlement”, and reads as follows: “All disputes with regard to which the parties are in conflict as to their respective rights shall, subject to any reservations which may be made under Article 39, be submitted for decision to the Permanent Court of International Justice, unless the parties agree, in the manner hereinafter provided, to have resort to an arbitral tribunal. It is understood that the disputes referred to above include in particular those mentioned in Article 36 of the Statute of the Permanent Court of International Justice.”

The Article thus provides, under certain conditions, for the reference to the former Permanent Court of International Justice of disputes with regard to which the parties are in conflict as to their respective rights. Article 37 of the Statute of this Court, however, States that: “Whenever a treaty or convention in force provides for reference of a matter to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.”

Clearly, Article 17 of the General Act of 1928, here invoked by Greece, contains a jurisdictional clause which does provide for reference to the Permanent Court of certain specified matters, namely, “all disputes with regard to which the parties are in conflict as to their respective rights”. It follows that, if the 1928 Act is considered to be a convention in force between Greece and Turkey and applicable to the “matter” which is the subject of the present dispute, the Act, read in combination with Article 37, and Article 36, paragraph 1, of the Statute, may suffice to establish the Court’s jurisdiction in the present case.

The General Act came into force in accordance with its terms on 1929, and Greece became a party to the Act by depositing an instrument of accession on 1931, subject to certain reservations. Turkey likewise became a party to the Act by depositing an instrument of accession on 1934 which, also, was subject to certain reservations. In consequence, the General Act undoubtedly became a convention in force as between Greece and Turkey on the ninetieth day following the deposit of Turkey’s instrument of accession, in accordance with Article 44, paragraph 2, of the Act; nor is there any record of either Greece or Turkey having notified the Secretary-General, in conformity with Article 45, paragraph 3, of its denunciation of the Act. The Greek Government maintains that, in these circumstances, the General Act must be presumed to be still in force as between Greece and Turkey, in virtue of paragraph 2 of Article 45, under which the Act is expressed to remain in force for “successive periods of five years in the case of Contracting Parties which do not denounce it at least six months before the expiration of the current period”. It further maintains that neither the reservations in Greece’s own instrument of accession nor those in the Turkish instrument have any relevance to the present dispute, and that Article 17 of the General Act accordingly constitutes a valid basis for the exercise of the Court’s jurisdiction in the present case under Article 36, paragraph 1, of the Statute.

TURKEY’S CONTENTIONS: GEN. ACT NO LONGER IN FORCE AND NOT APPLICABLE. The Turkish Government, on the other hand, in the observations which it transmitted to the Court with its letter to the Registrar of 1976, contested the Greek Government’s right to invoke Article 17 of the General Act in the present case on both counts. It there took the position that the General Act is no longer in force and that, whether or not the General Act is in force, it is inapplicable as between Greece and Turkey. In this connection, the Turkish Government has emphasized “that at no time during the exchanges of documents and discussions concerning the continental shelf areas of the Aegean Sea has any Greek representative made any mention of the General Act of 1928”.

UN GA’S STUDY OF THE GENERAL ACT. In 1948, the GA of the UN undertook a study of the text of the General Act with a view to restoring its full efficacy, since this had been impaired in some respects as a result of the dissolution of the League of Nations and the disappearance of its organs. The GA adopted resolution 268A-III, by which it instructed the Secretary-General to prepare the text of a “Revised General Act for the Pacific Settlement of International Disputes” incorporating the amendments which it had adopted, and to hold it open to accession by States. Explaining the reasons for this instruction, it stated that the amendments are of a nature to restore to the General Act its original efficacy; these amendments will only apply as between States having acceded to the General Act as thus amended and, as a consequence, will not affect the rights of such States, parties to the Act as established on 26 September 1928, as should claim to invoke it in so far as it might still be operative.”

BOTH GREECE & TURKEY ARE IN THE LIST OF THOSE WHO ACCEDED. The Secretariat, in a memorandum of 4 May 1948, had provided a list of the States which up to 31 July 1946 had acceded to the 1928 Act and that list included both Greece and Turkey.

IN THE FIRST PLACE, IS THE GENERAL ACT RELEVANT IN CONFERRING THE ICJ WITH JURISDICTION IN THIS PARTICULAR DISPUTE?

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RESERVATION B. The Turkish Government unequivocally took the position that, whether or not the General Act is assumed to be still in force, it is subject to a clause, i.e., reservation (b), which would exclude the Court’s competence with respect to the present dispute. The Turkish Government there declared that in conformity with Article 39, paragraph 3, of the Act, “Turkey opposes reservation (b) to the Greek Application”. In its further letter to the Registrar of 24 April 1978 the Turkish Government informed the Court that it maintained its view that the Court has no jurisdiction to entertain the Greek Application for the reasons which it had explained in its earlier letter of 25 August 1976. The Court is thus confronted with a situation in which, even if the General Act is to be considered a convention in force, its whole relevance as a potential source of the Court’s jurisdiction in a matter concerning a coastal State’s sovereign rights over the continental shelf is contested by the Turkish Government. Clearly, if the Turkish Government’s view of the effect of reservation (b) on the applicability of the Act as between Greece and Turkey with respect to the subject-matter of the present dispute is found by the Court to be justified, a finding on the question whether the Act is or is not a convention in force today ceases to be essential for the Court’s decision regarding its jurisdiction to entertain the present Application.

GREECE: RESERVATION B SHOULD NOT BE TAKEN INTO ACCOUNT. The Greek Govemment has advanced the contention that reservation (b) should, in any event, be left out of consideration altogether by the Court because the question of its effect on the application of the General Act with respect to the present dispute was not raised by Turkey as a preliminary objection. In its view, since Turkey has not filed a preliminary objection, it cannot be regarded as having “enforced” the reservation in conformity with of the General Act. The Greek Government recognizes that “the Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law” and also that in previous cases where the respondent has not appeared, the Court has taken into account all the elements before it, including those supplied by extra-procedural communications from the respondent, for the purpose of satisfying itself as to whether its jurisdiction was established. It further recognizes that, even when the respondent has not informed the Court of its attitude, the Court has motu proprio enquired into the possible objections to its jurisdiction in the case. It maintains, however, that in previous cases the Court has never gone further than to take account of “objection,, “legal arguments” or “contentions” advanced by the respondent or conceived of by the Court. It then asks whether, in a case like the present, the Court can go so far as to substitute itself for the absent govemment by enforcing motu proprio in place of that government the reservation of the Applicant, thus assimilating the extra-procedural expression of a desire to take advantage of the reservation to the procedural expression of a decision to enforce it.

COURT NOT CONVINCED BY GREECE’S CONTENTIONS. TURKEY ENFORCED THE RESERVATION THROUGH A LETTER. The procedural objection advanced by Greece to reservation (b)’s being taken into consideration does not appear to the Court to be convincing. According to the information before the Court, no mention was made of the General Act during the negotiations, so that the first mention of the Act by Greece in the present dispute was in its Application, with which it also filed a request for interim measures of protection. It was only then that the Turkish Government had occasion to consider its position regarding the application of the General Act to the present dispute. On 18 August 1976, the Greek and Turkish Governments were informed that public hearings would open to afford the parties the opportunity of presenting their observations on the Greek request for the indication of provisional

measures. The Registrar, at the direction of the Court, informed the Turkish Ambassador to the Netherlands that his Government had the right to address to the Court in writing any observations that it might have on the Greek request. It was in these circumstances that, by its letter the Turkish Government transmitted to the Court the document entitled “Observations of the Government of Turkey on the request by the Government of Greece for provisional measures of protection dated The Hague, 10 August 1976”. In those observations the Turkish Government specifically referred to the right conferred upon it by Article 39, paragraph 3, of the General Act to invoke Greece’s reservation (b) on the basis of reciprocity, and then stated: “In conformity with this provision, Turkey opposes reservation (b).” In the view of the Court, that formal statement, made in response to a communication from the Court, must be considered as constituting an “enforcement” of the reservation within the meaning of, and in conformity with, Article 39, paragraph 3, of the Act.

The Turkish Government, it is true, was not represented at the public hearings on Greece’s request for the indication of provisional measures, and did not afterwards file a preliminary objection or take any steps in the proceedings. But there is no provision in the Rules of Court which excludes the submission of written observations on a request for provisional measures; nor is there any provision which excludes the raising of questions of jurisdiction in written observations submitted in proceedings on the indication of provisional measures. On the contrary, in view of the urgency of a request for provisional measures, written communications not submitted through an agent but either directly or through the Ambassador in The Hague have invariably been admitted by the Court; while one of the very purposes of such communications has commonly been to raise questions as to the competence of the Court with respect to the particular case.In the present case, the Turkish Government’s observations were immediately communicated to the Greek Agent, and they were referred to by counsel for Greece during the hearings concerning the request for interim measures. Indeed, counsel for Greece then expressly recognized that by reason of the title given to the document the Turkish Government had placed itself “within the context of Article 66, paragraph 8, of the Rules of Court”, adding: “Thus, not only has an opportunity of presenting observations been given to Turkey, but Turkey has in fact, in the letter which it has sent to the Court and in the document, availed itself of that opportunity of presenting observations.”

The Court itself, in its Order of 11 September 1976 took due notice of the Turkish Government’s observations. It also called attention to the invocation by Turkey of reservation (b) in Greece’s instrument of accession, and set out the text of the reservation. In that Order, moreover, the Court expressly stated that, “having regard to the position taken by the Turkish Government in its observations communicated to the Court on 26 August 1976, that the Court has no jurisdiction to entertain the Greek Application”, it was “necessary to resolve first of all the question of the Court’s jurisdiction with respect to the case.” Accordingly, after giving its finding on the request for interim measures, the Court went on to decide that the present proceedings should be addressed to “the question of the Court’s jurisdiction to entertain the dispute”.

TEXT OF THE RESERVATION IN GREECE’S INSTRUMENT OF ACCESSION (ORIG. TEXT IN FRENCH, ENG. TRANSLATION). “The following disputes are excluded from the procedures described in the General Act, including the procedure of conciliation referred to in Chapter 1:

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(a) disputes resulting from facts prior either to the accession of Greece or to the accession of another Party with whom Greece might have a dispute;

(b) disputes concerning questions which by international law are solely within the domestic jurisdiction of States, and in particular disputes relating to the territorial status of Greece, including disputes relating to its rights of sovereignty over its ports and lines of communication.”

GREECE: THE ISSUE OF CONTINENTAL SHELF DELIMITATION IS NOT COVERED BY RESERVATION (B) SINCE IT IS NOT A QUESTION COVERED BY THE DOMESTIC JURISDICTION OF STATES. The Greek Government maintains on various grounds that reservation (b) cannot be considered as covering the present dispute regarding the continental shelf of the Aegean Sea. One of those grounds consists of a contention that, when read correctly according to its terms, reservation (b) does not cover all disputes relating to the territorial status of Greece but only such as both relate to its territorial status and at the same time concern “questions which by international law are solely within the domestic jurisdiction of States”. On this basis, it argues that, as the delimitation of the continental shelf cannot be considered a question “solely within the domestic jurisdiction of States”, the subject-matter of the present dispute is not covered by reservation (b). This ground is based on an essentially grammatical interpretation of the reservation.

GREECE’S “GRAMMATICAL” INTERPRETATION. The grammatical argument hinges upon the interpretation of the words “and in particular” ("et, notamment") which precede the reference to “disputes relating to the territorial status of Greece” ("les différends ayant trait au statut territorial de la Grèce) . Those words are said by the Greek Government to make it plain that the reference to “disputes relating to the territorial status of Greece” was not intended to designate an autonomous category of disputes additional to the category of disputes concerning matters solely within domestic jurisdiction. The effect of those words, according to the Greek Government, is to show that in reservation (b) “disputes relating to the territorial status of Greece” are included within the description of disputes concerning matters solely within domestic jurisdiction, and are there mentioned merely as a particular example of such disputes which it was desired to emphasize.

In support of this interpretation of the words “et, notamment,” the Greek Government invokes the authority of Robert’s Dictionnaire alpha-bétique et analogique de la langue française (Vol. IV) which explains“notamment” as meaning “d’une manière qui mérite d’être notée” (in a waywhich deserves to be noted), and adds in brackets: “sert leplus souventà attirer I’attention sur un ou plusieurs objets particuliers faisant partie d’un ensemble précédemment désigné ou sous-entendu” (most often used to draw attention to one or more particular objects forming part of a previously designated or understood whole). Particular stress is then laid by the Greek Government on the phrases given by Robert to illustrate the use of the word notamment, in the majority of which the word is preceded by the word et, but still denotes merely a particular instance of a wider genus or category. The Greek Government also cites sirnilar exarnples of this use of “et notamment” given in the Dictionnaire de IAcadémie française and in Littré, Dictionnaire de. la langue française. On the basis of this linguistic evidence, it maintains that the natural, ordinary and current meaning of this expression absolutely precludes the Greek reservation from being read as covering disputes regarding

territorial status in addition to, and quite separately from, disputes regarding matters of domestic jurisdiction.

MATTERS OF DOMESTIC JURISDICTION DISTINCT & SEPARATE FROM TERRITORIAL STATUS. Disputes concerning matters of “domestic jurisdiction” and disputes relating to “territorial status” are different concepts which, in treaty provisions, including Article 39, paragraph 2, of the General Act, and in reservations to treaties or to acceptances of jurisdiction under Article 36, paragraph 2, of the Statute, have been kept quite separate and distinct. Furthermore, the integration of “disputes relating to territorial status” within the category of disputes concerning matters of “domestic jurisdiction”, largely deprives the former of any significance. Consequently, only if the grammatical arguments were compelling and decisive would the Court be convinced that such is the effect which ought to be given to the words “et, notamment,” in reservation (b). But those arguments do not appear to the Court to be so compelling as has been suggested.

GRAMMATICAL ARGUMENT NOT SUFFICIENT. In the first place, the grammatical argument overlooks the commas placed both before and after “notamment”. To put the matter at its lowest, one possible purpose of these commas might have been to make it clear that in the phrase “et, notamment, les différend” etc., the word “et” is intended to be a true conjunctive introducing a category of “différends” additional to those already specified.

Another point overlooked by the argument is that the meaning attributed to “et, notamment,” by Greece is grammatically not the only, although it may be the most frequent, use of that expression. Robert’s Dictionnaire itself goes no further than to Say of the word notamment that it is “most often” used to draw attention to one of several particular objects forming part of a collectivity previously indicated or implied. The question whether in the present instance the expression ‘et, notamment,” has the meaning attributed to it by Greece thus depends on the context in which those words were used in Greece’s instrument of accession and is not a matter simply of their preponderant linguistic usage. Even a purely gram-matical interpretation of reservation (b), therefore, leaves open the possibility that the words “et, notamment, les différends ayant trait au statut territorial de la Grèce” were intended to specify an autonomous category of disputes additional to those concerning matters of domestic jurisdiction, which were also specifically “excluded from the procedures described in the General Act”. In any event, “the Court cannot base itself on a purely grammatical interpretation of the text.

RESERVATION B CONTAINS 2 SEPARATE RESERVATIONS. A number of considerations of a substantive character point decisively to the conclusion that reservation (b) in fact contained two separate and autonomous reservations.

ART. 39 OF THE GENERAL ACT. One is that the making of reservations to the General Act was expressly authorized and regulated by Article 39, which allowed only the reservations “exhaustively enumerated” in paragraph 2 of the Article, namely: (a) Disputes arising out of facts prior to the accession either of the Party making the reservation or of any other Party with whom the said Party may have a dispute;(b) Disputes concerning questions which by international law are solely within the domestic jurisdiction of States;(c) Disputes concerning particular cases or clearly specified subject-matters, such as territorial status, or disputes falling within clearly defined categories.”

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When a multilateral treaty thus provides in advance for the making only of particular, designated categories of reservations, there is clearly a high probability, if not an actual presumption, that reservations made in terms used in the treaty are intended to relate to the corresponding categories in the treaty. Nor does the fact that the instrument of accession includes in a single paragraph two categories of disputes which are listed in the treaty as separate categories, by itself, in any way diminish that probability. When making reservations under the General Act, States have not, as a rule, meticulously followed the pattern of reservations set out in Article 39, paragraph 2; and they have not infrequently grouped together in one paragraph two or more reservations listed separately in the Act.

In the present instance, the very structure of reservation (b) hardly seems consistent with an intention to make “disputes relating to the territorial status of Greece”, which are placed by the General Act in one category, merely an example of disputes concerning questions of domestic jurisdiction, which are placed by the Act in a quite different category. If that had been the intention at the time, it would have been natural for those who drafted Greece’s instrument of accession to put the words y compris (including) where the words et, notamment, (and in particular) in fact appear in reservation (b) and the words et, notamment, where the words y compris are now found. But that is not how reservation (b) was drafted.

GREECE’S EARLIER DECLARATION. A further consideration is that Greece’s declaration accepting compulsory jurisdiction under the optional clause of the Statute of the Permanent Court contained a provision which, indisputably, was an autonomous reservation of “disputes relating to the territorial status of Greece”. That declaration, made on 12 September 1929, only two years before Greece’s accession to the General Act, was stated to be subject to two reservations:

“(a) disputes relating to the territorial status of Greece, including disputes relating to its rights of sovereignty over its ports and lines of communication;

(b) disputes relating directly or indirectly to the application of treaties or conventions accepted by Greece and providing for another procedure”.

It can hardly be supposed that Greece should at the same time have intended to give a scope to its reservation of “disputes relating to the territorial status of Greece” which differed fundamentally from that given to it both in the General Act and in its declaration under the optional clause. That Greece should have had such an intention seems all the more improbable in that in 1934 and again in 1939 it renewed its declaration under the optional clause without modifying in any way the form of its reservation of “disputes relating to the territorial status of Greece”.

GREECE’s EXCUSE. The Greek Government has suggested that an improvement in the political climate of the time enabled Greece to dispense with an autonomous reservation of disputes relating to its territorial status, and to content itself with the integration of those disputes into its domestic jurisdiction reservation. But this would not explain why Greece should then have maintained an autonomous reservation of disputes relating to territorial status in its acceptance of the optional clause. Another difficulty is that accession to the General Act involved an even wider risk of claims than acceptance of the optional clause; for the pacific settlement procedures of the General Act are not limited to the judicial settlement of legal disputes. They also provide for conciliation with respect to disputes “of every kind”, and even for the possibility, under

certain conditions, of arbitration of political disputes on the basis that the arbitrators may decide ex aequo et bono. It hardly seems likely, therefore, that Greece should have intended to have curtailed the protection given by its reservation of disputes relating to territorial status, when subjecting itself to the wider range of procedures contained in the Act.

Equally unconvincing is a suggestion that, although the scope of the “territorial status” reservation was reduced by its incorporation in the reservation of questions of domestic jurisdiction, Greece thereby obtained a “reinforced barrage”, a “qualitatively enhanced protection” and a “doubly-bolted” door against the claims which it was particularly concerned to guard against. This suggestion takes no account of the legal implications of incorporating “disputes relating to territorial status” into a reservation of questions of “domestic jurisdiction”. The Permanent Court there observed that the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question and depends upon “the development of international relations”. It pointed out that a matter which is not, in principle, regulated by international law and is thus a matter within the State’s domestic jurisdiction, will cease to be such if the State has undertaken obligations towards other States with respect to that matter. Consequently, and in the light of historical circumstances now to be described, it is hardly conceivable that Greece intended to reduce the scope of its “territorial status” reservation by integrating it into its “domestic jurisdiction” reservation.THE REASON WHY GREECE WOULD SEEM TO INTEND A SEPARATE TERRITORIAL STATUS RESERVATION. Greece’s main preoccupation in the years following the First World War, so the Court was informed, was to guard against the revival of Bulgarian aspirations to recover direct access to the Aegean Sea which it had lost as a result of the territorial changes effected by the peace treaties. By the Treaty of Neuilly of 1919, Bulgaria had renounced all its rights and titles over areas of Thrace, but the Principal Allied and Associated Powers at the same time “undertook to ensure the economic outlets of Bulgaria to the Aegean Sea” (Art. 48). Article 4 of the Treaty of Sèvres of 1920 relating to Thrace, put into force by Protocol XVI of the Lausanne Conference, provided that Greece “in order to ensure to Bulgaria free access to the Aegean Sea” recognized her freedom of transit “over the territories and in the ports assigned to Greece under the present Treaty”. The expectation that Bulgaria might seek to secure a revision of this territorial settlement was the source of Greece’s preoccupation and, also, as will be shown shortly, its motive for inserting in its declaration under the optional clause a reservation of disputes relating to its territorial status. In the present connection, however, what needs to be emphasized is that the territorial settlement, against the revision of which Greece’s “territorial status” reservation was designed to provide a safeguard, consisted essentially of a complex of rights and obligations established by treaties. Consequently, having regard to the implications of the Nationality Decrees Opinion, that territorial settlement was by its very nature one which could not legally be considered as capable of falling within the concept of questions of domestic jurisdiction. It follows that, by integrating its territorial status reservation into its reservation of questions of domestic jurisdiction, Greece would automatically have deprived itself of the protection which the former reservation would otherwise have given it against attempts to use the General Act as a means of effecting a revision of the territorial settlement established by the peace treaties.

This basic objection to the Greek Government’s way of interpreting reservation (b) is not removed by another suggestion made in the public hearings. This was that the series of treaties connected with the territorial arrangements and the treatment of minorities provided their own special procedures for the settlement of disputes, which had priority over those of the General Act under Article 29, so that an autonomous

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reservation of disputes relating to territorial status was not really indispensable to Greece. The difficulty with this suggestion, however, is that these procedures by no means covered all possible claims relating to territorial status and to rights of sovereignty over ports and lines of communication. It is true that the Treaty of Neuilly provided for recourse to the Permanent Court or to other methods of pacific settlement on questions relating to minorities and certain other matters, but special procedures were never established for the settlement of disputes concerning the parts of the Treaty dealing with Bulgaria’s economic outlet to the Aegean Sea.

THE COURT IS NOT CONVINCED BY THE SEVERAL EXPLANATIONS WHICH HAVE BEEN PUT FORWARD TO ACCOUNT FOR THE DIFFERENCE BETWEEN GREECE’S TERRITORIAL STATUS RESERVATION IN ITS DECLARATION UNDER THE OPTIONAL CLAUSE AND THAT IN ITS INSTRUMENT OF ACCESSION TO THE GENERAL ACT, IF THE LATTER INSTRUMENT IS GIVEN THE MEANING CONTENDED FOR BY GREECE. IT ALSO APPEARS SIGNIFICANT THAT NO SUPPORT FOR ANY OF THESE EXPLANATIONS CAN BE FOUND IN THE CONTEMPORARY EVIDENCE PLACED BEFORE THE COURT RELATING TO THE MAKING OF GREECE’S DECLARATION UNDER THE OPTIONAL CLAUSE IN 1929 AND TO THE DEPOSIT OF ITS INSTRUMENT OF ACCESSION IN 1931.

THE OTHER EVIDENCE OF GREECE:(1) THE LETTER OF M. POLITIS TO THE GREEK FOREIGN MINISTER. In a document referred as “the travauxpréparatoires of the reservation” containing a letter addressed by M. Politis to the Greek Foreign Minister on 1928, setting out the reservations which he recommended that Greece should make to its acceptance of the Permanent Court’s jurisdiction under the optional clause. M. Politis was at that time the Rapporteur for the drafting of the General Act which was then nearing completion, and in that letter he said:

“I think that it would be wise to safeguard ourselves against an eventual application of Bulgaria on matters related to Our territorial status, to the access (of Bulgaria) to the Aegean and to the protection of Bulgarian-speaking minorities in Greece.”

He went on to suggest a possible text of a declaration to give effect to his recommendation whch contained the following three reservations:

(a) disputes relating to the territorial status of Greece;

(b) disputes relating to its rights of sovereignty over its ports and lines of communication;

(c) disputes for the settlement of which the treaties signed by it provide another procedure.

CONCEIVED AS A SPECIFIC & AUTONOMOUS RESERVATION. That letter confirms in the clearest manner the Greek Government’s explanation of its motive in introducing a “territorial status” reservation into its declaration under the optional clause. But it also shows that this reservation was originally conceived of and formulated as a specific and autonomous reservation. In the actual declaration the second reservation, “disputes relating to its rights of sovereignty over its ports and lines of communication”, was tacked on to, and specifically “included” in, the first reservation of “disputes relating to territorial status”. The reason, no doubt, was that the disputes covered by the second reservation were realized to because of “disputes relating to the territorial status of Greece”. At any rate, this change in the presentation of the first and

second reservations only served to emphasize both the generic and the autonomous character of Greece’s reservation of disputes relating to its “territorial status”. Another point which may be deduced from M. Politis’s letter is that he clearly did not think a reservation of disputes for the settlement of which treaties provided another procedure would necessarily cover all disputes relating to Greece’s “territorial status”; otherwise, he would not have recommended the inclusion of two separate, autonomous reservations to cover specifically each of these two categories of disputes.

(2) GREECE’S INTERNAL DOCUMENTS RELATING TO THE PREPARATION OF GREECE’S INSTRUMENT OF ACCESSION TO THE GENERAL ACT. These documents included a first draft of the projet de loi to be presented to the Greek Chambre des députés for ratification of the instrument of accession, the text of the projet de loi as finally presented, and the exposé des motifs explaining the projet de loi to the Chambre des députés; alll of the documents being accompanied by certified translations into the French language.

The Court considers that the intention to make an autonomous reservation as to matters relating to territorial status is put beyond doubt by the explanation of the reservation which was given by the Government to the Chambre des députés in the exposé des motifs accompanying the projet de loi. The final paragraph of this document stated:“We have judged it necessary to proceed to that accession subject to certain reservations. The latter are those enumerated in Article 2 of the projet de loi submitted, and consist, on the one hand, of the repetition of one of the two reservations we formulated when we accepted the compulsory jurisdiction of the Permanent Court reservation (b) - the other being established in Article 29 of the Act; and, on the other hand, of the reservations enumerated in Article 39 of the Act.”

As the Greek Agent confirmed in reply to a question put by the Court, the words “the repetition of one of the two reservations which we formulated when we accepted the compulsory jurisdiction of the Permanent Court” refer unequivocally to the reservation of “territorial status” already used in Greece’s declaration under the optional clause and thus already known to the Chambre des députés. The projet de loi was approved without discussion and without change, so that reservation (b) must be presumed to have been included in Greece’s instrument of accession on the basis of the explanations given in the exposé des motifs.

Accordingly, when the Chambre des députés authorized the deposit of Greece’s instrument of accession to the General Act, it could only have believed that Greece was making its accession subject to precisely the same reservation of disputes relating to its territorial status as the Chambre had previously authorized for its declaration under the optional clause. It seems reasonable to assume that, if any change had been intended in the scope of the “territorial status” reservation, to which particular importance was attached by Greece, some indication and explanation of that change would have been included in the exposé des motifs. But there is no evidence of such a change of intention either in the exposé des motifs or in any other contemporary document before the Court.RESERVATION B COMPRISES 2 RESERVATIONS. Having regard to the several considerations which have been mentioned by the Court, as well as to the explanation of reservation (b) given in the exposé des motifs, the Court feels bound to conclude that the wording of reservation (b) did not have the effect of integrating the reservation of disputes relating to territorial status into the reservation of disputes concerning

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questions of domestic jurisdiction. On the contrary, the Court finds that reservation (b) comprises two reservations, one of disputes concerning questions of domestic jurisdiction and the other a distinct and autonomous reservation of “disputes relating to the territorial status of Greece, including disputes relating to its rights of sovereignty over its ports and lines of communication

APPLICATION OF RESERVATION B.

GREECE’S CONTENTIONS. The Greek Government maintains that a restrictive view has to be taken of the meaning of the expression “disputes relating to the territorial status of Greece” in reservation (b) by reason of the historical context in which that expression was incorporated into the reservation. In this connection, it invokes the jurisprudence of this Court and the Permanent Court concerning the interpretation of unilateral declarations of acceptance of the Court’s.

ATTENTION TO INTENTION OF GREECE. According to this jurisprudence it is indeed clear that in interpreting reservation (b) regard must be paid to the intention of the Greek Government at the time when it deposited its instrument of accession to the General Act; and it was with that jurisprudence in Mind that the Court asked the Greek Government to furnish it with any available evidence of explanations of the instrument of accession given at that time. The Court has already referred to M. Politis’s letter to the Greek Foreign Minister setting out the reservations which he recommended Greece should make to its declaration under the optional clause of Article 36 of the Statute. One of his recommendations concerned “disputes relating to the territorial status of Greece” and another “disputes relating to its rights of sovereignty over its ports and lines of communication”. The Greek Government is therefore justified in asking the Court to conclude that it was the same motive which inspired their inclusion also in reservation (b) of Greece’s accession to the General Act. It goes further, however, and asks the Court to interpret reservation (b) in the light of that motive, so as to restrict its scope to matters of territorial status connected with attempts to revise the territorial arrangements established by the peace treaties of the First World War. Moreover, in support of this interpretation of reservation (b), the Greek Government has also laid stress on the general historical context in which reservations of questions relating to territorial status had come into use in the League of Nations period.

Disputes concerning territorial status were expressly mentioned in Article 39, paragraph 2, of the General Act as an example of the “clearly specified subject-matters” in regard to which reservations to the Act were to be permitted. Consequently, it is reasonable to presume that there is a close link between the concepts of territorial status in the General Act and in Greece’s instrument of accession to it; and that presumption is all the stronger when it is recalled that M. Politis was the Rapporteur for the drafting of the General Act as well as the author of the letter of 9 September 1928 which prompted Greece’s recourse to a reservation under the optional clause relating to territorial status. Thus, the meaning with which the expression “territorial status” was used in Article 39 of the General Act may clearly have a bearing on its meaning in Greece’s instrument of accession.

HISTORICAL EVIDENCE. Counsel for Greece went into the historical evidence in detail more especially the use of the expression in the numerous bilateral treaties of pacific settlement of the inter-war period, and in the proceedings of the League of Nations connected with the drafting of the Locamo Protocol. The propositions which

they advanced on the basis of that evidence were, briefly, as follows. First, the reason for the appearance of expressions such as “territorial status”, “territorial integrity”, “territorial situation”, “maintenance of frontiers” in treaties of the period, whether in the context of reservations to pacific settlement provisions, or of territorial guarantees, was a prevailing apprehension of attempts to modify the post-war settlements. Secondly, although the actual expressions used might vary, their meaning was essentially the same, namely territorial situations or régimes established by treaties. Thirdly, when the expression “territorial status” occurred in reservations to treaties of pacific settlement, what the States had in mind was “disputes which were likely to arise out of territorial claims by neighbours dissatisfied with existing solutions”. Indeed, itWas said that the term “territorial status” in those reservations was simply “a ‘code-word’ for intangibility of the frontiers and territorial statuses established by the international instruments in force”. The general conclusion which the Greek Government then asked the Court to draw from that evidence was that:

“Everything that is known of the contemporary understanding of such terms as ‘territorial status’, ‘territorial situation’ and ‘territorial integrity’ in the 1920s indicates that these expressions are to be given a restrictive interpretation limited to the maintenance of the status quo established by treaties, normally as the result of post-war settlement.”

COURT THINKS THAT “TERRITORIAL STATUS” USED IN ITS ORDINARY & GENERIC SENSE. In the view of the Court, the historical evidence may justifiably be said to show that in the period in question the motive which led States to include in treaties provisions regarding “territorial status” was, in general, to protect themselves against possible attempts to modify territorial settlements established by the peace treaties. But it does not follow that they intended those provisions to be confined to questions connected with the revision of such settlements. Any modification of a territorial “status” or “situation” or “frontier” is unpalatable to a State; and the strong probability is that a State which had recourse to a reservation of disputes relating to territorial status, or the like, intended it to be quite general. Article 39 of the General Act, it is true, was designed to regulate the formulation of reservations and to exclude vague or subjective reservations. But in making express mention of disputes relating to territorial status as an example of disputes concerning a clearly specified subject-matter, Article 39 said nothing of this example being exclusively directed against attempts to revise the territorial settlements established by the peace treaties. The historical evidence adduced byGreece does not suffice to establish that the expression “territorial status” was used in the League of Nations period, and in particular in the General Act of 1928, in the special, restricted, sense contended for by Greece. The evidence seems rather to confirm that the expression “territorial status” was used in its ordinary, generic sense of any matters properly to be considered as relating to the integrity and legal régime of a State’s territory.

SYSTEMATIC SURVEY. It is significant in this regard that in the analysis of treaty provisions made in the Systematic Survey of Arbitral Conventions and Treaties of Mutual Security, published in 1927 by the Secretariat of the League of Nations(one of the documents used in connection with the drafting of the General Act), reservations of disputes relating to “territorial integrity”, “territorial status” and “frontiers” were examined together as having the same or a very similar meaning. The Systematic Survey of Treaties for the Pacific Settlement of International Disputes 1928-1948 prepared by the Secretaria of the United Nations and published in 1948,

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also groups together, under the title “Disputes relating to territorial status”, provisions concerning “territorial status”, “territorial questions”, “territorial integrity”, “present frontiers”. As to the legal writers of the League of Nations period, the Greek Government itself laid stress on the fact that they consistently linked together treaty provisions excepting questions relating to “territorial status”, “territorial integrity” and “existing frontiers”.

It follows that for the same reasons the Court is unable to accept the contention advanced in the Memorial that if the authors of the General Act, or of the arbitration treaties containing a territorial status reservation: “had contemplated excluding any disputes concerning the spatial delimitation of State jurisdictions, they would not have failed clearly to mention the familiar category of frontier disputes rather than resort to the term of territorial status which was a very specific one in the practice of the time”.

MEANING OF “TERRITORIAL STATUS”. In the view of the Court, the term “territorial status” in the treaty practice of the time did not have the very specific meaning attributed to it by the Greek Government. As the nature of the word “status” itself indicates, it was a generic term which in the practice of the time was understood as embracing the integrity and frontiers, as well as the legal régime, of the territory in question. This is implicit in the very wording of reservation (b) itself which treats disputes relating to Greece’s “rights of sovereignty over its ports and lines of communication” as included in its reservation of disputes relating to its “territorial status”. These disputes by their nature related to the interpretation and application of existing treaties rather than to their revision.

Accordingly, the expression “relating to the territorial status of Greece” in reservation (b) is to be understood as a generic term denoting any matters properly to be considered as comprised within the concept of territorial status under general international law, and therefore includes not only the particular legal régime but the territorial integrity and the boundaries of a State.

ISSUE: WON RESERVATION (B) DOES OR DOES NOT HAVE THE EFFECT OF EXCLUDING THE PRESENT DISPUTE FROM THE SCOPE OF GREECE’S ACCESSION TO THE GENERAL ACT OF 1928.

GREECE’S ADDITIONAL HISTORICAL ARGUMENTS: (1) The concept of continental shelf was wholly unknown in 1928 when the General Act was concluded, and in 1931 when Greece acceded to the Act. Once it is established that the expression “the territorial status of Greece” was used in Greece’s instrument of accession as a generic term denoting any matters comprised within the concept of territorial status under general international law, the presumption necessarily arises that its meaning was intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time. This presumption, in the view of the Court, is even more compelling when it is recalled that the 1928 Act was a convention for the pacific settlement of disputes designed to be of the most general kind and of continuing duration, for it hardly seems conceivable that in such a convention terms like “domestic jurisdiction” and “territorial status” were intended to have a fixed content regardless of the subsequent evolution of international law.

“TERRITORIAL STATUS” SHOULD LIKEWISE EVOLVE IN MEANING IN ACCORDANCE WITH “THE DEVELOPMENT OF INTERNATIONAL RELATIONS”.

The Greek Government invokes as a basis for the Court’s jurisdiction in the present case Article 17 of the General Act under which the parties agreed to submit to judicial settlement all disputes with regard to which they “are in conflict as to their respective rights”. Yet the rights that are the subject of the claims upon which Greece requests the Court in the Application to exercise its jurisdiction under Article 17 are the very rights over the continental shelf of which, as Greece insists, the authors of the General Act could have had no idea whatever in 1928. If the Greek Government is correct, as it undoubtedly is, in assuming that the meaning of the generic term “rights” in Article 17 follows the evolution of the law, so as to be capable of embracing rights over the continental shelf, it is not clear why the similar term “territorial status” should not likewise be liable to evolve in meaning in accordance with “the development of international relations” It may also be observed that the claims which are the subject-matter of the Application relate more particularly to continental shelf rights claimed to appertain to Greece in virtueof its sovereignty over certain islands in the Aegean Sea, including theislands of the “Dodecanese group”. But the Dodecanese group was not in Greece’s possession when it acceded to the General Act in 1931 for those islands were ceded to Greece by kaly only in the Peace Treaty of 1947. In consequence, it seems clear that, in the view of the Greek Government, the term “rights” in Article 17 of the General Act has to be interpreted in the light of the geographical extent of the Greek State today, not of its extent in 193 1. It would then be a little surprising if the meaning of Greece’s reservation of disputes relating to its “territorial status” was not also to evolve in the light of the change in the territorial extent of the Greek State brought about by “the development of international relations”.

Furthermore, the close and necessary link that always exists between a jurisdictional clause and reservations to it, makes it difficult to accept that the meaning of the clause, but not of the reservation, should follow the evolution of the law. In the present instance, this difficulty is underlined by the fact that alongside Greece’s reservation of disputes relating to its “territorial status” in reservation (b) is another reservation of disputes relating to questions of “domestic jurisdiction”, the content of which, as the Court has already had occasion to note, is “an essentially relative question” and undoubtedly “depends upon the development of international relations”. Again, the Court can see no valid reason why one part of reservation (b) should have been intended to follow the evolution of international relations but not the other, unless such an intention should have been made plain by Greece at the time.

TAKING TO ACCOUNT DEVELOPMENTS IN INTERNATIONAL LAW. Having regard to the foregoing considerations, the Court is of the opinion that the expression in reservation (b) “disputes relating to the territorial status of Greece” must be interpreted in accordance with the 1931. It follows that in interpreting and applying reservation (b) with respect to the present dispute the Court has to take account of the evolution which has occurred in the rules of international law concerning a coastal State’s rights of exploration and exploitation over the continental shelf. The Court is, therefore, now called upon to examine whether, taking into account the developments in international law regarding the continental shelf, the expression “disputes relating to the territorial status of Greece” should or should not be understood as comprising within it disputes relating to the geographical - the spatial extent of Greece’s rights over the continental shelf in the Aegean Sea.

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THE REAL QUESTION IN THE DISPUTE: WHETHER THE DISPUTE IS ONE WHICH RELATES TO THE TERRITORIAL STATUS OF GREECE.

Accordingly, a linguistic argument presented by the Greek Government, and based on the definitions of the words “statut” (status) and “territorial” in the Dictionnaire de la terminologie du droit international, appears to theCourt to be only of marginal interest. No doubt, it is true the expression territorial status is commonly used in international law with reference to a legal condition or régime of a territory; but although the expression, as Article 39, paragraph 2, of the General Act itself indicates, denotes a category or concept covering clearly specified subject-matters, it is not an expression which can be said to have rigid legal connotations. On the contrary, the Court considers it to be a generic expression which comprises within its meanings various legal conditions and relations of territory. The answer to the question whether any given matter is properly to be considered as relating to the territorial status of a State must, therefore, depend on the particular circumstances of the case.

THE SUBJECT-MATTER OF THE PRESENT DISPUTE:(1) whether certain Greek islands in the Aegean Sea “as part of the territory

of Greece, are entitled to the portion of the continental shelf which appertains to them according to the applicable principles and rules of international law”;

(2) what is “the course of the boundary (or boundaries) between the portions of the continental shelf appertaining to Greece and Turkey in the Aegean Sea in accordance with the principles and rules of inter-national law which the Court shall determine to be applicable to the delimitation of the continental shelf in the aforesaid areas of the Aegean Sea”.

In maintaining that the subject-matter of the dispute embraced by Greece’s submissions does not fall within the scope of reservation (b), the Greek Government puts its case in two ways. First, it contends that the dispute concerns the delimitation of the continental shelf boundary between Greece and Turkey, and that delimitation is entirely extraneous to the notion of territorial status and, secondly, it contends that, the continental shelf not being part of the territory of the coastal State under the applicable rules of international law, the present dispute regarding rights over the continental shelf cannot be considered as one relating to “territorial status”.

QUESTION OF ENTITLEMENT. The basic question in dispute is whether or not certain islands under Greek sovereignty are entitled to a continental shelf of their own and entitle Greece to call for the boundary to be drawn between those islands and the Turkish Coast. The very essence of the dispute, as formulated in the Application, is thus the entitlement of those Greek islands to a continental shelf, and the delimitation of the boundary is a secondary question to be decided after, and in the light of, the decision upon the first basic question. Moreover, it is evident from the documents before the Court that Turkey. which maintains that the islands in question are mere protuberances of the Turkish continental shelf and have no continental shelf of their own, also considers the basic question to be one of entitlement. Quite apart from the fact that the present dispute cannot, therefore, be viewed as one simply relating to delimitation, it would be difficult to accept the broad proposition that delimitation is entirely extraneous to the notion of territorial status. Any disputed delimitation of a boundary entails some determination of entitlement to the areas to be delimited, and

the historical evidence adduced by the Greek Government itself shows that in the treaty practice in the League of Nations period, the notions of “territorial integrity”, “frontiers” and “territorial status” were regarded as closely associated.A DISPUTE RELATING TO TERRITORIAL STATUS. The dispute relates to the determination of the respective areas of continental shelf over which Greece and Turkey are entitled to exercise the sovereign rights recognized by international law. It is therefore necessary to establish the boundary or boundaries between neighboring States, that is to say, to draw the exact line or lines where the extension in space of the sovereign powers and rights of Greece meets those of Turkey. Whether it is a land frontier or a boundary line in the continental shelf that is in question, the process is essentially the same, and inevitably involves the same element of stability and permanence, and is subject to the rule excluding boundary agreements from fundamental change of circumstances.

The second contention mentioned in paragraph 82 above does not put the question to be decided in its correct context. The question for decision is whether the present dispute is one “relating to the territorial status of Greece”, not whether the rights in dispute are legally to be considered as “territorial” rights; and a dispute regarding entitlement to and delimitation of areas of continental shelf tends by its very nature to be one relating to territorial status. The reason is that legally a coastal State’s rights over the continental shelf are both appurtenant to and directly derived from the State’s sovereignty over the territory abutting on that continental shelf. This emerges clearly from the emphasis placed by the Court in the North Sea Continental Shelf cases on “natural prolongation” of the land as a criterion for determining the extent of a coastal State’s entitlement to continental shelf as against other States abutting on the same continental shelf; and this criterion, the Court notes, has been invoked by both Greece and Turkey during their negotiations concerning the substance of the present dispute. As the Court explained in the above-mentioned cases, the continental shelf is a legal concept in which “the principle is applied that the land dominates the sea”; and 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. It follows that the territorial régime -the territorial status of a coastal State comprises, ipso jure, the rights of exploration and exploitation over the continental shelf to which it is entitled under international law. A dispute regarding those rights would, therefore, appear to be one which may be said to “relate” to the territorial status of the coastal State.

Court is of the opinion that the present dispute is one which “relat[es] to the territorial status of Greece” within the meaning of reservation (b) in Greece’s instrument of accession to the General Act. It accordingly finds that Turkey’s invocation of the reservation on the basis of reciprocity has the effect of excluding the present dispute from the application of Article 17 of the Act.

GRECO-TURKISH TREATY OF FRIENDSHIP. In examining the application of the General Act to the present dispute, the Court has not overlooked a suggestion that the Act has never been applicable as between Turkey and Greece by reason of the existence of the Greco-Turkish Treaty of Friendship, Neutrality, Conciliation and Arbitration signed at Ankara on 30 October 1930. This Treaty provided for a general system of procedures for the pacific settlement of disputes between the two countries similar to, but in some respects different from, those provided in the General Act. It entered into force by exchange of ratifications on 5 October 1931, and under Article 28

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was expressed to continue in force for successive periods of five years, unless denounced. The length of these periods was extended to ten years by an “Additional Treaty” of 27 April 1938, which at the same time provided that “the mutual engagements, bilateral or plurilateral”, which the parties had contracted should “continue to produce their full effect irrespective of the provisions of the present Treaty”. By these Treaties and by the General Act, therefore, Greece and Turkey appear, prima facie, to have provided for two parallel systems of pacific settlement, for so long as the 1930 Treaty and the General Act might continue in force, and both Greece and Turkey have stated that they consider the 1930 Treaty still to be in force.

However, the fact already established by the Court that, by reason of Turkey’s invocation of reservation (6) to the Greek accession, the General Act is not applicable to the present dispute, and the fact that the 1930 Treaty has not been invoked as a basis for the Court’s jurisdiction in the present proceedings, dispense the Court from any ‘need to enter into these questions.

SECOND CLAIMED BASIS OF JURISDICTION: JOINT COMMUNIQUE. In paragraph 32 (2) of the Application the Greek Government specified as the second basis on which it claims to establish the Court’s jurisdiction:“The joint communiqué of Brussels of 3 1 May 1975, which followed previous exchange of views, States that the Prime Ministers of Greece and Turkey have decided that the problems dividing the two countries should be resolved peacefully ‘et, au sujet du plateau continental de la mer Egée, par la Cour internationale de La Haye’. The two Govern-ments thereby jointly and severally accepted the jurisdiction of the Court in the present matter, pursuant to Article 36 (1) of the Statute of the Court.”

The Brussels Communiqué of 31 May 1975 does not bear any signature or initials, and the Court was informed by counsel for Greece that the Prime Ministers issued it directly to the press during a press conference held at the conclusion of their meeting on that date. The Turkish Government, in the observations which it transmitted to the Court on 25 August 1976, considered it “evident that a joint communiqué does not amount to an agreement under international law”, adding that “If it were one, it would need to be ratified at least on the part of Turkey”. The Greek Government, on the other hand, maintains that a joint communiqué may constitute such an agreement. To have this effect, it says, “It is necessary, and it is sufficient, for the communiqué to include-in addition to the customary forms, protestations of friendship, recital of major principles and declarations of intent-provisions of a treaty nature”. Counsel for Greece, moreover, referred to the issue of joint communiqués as “a modern ritual which has acquired full status in international practice”.

NATURE & TERMS OF THE COMMUNIQUE. On the question of form, the Court need only observe that it knows of no rule of international law which might preclude a joint communiqué from constituting an international agreement to submit a dispute to arbitration or judicial settlement. Accordingly, whether the Brussels Communiqué of 31 May 1975 does or does not constitute such an agreement essentially depends on the nature of the act or transaction to which the Communiqué gives expression; and it does not settle the question simply to refer to the form - a communiqué - in which that act or transaction is embodied. On the contrary, in determining what was indeed the nature of the act or transaction embodied in the Brussels Communiqué, the Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up.

The relevant paragraphs of the Brussels Communiqué read as follows:“In the course of their meeting the two Prime Ministers had an opportunity to give consideration to the problems which led to the existing situation as regards relations between their countries. They decided [ont décidé] that those problems should be resolved [doivent être résolus] peacefully by means of negotiations and as regards the continental shelf of the Aegean Sea by the International Court at The Hague. They defined the general lines on the basis of which the forthcoming meetings of the representatives of the two Govemments would take place.

In that connection they decided to bring forward the date of the meeting of experts concerning the question of the continental shelf of the Aegean Sea and that of the experts on the question of air space.”

GREECE: THE COMMUNIQUE REPRESENTED AN AGREEMENT. In presenting the Communiqué as constituting a definitive agreement between the Prime Ministers to submit the present dispute to the Court, the Greek Govemment places particular emphasis on the word “décidé” and the words “doivent être résolus” in the original-French- text of the second paragraph. These words, it says, are words of “decision” and of “obligation” indicative of a mutual commitment on the part of the Prime Ministers to refer the dispute to the Court. Specifically, it claims that the “agreement” embodied in the Communiqué “is more than an undertaking to negotiate” and directly “confers jurisdiction on the Court”. It likewise claims that the Communiqué “commits the parties to conclude any implementing agreement needed for the performance of the obligation” and that the refusal by one party to conclude such an agreement “permits the other party to seise the Court unilaterally”. In its view, moreover, no implementing agreement is required by the Communiqué which, it says, “enables the parties to resort to the Court by Application no less than by special agreement”.Finally, if it is considered that “a complementary agreement is a legal prerequisite for seising of the Court”, it maintains that “the two parties are under obligation tonegotiate in good faith the conclusion of such an agreement”.

TURKEY: COMMUNIQUE DOES NOT CONSTITUTE AN AGREEMENT. The Turkish Government, in the observations transmitted to the Court on 25 August 1976, not only denies that the Communiqué constitutes “an agreement under international law” but also maintains that in any event the two Governments cannot be said to have thereby “jointly and severally accepted the jurisdiction of the Court in the present matter” when they have never agreed on the scope of the “matter” to be submitted to the Court. Examination of the text, it maintains, shows that the intention was quite different, and that the Communiqué was “far from amounting to agreement by one State to submit to the jurisdiction of the Court upon the unilateral application of the other State”. According to the Government of Turkey:“it is clear that there was no commitment to submit to the Court without a special agreement because the following paragraph said in this connection that the two Prime Ministers had decided to accelerate the meeting of the experts concerning the question of the continental shelf of the Aegean Sea” This means, in its view, that “priority was given to negotiations” on the substance of the question of the continental shelf, and nothing was said in that connection “even about the negotiation of a special agreement” to submit the question to the Court. It also points to the subsequent efforts of Greece to secure the negotiation of such an agreement as confirmation of the correctness of Turkey’s interpretation of the Communiqué.

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CONTEXT OF THE COMMUNIQUE. This divergence of views as to the interpretation of the Brussels Communiqué makes it necessary for the Court to consider what light is thrown on its meaning by the context in which the meeting of 31 May 1975 took place and the Communiqué was drawn up. The first mention of the Court, according to the evidence, was in a Greek Note Verbale of 27 January 1975, that is some four months before the meeting of the two Prime Ministers in Brussels. In that Note the Greek Government proposed that “the differences over the applicable law as well as over the substance of the matter” should be referred to the Court, adding: “Indeed, the Greek Government, without prejudice to their right to initiate Court proceedings unilaterally, would see considerable advantage in reaching joint & with the Turkish Government a special Agreement. Replying on 6 February 1975, the Turkish Government referred to “meaningful negotiations” as “a basic method for the settlement of international disputes” and said that, because of the absence of such negotiations, “the issues relating to the disputes have neither been fully identified nor elucidated”. It then continued: “However, in principle, the Turkish Government favorably considers the Greek Government’s proposal to refer the dispute over the delimitation of the Aegean continental shelf to the International Court of Justice. To this effect and to elaborate the terms under which the matter shall be referred to the said Court, Turkey proposes high level talks to be initiated between the two Governments. On 10 February 1975, commenting on the Turkish reply, the Greek Govemment noted with satisfaction that “the Turkish Government accept in principle their proposal that the question of the delimitation of the continental shelf of the Aegean Sea be submitted jointly to the Intemational Court of Justice in The Hague”. It also agreed that “following suitable preparation, talks should be held in order to draft the terms of the special agreement (compromisum) required to that effect” (ibid.). This led the Turkish Prime Minister, when explaining the matter to the Turkish Grand National Assembly on 3 March 1975 to Say: “The Greeks have answered positively to Our proposal concerning talks prior to Our going to The Hague. These [talks] did not start yet. The object of the talks will be the special agreement (compromis) which will define the basis of the case.”

According to the information before the Court, those were the respective positions which the two Governments had taken up a short time before their Foreign Ministers met in Rome on 17- 19 May 1975 to discuss, inter alia, the question of the continental shelf in the Aegean Sea. Furthermore, in the light of the diplomatic exchanges, the Greek Government can hardly have been left in any doubt as to the nature of the proposal regarding the Court which the Turkish Government would understand to be the subject of the discussions at the Rome meeting: namely, a joint submission of the dispute to the Court by agreement.

NOTE VERBALE. Reference is made to the proceedings at the Rome meeting in a later Greek Note Verbale of 2 October 1975, from which it appears that the Greek delegation submitted a draft text of a compromis for negotiation, but the Turkish delegation said that they were not yet ready to discuss it and needed more time to prepare themselves. The meeting ended with the issue by the two Foreign Ministers on 19 May 1975 of a brief Joint Communiqué, which included the following statements:

“The questions relating to the continental shelf of the Aegean Sea were discussed and initial consideration was given to the text of a special agreement concerning the submission of the matter to the International Court of Justice.

It was agreed that the meetings between experts would be continued in the near future.”

According to the above-mentioned Note Verbale of 2 October 1975, a committee of experts was to meet at the earliest possible date “to negotiate the special agreement”, and to explore a Turkish idea in regard to joint exploitation. The Turkish Government also referred to the Rome meeting, in a Note of 18 November 1975. It there spoke of the Greek delegation having agreed to seek a negotiated settlement of the differences, bearing also in mind the Turkish proposal for joint exploration and exploitation of resources, and to try to prepare, if necessary, a draft special agreement for the joint reference to the International Court of Justice of those aspects of the situation which, they might agree, were the points of genuine disagreement between the two sides”.

TURKEY HAS NOT ACCEPTED THE COURT’S JURISDICTION. The Court can see nothing in the terms of the Rome Communiqué of 19 May 1975, or in the subsequent accounts of the meeting given by the two Governments, which might indicate that Turkey was then ready to contemplate, not a joint submission of the dispute to the Court, but a general acceptance of the Court’s jurisdiction with respect to it. On the contrary, the positions of the Greek and Turkish Governments on this point appear to have been quite unchanged when, only a few days later on 31 May 1975, the two Prime Ministers began their meeting in Brussels.

Consequently, it is in that context-a previously expressed willingness on the part of Turkey jointly to submit the dispute to the Court, after negotiations and by a special agreement defining the matters to be decided-that the meaning of the Brussels Joint Communiqué of 31 May 1975 has to be appraised.

SPECIAL AGREEMENT FIRST BEFORE GOING TO COURT. When read in that context, the terms of the Communiqué do not appear to the Court to evidence any change in the position of the Turkish Government in regard to the conditions under which it was ready to agree to the submission of the dispute to the Court. It is true that the Communiqué records the decision of the Prime Ministers that certain problems in the relations of the two countries should be resolved peacefully by means of negotiations, and as regards the continental shelf of the Aegean Sea by the Court. As appears however from paragraph 97 above, they also defined the general lines on the basis of which the forthcoming meetings of the representatives of the two Governments would take place and decided in that connection to bring forward the date of the meeting of experts. These statements do not appear to the Court to be inconsistent with the general position taken up by Turkey in the previous diplomatic exchanges: that it was ready to consider a joint submission of the dispute to the Court by means of a special agreement.At the same time, the express provision made by the Prime Ministers for a further meeting of experts on the continental shelf does not seem easily reconcilable with an immediate and unqualified commitment to accept the submission of the dispute to the Court unilaterally by Application. In the light of Turkey’s previous insistence on the need to “identify” and “elucidate” the issues in dispute, it seems unlikely that its Prime Minister should have undertaken such a commitment in such wide and imprecise terms.

NO COMMITMENT TO SUBMIT DISPUTE TO ICJ. The information before the Court concerning the negotiations between the experts and the diplomatic exchanges subsequent to the Brussels Communiqué appears to confirm that the two Prime Ministers did not by their “decision” undertake an unconditional commitment to submit the continental shelf dispute to the Court. The two sides, it is true, put somewhat different interpretations upon the meaning of the Communiqué, the Turkish side

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insisting upon the need for meaningful negotiations on the substance of the dispute before any submission to the Court, the Greek side pressing for the case to be taken directly to the Court. From the first, however, the Turkish side consistently maintained the position that reference of the dispute to the Court was to be contemplated only on the basis of a joint submission after the conclusion of a special agreement defining the issues to be resolved by the Court. Even the Greek Government, while arguing in favor of immediate submission of the dispute to the Court, referred to the drafting of a special agreement as “necessary” for submitting the issue to the Court.

USE OF JOINT COMMUNIQUE AS BASIS OF JURISDICTION: A MERE AFTERTHOUGHT OF GREECE. It is also significant that nowhere in the diplomatic exchanges or in the negotiations between the experts does the Greek Government appear to have invoked the Joint Communiqué as an already existing and complete, direct title of jurisdiction. Furthermore, although in a Note Verbale of 27 January 1975, before any Joint Communiqué existed, the Greek Government expressly reserved its “right to initiate Court proceedings unilaterally” (presumably having in mind the General Act), the Court has not found any mention by Greece, prior to the filing of the Application, of the possibility that the dispute might be submitted to the Court unilaterally on the basis of the Joint Communiqué.

COMMUNIQUE NOT A VALID BASIS FOR JURISDICTION. Accordingly, having regard to the terms of the Joint Communiqué of 31 May 1975 and to the context in which it was agreed and issued, the Court can only conclude that it was not intended to, and did not, constitute an immediate commitment by the Greek and Turkish Prime Ministers, on behalf of their respective Governments, to accept unconditionally the unilateral submission of the present dispute to the Court. It follows that, in the opinion of the Court, the Brussels Communiqué does not furnish a valid basis for establishing the Court’s jurisdiction to entertain the Application filed by Greece on 10 August 1976.

DISPOSITION. In so finding, the Court emphasizes that the sole question for decision in the present proceedings is whether it does, or does not, have jurisdiction to entertain the Application filed by Greece on 10 August 1976. Having concluded that the Joint Communiqué issued in Brussels on 31 May 1975 does not furnish a basis for establishing the Court’s jurisdiction in the present proceedings, the Court is not concerned, nor is it competent, to pronounce upon any other implications which that Communiqué may have in the context of the present dispute. It is for the two Governments themselves to consider those implications and what effect, if any, is to be given to the Joint Communiqué in their further efforts to arrive at an amicable settlement of their dispute. Nothing that the Court has said may be understood as precluding the dispute from being brought before the Court if and when the conditions for establishing its jurisdiction are satisfied. For these reasons, by 12 votes to 2, finds that it is without jurisdiction to entertain the Application filed by the Govemment of the Hellenic Republic on 10 August 1976.

Arbitration between the United Kingdom of Great Britain and Northern Ireland and the French Republic on the Delimitation of the Continental Shelf: ANGLO FRENCH ARBITRATION (30 June 1977)

INTRODUCTION

1. Following several years of unsuccessful negotiations, the Governments of the

United Kingdom and France agreed that the delimitation of the continental shelf as between the two countries should be submitted to an ad hoc Court of Arbitration. An Agreement providing for the establishment of the Court and for its terms of reference was signed by representatives of the two Governments on 10 July 1975. As defined in the Agreement, the arbitration area stretches from the meridian 0'30' West of Greenwich (roughly south of Worthing) to the 1,000 metre depth contour in the South-Western Approaches (some 170 nautical miles south-west of tile Scilly Isles).

2. The Court delivered a unanimous decision (dated 30 June 1977) to representatives of both Governments on 18 July 1977. Judge Briggs, while expressing his agreement with the boundary lines laid down by the Court, appended a separate declaration dealing with certain points of law. In the Court's decision, which, under Article 10(l) of the Arbitration Agreement is final and binding on tile two Governments, the following boundary lines were laid down: in the English Channel, a median line giving full effect to all islands (including the Eddystone); in the South-Western Approaches, a median line giving half effect to the Scilly Islands; and in the area to the north and northwest or tile Channel Islands, a 12-mile enclave boundary. The Court declared that it was not competent under the Arbitration Agreement to delimit the boundary in the narrow belt cast and south of the Channel Islands (where questions affecting the territorial sea were involved).

3. The relevant portion of the Arbitration Agreement reads:

ARTICLE 2

1. The Court is requested to decide, in accordance with the rules of international law applicable in the matter as between the Parties' the following question:

What is the course of the boundary (or boundaries).between the portions of the continental shelf appertaining to the United Kingdom and the Channel Islands and to the French Republic, respectively, westward of 30 minutes West of the Greenwich Meridian as far as the 1,000 metre isobath?

2. The choice of the 1,000 metre isobath is without prejudice to the position of either Government concerning the outer limit of the continental shelf

4. THE FRENCH SUBMISSION ON THE APPLICABLE LAW. With regard to the applicable law in the resolution of the dispute, France made a submission that although it has acceded to the Geneva Convention (“CONVENTION”) on the Continental Shelf in 14 June 1965, it has made reservations regarding the said convention pursuant to Article 12 thereof. The UK, in turn, made objections as to France’s reservations. As a result, the Convention is not in force between France and the UK, and it has continued to be so because France has never exhibited any conduct to lead any state to believe that it has abandoned such reservations. For purposes of the arbitration, therefore, the rules of international law applicable between the Parties are the rules of customary law, as stated in particular by the International Court of Justice in the North Sea Continental Shelf cases and confirmed by the subsequent practice of States and the work of the Third Conference on the Law of we Sea. Those rules prescribe that the

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boundary (or boundaries) between the portions of the Continental Shelf appertaining to the United Kingdom and the Channel Islands and to the French Republic respectively westward of 30 minutes west of the Greenwich Meridian and as far as the 1,000-metre isobath must be drawn in conformity with the principle of the natural prolongation of the territories of each of the two States and with the equitable principles towards the elucidation of which the Court contributed in the aforementioned cases.

5. THE ENGLISH SUBMISSION ON THE APPLICABLE LAW. The UK contends that, neither at the time of the formulation of France's reservations on accession to the Geneva Convention of 1958 on the Continental Shelf nor at the time or the formulation of the United Kingdom's observations on those reservations (nor subsequently), did there exist any rule of international law establishing a presumption (still less an irrebuttable presumption) that, in relation to a treaty containing no provisions regarding reservations, an objection to a reservation precluded the entry into force of the treaty as between the "reserving" and the "objecting" States. Further, the rules of general international law on the subject of reservations to multilateral conventions (which in this respect have remained unchanged since the relevant time) require effect to be given in the first instance to the particular regime for reservations contained in the text of the treaty in question; that is to say, in the particular case of the 1958 Convention, Article 12 of the said Convention, which expressly permits reservations to be made to articles thereof other than Articles 1 to 3 inclusive. To the extent that the legal effect of the French Reservations to the 1958 Convention is not specifically provided for by the terms of tile said Article 12, the legal effect of the said reservations and of the United Kingdom's observations thereon is determined on the basis of the intention underlying the United Kingdom's observations inferred from the terms thereof and from the surrounding circumstances. In this regard, the clear and unmistakable intention underlying the observations of he United Kingdom on the said French reservations was not to preclude the establishment, or deny the existence of, treaty relations with France on the basis of the 1958 Convention including Article 6 thereof. France is, in any event, precluded by her subsequent conduct from denying the applicability of the 1953 Convention as a whole, including Article 6 thereof, as between the United Kingdom and France. Accordingly the 1958 Convention is in its entirety a treaty in force between the United Kingdom and France. However, in the alternative, should the Court find that France’s reservation to the Convention has been effective ipso jure from the time of its accession, the UK contends that such reservations were not the ones contemplated in international law, or that they are not the ones permitted under Article 6.

THE GEOPHYSICAL CHARACTERISTICS OF THE ARBITRATION AREA

6. The area of continental shelf with which the Court is concerned in the present arbitration (hereafter for convenience termed the "arbitration area") forms part of the continental shelf or North-West Europe, which extends over the submarine areas of the North Sea and English Channel (La Manche)' and of all the waters lying westwards of France and the United Kingdom as far as the furthest limits or the continental shelf in the Atlantic ocean. The arbitration area comprises the continental shelf of the Channel westward of 30' west of Greenwich, and the portions of the continental shelf appertaining to France and the United Kingdom in the Atlantic region immediately to the westward of the Channel as far as the 1,000 metre isobath. The continental shelf of this area, as the information before the Court clearly shows and both Parties have stressed in their pleadings, is characterized by the essential continuity of its geological structure.

7. The information before the Court indicates the presence in the Atlantic region of certain geological faults or groups of faults in the structure of the continental shelf to the-west of the Ushant-Scillies line. A series of such faults, which follow the same general south-westerly trend as the English Channel, is to be found in the Atlantic region as far as 6'30' west of Greenwich and others, with a more southerly trend, extend almost as for as the 1,000-metre isobath. The Parties are in accord as to the existence of the faults in the geological structure of this region, and as to their general south-westerly trend. They are also at one in considering that the faults do not detract from the essential geological continuity of the continental shelf. They are not, however, in agreement as to the sufficiency of the scientific information regarding the geological features in question or as to its correct interpretation; nor are they agreed as to the significance of the faults in relation to the geology and geomorphology of the shelf. The French Government considers the faults to constitute, at most, minor and disconnected rifts in the structure of the shelf and is unable to see in them any coherent or continuous fault zone. The United Kingdom Government, on the contrary, considers these geological features, which it denominates the Hurd Deep Fault Zone, to establish the existence of a major and persistent rift in the structure or the shelf constituting a prolongation of the Hurd Deep into the Atlantic region. These differences between the Parties relate to the alternative and subsidiary Submission put forward by the United Kingdom that if IL continuous median line should not be adopted as the boundary throughout the arbitration area. the Hurd Deep and Hurd Deep Fault Zone provide the only appropriate dividing line between the natural prolongation’s of the continental shelves or each country. The Court, for reasons given later in this Decision, does not find it necessary to resolve the differences between the Parties concerning the character and the significance of the geological faults of the continental shelf. The Court, therefore, finds it unnecessary here to set out in detail the facts and evidence placed before it regarding these faults.

8. Although the Parties are agreed that the boundary should, in principle, be the median line in these areas where the coasts of the Channel Islands and those of Normandy and Brittany arc opposite each other, the median line boundaries which they propose by no means coincide. On the contrary, the boundaries diverge in a number of places, and these divergence’s reflect unresolved differences regarding the conformity with international law of the use of this or that base-point by one or other Party. The United Kingdom, for example, contests the French Republic's use of a. straight baseline across the Anse do Vauville, while the French Republic challenges the United Kingdom's use of the Ecrehos and Minquiers groups as base-points for the median line. Again, if the Minquiers arc not accepted as constituting a base-point, the United Kingdom challenges the legitimacy of the French Republic's use of the Roches Douvres; and if the Minquiers are used as a base-point, the French Republic asserts a right to the use of the Chausey group for delimiting the median line.

COURT’S RULING ON THE APPLICABLE LAW

9. The basic difference between the Parties as to the applicable law concerns the question whether the Convention on the Continental Shelf concluded at Geneva on 29 April 1958, and in particular Article 6 of that Convention, is in force between them and governs the present matter or whether it is the rules of customary law which apply. Although tile French Republic and the United Kingdom are both parties to that Convention, the French Government contends that it has never entered into force

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between the French Republic and the United Kingdom by reason of the latter's refusal to accept certain reservations formulated by the French Republic when depositing its instrument of accession to the Convention. The question being one of the respective intentions of the French Republic and the United Kingdom in regard to their- legal relations under the Convention, it is necessary first to set out the facts indicative of their intentions.

10. FIRST EVIDENCE: ENGLISH NOTE VERBALE. By a Note Verbale of 18 February 1964, before either State had ratified the Convention, the United Kingdom Government invited the French Government to enter into preliminary discussions "with a view to arriving it procedures for agreeing a line dividing that part of the Continental Shelf which lies between France and the United Kingdom." It proposed that this line should be calculated on median line principles and the measurements taken, in accordance with Article 6 of the Continental Shelf Convention, from baselines drawn in accordance with the provisions of the 1958 Convention on the Territorial Sea. At the same time, it informed the French Government that the necessary United Kingdom legislation for establishing straight baselines would shortly be submitted to Parliament and that, for reasons of uniformity, the United Kingdom considered it "desirable that the calculations for the median lines on the continental shelf should be made from baselines drawn in accordance with the 1958 Convention rather than from the low-water mark." On 11 May 1964, the United Kingdom ratified the Convention which, under Article 11, then entered into force on 10 June of that year.

11. SECOND EVIDENCE: FRENCH NOTE VERBALE. The French Government by a Note Verbale of 7 August 1964, accepted the United Kingdom's proposal for preliminary discussion. In doing so, it informed the latter of its intention to accede to the 1958 Convention subject to a number of reservations and an interpretative declaration of Article I designed to stress that the term "areas adjacent" in itself excludes an unlimited extension of the continental shelf. In addition, it specified that the French Government considered special circumstances within the meaning of Article 6, paragraph 1, of the Geneva Convention to exist in regard to the continental shelf adjacent to the coasts of France and the United Kingdom. And it further stated that in these circumstances, "an equidistance line determined unilaterally by France or by tile United Kingdom, based on straight baselines, such as those referred to in the United Kingdom's Note of 18 February 1964, could not be admitted for the calculation of the dividing line without the agreement of the other Party".

12. THIRD EVIDENCE: FRANCE’S RESERVATIONS TO THE GENEVA CONVENTION. On 14 June 1965 the French Republic deposited its instrument of accession to the Convention to which was appended the following declaration:'

ARTICLE 1

In the view of the Government of the French Republic, the expression "adjacent" areas implies a notion of geophysical, geological and geographical dependence which ipso facto rules out an unlimited extension of the continentalshelf.

ARTICLE 2 (paragraph 4)

The Government of the French Republic considers that the expression "living organisms belonging to sedentary species" must be interpreted as excluding crustaceans, with the exception of the species of crab termed "barnacle"; and it makes the following reservations: ...

ARTICLE 4

The Government of the French Republic accepts this article only on condition that the coastal State claiming that the -measures it intends to take are "reasonable' agrees that if their reasonableness is contested it shall be determined by arbitration.


The Government of the French Republic accepts the provisions of Article 5, paragraph 1, with the following reservations:

(a) An essential element which should serve as a basis for appreciating any 'interference' with the conservation of the living resources of the sea, resulting from the exploitation or the continental shelf, particularly in breeding areas for maintenance of stocks, shall be the technical report of the international scientific bodies responsible for tile conservation of the living resources of the sea in the areas specified respectively in Article 1 of the Convention for the North-West Atlantic Fisheries of 8 February 1949 and Article 1 of the Convention for the North-East Atlantic Fisheries of 24 January 1959.

(b) Any restrictions placed oil the exercise of acquired fishing rights in waters above the continental shelf shall give rise to a right to compensation.

(c) It must be possible to establish by means of arbitration, if the matter is contested, whether the exploration of tile continental shelf and the exploitation of its natural resources result in an interference with the other activities protected by Article 5, paragraph 1, which is unjustifiable.

ARTICLE 6 (paragraphs 1 and 2)

In the absence of a specific agreement the Government of the French Republic will not accept that any boundary or the continental shelf determined by application of the principle equidistince shall be invoked against it:

- if such boundary is calculated from baselines established after 29 April 1958;

- if it extends beyond the 200-metre isobath;

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- if it lies in areas where, in the Government's opinion, there are 'special circumstances' within the meaning of Article 6, paragraphs I and 2, that is to say: the Bay of Biscay, the Bay of Granville. and the sea areas of the Straits of Dover and of the North Sea off the French coast."

13. FOURTH EVIDENCE: UK’S OBJECTIONS TO FRANCE’S RESERVATIONS. Notification or France's instrument of accession and of its declaration was received by the United Kingdom from the Secretary-General on 30 July 1965, and on 14 January 1966, it addressed a communication to the Secretary-General as depositary of the Convention in the following terms.

"ARTICLE 1

The Government of the United Kingdom take note of the declaration made by the Government of the French Republic and reserve their position concerning it.


This declaration does not call for any observations on the part of the Government of the United Kingdom.

ARTICLE 4

The Government of the United Kingdom and The Government of the French Republic are both parties to the Optional Protocol or Signature concerning the Compulsory Settlement of Disputes done at Geneva on the 29th April 1958. 'Me Government of the United Kingdom assume that the declaration made by the Government of the French Republic is not intended to derogate from the rights and obligations of the parties to the Optional Protocol.


Reservation (a) does not call for any observation on the part of the Government of the United Kingdom;

The Government of the United Kingdom are unable to accept reservation (b);

The Government of the United Kingdom are prepared to accept reservation (c) on tile understanding that it is not intended to derogate from the rights and obligations of parties to the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes.

ARTICLE 6 (paragraphs 1 and 2)

The Government of the United Kingdom are unable to accept the reservations made by the Government of the French Republic."

14. COURT’S INTERPRETATION: GENEVA CONVENTION IS IN FULL FORCE AND EFFECT BETWEEN UK AND FRANCE. The Court is directed by Article 2 of the Arbitration Agreement to decide the course or the boundary "in accordance with the rules of international law applicable in the matter as between the Parties"; and, as the Parties agree, the rules of international law to be applied by the Court under this rubric are unquestionably the rules in force today. At the same time, the Court recognises both the importance or the evolution of the law or the sea which is now in progress and the possibility that a development in customary law may, under certain conditions, evidence the assent of the States concerned to the modification, or even termination, of previously existing treaty rights and obligations. But the Continental Shelf Convention of 1958 entered into force as between the Parties little more than a decade ago. Moreover, the information before the Court contains references by the French Republic and the United Kingdom, as well as by other States, to the Convention as an existing treaty in force which are of quite recent date. Consequently, only the most conclusive indications of the intention of the parties to the 1958 Convention to regard it as terminated could warrant this Court in treating it as obsolete and inapplicable as between the French Republic and the United Kingdom in the present matter. In the opinion of the Court, however, neither the records of the Third United Nations Conference on the Law of the Sea nor the practice of States outside the Conference provide any such conclusive indication that the Continental Shelf Convention of 1958 is today considered by its parties to be already obsolete and no longer applicable as a treaty in force. The Court accordingly finds that the Geneva Convention or 1958 on the Continental Shelf is a treaty in force, the provisions or which are applicable as between the Parties to the present proceedings under Article 2 of the Arbitration Agreement. This finding, the Court wishes at the same time to emphasise, does not mean that it regards itself as debarred from taking an account in these proceedings of recent developments in customary law. On the contrary, the Court has no doubt that it should take due account of the evolution of the law of the sea in so far as this may be relevant in the context of the present case.

15. ON THE FRENCH RESERVATION. The Court considers that the answer to the question of the legal effect of the French reservations lies partly in the contentions of the French Republic and partly in those of the United Kingdom. Clearly, the French Republic is correct in stating that the establishment of treaty relations between itself and the United Kingdom under the Convention depended on the consent of each State to be mutually bound by its provisions; and that when it formulated its reservations to Article 6 it made its consent to be bound by the provisions of that Article subject to the conditions embodied in the reservations.. There is, on the other hand, much force in the United Kingdom's observation that its rejection was directed to the reservations alone and not to Article 6 as a whole. In short, the disagreement between the two countries was not one regarding the recognition of Article 6 as applicable in their mutual relations but one regarding the matters reserved by the French Republic from the application of Article 6. The effect of the United Kingdom's rejection of the reservations is thus limited to the reservations themselves. The fact that Article 6 is not applicable as between the Parties to the extent that it is excluded by tile French reservations does not mean that there arc no legal rules to govern the delimitation of the boundary in areas where the reservation operates. On the contrary, as the International Court or justice observed in tile North Sea Continental Shelf cases, there are still rules and principles of law to be applied"; and these are the rules and principles governing delimitation of the continental shelf in general international law.

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16. THE “EQUIDISTANCE-SPECIAL CIRCUMSTANCES” METHOD AS THE PREVAILING RULE OF DELIMITATION UNDER THE CONVENTION. The Court does not overlook that under Article 6 the equidistance principle ultimately possesses an obligatory force which it does not have in the same measure under the rules of customary law; for Article 6 makes the application of the equidistance principle a matter or treaty obligation for Parties to the Convention. But the combined character or the equidistance-special circumstances rule means that the obligation to apply the equidistance principle is always one qualified by the condition "unless another boundary line is justified by special circumstances". Moreover, the travaux preparatories of Article 6, in the International Law Commission and at the Geneva Conference of 1958, show that this condition was introduced into paragraphs 1 and 2 of the Article because it was recognised that, owing to particular geographical features or configurations, application of the equidistance principle might not infrequently result in an unreasonable or inequitable delimitation of tile continental shelf. In short, the role of the "special circumstances" condition in Article 6 is to ensure an equitable delimitation and the combined "equidistance-special circumstances rule", in effect, gives particular expression to a general norm that, failing agreement, the boundary between States abutting on the same continental shelf is to be determined oil equitable principles. In addition, Article 6 neither defines "special circumstances" nor lays down tile criterion by which it is to be assessed whether any given circumstances justify a boundary line other than the equidistance line. Consequently, even under Article 6 the question whether the use of the equidistance principle or some other method is appropriate for achieving an equitable delimitation is very much a matter of appreciation in the light of the geographical and other circumstances. In other words, even under Article 6 it is the geographical and other circumstances of any given case which indicate and justify the use of the equidistance method as the means of achieving an equitable solution rather than the inherent quality of the method as a legal norm of delimitation.

17. FRANCE’S THIRD RESERVATION. More significance clearly attaches to the third reservation designating areas in which the French Republic considers there are "special circumstances" within the meaning of Article 6 by reason or the inclusion of the ,Bay or Granville" amongst those areas. In the pleadings the United Kingdom has contested the French Government's interpretation of the expression "Bay of Granville" as covering the whole Channel Islands region. Tracing the development of the various uses of this expression, the United Kingdom claims that previous uses or the expression have related only to sea areas to the cast and south of Jersey; and it maintains that the French Republic has, accordingly, not established that, as used in the reservation, the expression extends to the Channel Islands region as a whole. No doubt, the expression "Baie de Granville" may have normally been used in the past with a more restricted sense. During the negotiations in the years 1970-1974, however, as the Court has already noted in paragraph 35, mention was made by both Parties of the French reservation regarding "Granville Bay", and in the documents before the Court relating to those negotiations they are recorded as having discussed the delimitation of the boundary in the whole Channel Islands region under the rubric "Granville Bay". Nor is there any indication in those documents of the French reservations having been given a more restricted interpretation. As, moreover, it hardly seems probable that the French Government intended to restrict its reservation to the "Baie de Granville" in one of the narrower senses of this expression. the Court considers that this reservation must be viewed as relating to the Channel Islands

region as a whole. The reservation having been rejected by the United Kingdom, the delimitation or the continental shelf boundary in the Channel Islands region must accordingly be determined by reference to the rules of customary law.

18. REVISITING THE NORTH SEA CONTINENTAL SHELF CASE DOCTRINE. The Court there made certain observations, which were of an entirely general character, regarding the differing validity of the equidistance principle as a means of achieving an equitable delimitation in different geographical situations. These observations, to which the present Court of Arbitration in general subscribes, indicate that the validity of the equidistance method, or of any other method, as a means of achieving an equitable delimitation of the continental shelf is always relative to the particular geographical situation. In short, whether under customary low or Article 6, it is never a question either of complete or of no freedom of choice as to method; for the appropriateness the equitable character - of the method is always a function of the particular geographical situation. As to the Court's observations on the role of the equidistance principle, it was far from discounting the value of the equidistance method of delimitation, while declining to regard it as obligatory under customary law. "It has never been doubted", the Court commented, "that the equidistance method is a very convenient one, the use of which is indicated in a considerable number of cases; and again it commented "it would probably be true to say that no other method of delimitation has the same combination of practical convenience and certainty of application". The truth of these observations is certainly borne out by State practice, which shows that up to date a large proportion of the delimitations of the continental shelf have been effected by the application either or the equidistance method or, not infrequently, of some variant of that method. But the Court also draw a clear, and even sharp, distinction between the geographical situations where the coasts of States abutting on the same continental shelf are opposite and where they are adjacent to each other;

"Most of the difficulties felt in the International Law Commission related, as here, to the case or the lateral boundary between adjacent States. Less difficulty was felt over that or the median line boundary between opposite States, although it too is an equidistance line. For this there seems to the Court to be good reason. The continental shelf area off, and dividing, opposite States, can be claimed by each of them to be a natural prolongation of its territory. These prolongations meet and overlap, and can therefore only be delimited by means of a median line; and, ignoring the presence of islets, rocks and minor coastal projections, the disproportionally distorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved. This type of case is therefore different from that of laterally adjacent States on the same coast with no immediately opposite coast in front or it and does not give rise to the same kind or problem - a conclusion which also finds some confirmation in the difference of language to be observed in the two paragraphs of Article 6 of the Geneva Convention... as respects recourse in the one case to median lines and in the other to lateral equidistance lines, in the event of absence of agreement.

Further explaining its reasons for making this distinction, the Court said (I.C.J. Reports 1969, paragraph 58):

"whereas a median line divides equally between the two opposite countries areas that can be regarded as being the natural prolongation of the territory of each of

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them, a lateral equidistance line often leaves to one of the States concerned areas that are a natural prolongation of the territory of the other".

The International Court of Justice also singled out an aspect of lateral boundary situations which tend to increase the likelihood that strict application of the equidistance method may be productive of inequitable results in delimitations between States having adjoining coasts. Although its observations on this aspect of "adjacent States" situations were directed to the particular context of a concave coastline formed by the adjoining territories of three States, they reflect an evident geometrical truth and clearly have a more general validity. It pointed out that in the case or lateral boundaries the effect of any irregularity in the coastline on the areas of continental shelf allocated to each State by the equidistance method is automatically magnified, the greater the distance the boundary extends from the shore. Speaking of the case of a concave or convex coastline, It said (I.C.J. Reports 1969, paragraph 89 (a); and cf. paragraphs 8 and 59);

“if the equidistance method is employed, then the greater the irregularity and the further from the coastline the area to be delimited, the more unreasonable are the results produced. So great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for' as far as possible, being of itself creative or inequity".

Clearly, this characteristic of the equidistance method marks a material difference between a geographical situation or "opposite States" and one of "adjacent States" in the delimitation of continental shelf boundaries.

19. THE “OPPOSITE STATES” SITUATION AS THE APPLICABLE STANDARD. In the present proceedings, both the Parties have recognised the significance of the distinction drawn by the International Court of Justice between "opposite States" and "adjacent States" situations in relation to the use of the equidistance method whether under Article 6 or under customary law. They are agreed that throughout the English Channel where the coasts of the French Republic and the United Kingdom are opposite each other the boundary should, in principle, be the median line. They are in. radical disagreement as to the appropriate method of delimitation in the Channel Islands region. Even in that region, as already mentioned in paragraph 15, they are agreed that in the areas where the coasts of the Channel Islands and the coasts of Normandy and Brittany are opposite each other, the seabed and subsoil boundary should in principle be the median line. In short, leaving aside the special problem resulting from the position of the Channel Islands off the French coast, they are agreed that the geographical and legal frame of reference for the delimitation of the boundary is that of an "opposite States" situation; and that, in consequence, the appropriate method is, in principle, equidistance. In so agreeing, the French Republic bases itself on the rules or customary law, the United Kingdom provisions of Article 6 of the Convention; but the result is the same. which seems to confirm that, under either head, it is the geographical situation which indicates the applicable method or delimitation. In any event, this Court of Arbitration sees no reason to differ from the conclusion of the Parties that, in principle, the method applicable in the English Channel is to draw a median line equidistant from their respective coasts, a conclusion which is in accordance both with Article 6 of the Convention and with the appreciation by the International Court of Justice of the position in customary law.

The observations of the International Court of Justice regarding the difference between the application of the equidistance method in "median line" and "lateral line" boundary situations were, as already stressed, framed in general terms applicable alike to delimitation under the provisions of Article 6 or under the rules of general international law. The reason is clear: the relationship of "opposite" or "adjacent" States is nothing but a reflection of the geographical facts, and the transfer of the legal plane from the Convention to customary law does not modify the geographical facts. It is also clear that the distinction drawn by the Court between the two geographical situations is one derived not from any legal theory but from the very substance of the difference between the two situations. Whereas in the case, of "opposite" States a median line will normally effect a broadly equitable delimitation, a lateral equidistance line extending outwards from the coasts of adjacent States for long distances may not infrequently result in an inequitable delimitation by reason of the distorting effect of individual geographical features. In short, it is the combined effect of the side-by-side relationship of the two States and the prolongation of the lateral boundary for great distances to seawards which may be productive of inequity and is the essence of the distinction between "adjacent" and "opposite" coasts situations.

In short, this Court considers that the appropriateness of the equidistance method or any other method for the purpose of effecting an equitable delimitation is a function or reflection of the geographical and other relevant circumstances of each particular case. The choice of the method or methods of delimitation in any given case, whether under the 1958 Convention or customary law, has therefore to be determined in the light of those circumstances and or the fundamental norm that the delimitation must be in accordance with equitable principles. Furthermore, in appreciating the appropriateness of the equidistance method as a means or achieving an equitable solution, regard must be had to the difference between a "lateral" boundary between "adjacent" States and a "median" boundary between "opposite" States.

COURT’S APPLICATION OF THE LAW TO THE FACTS OF THE CASE

20. In the English Channel, leaving aside the particular situation resulting from the Channel Islands' being located off the French coast, the geographical and the legal frame of reference for determining the course or the boundary of the continental shelf is patently that of a delimitation between "opposite" States. The effects or irregularities in the coastline of each State are, broadly, offset by the effects of irregularities in the coastline of the other, and a median line boundary will thus result in a generally equitable delimitation as between the Parties. The Court, therefore, considers that its first step should be to determine the course of the median line within the Channel to the east and to the west of the points where the presence of the Channel Islands has to be taken into consideration.

21. THE HURD DEEP-HURD DEEP FAULT. The Court does not consider that the Hurd Deep-Hurd Deep Fault Zone is a geographical feature capable of exercising a material influence on the determination of the boundary either in the Atlantic region or in the English Channel. The Court shares the view repeatedly expressed by both Parties that the continental shelf throughout the arbitration area is characterised by its essential geological continuity. The geological faults which constitute the Hurd Deep and the so-called Hurd Deep Fault Zone, even if they be considered as distinct features in the geomorphology of the shelf, are still discontinuities in the seabed and

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subsoil which do not disrupt the essential unity of the continental shelf either in the Channel or the Atlantic region. Indeed, In comparison with the deep Norwegian Trough in the North Sea, they can only be regarded as minor faults in the geological structure of the shelf; and yet the United Kingdom agreed that the trough should not constitute an obstacle to the extension of Norway's continental shelf boundary beyond that major fault zone. Moreover, to attach critical significance to a physical feature like the Hurd Deep Hurd Deep Fault Zone in delimiting the continental shelf boundary in the present case would run counter to the whole tendency of State practice on the continental shelf in recent years. In any event, having regard to the essential continuity of the continental shelf in the Channel and the Atlantic region, there does not seem to be any legal ground for discarding the equidistance or any other method of delimiting the boundary in favour simply of such a feature as the Hurd Deep-Hurd Deep Fault Zone. Should the equidistance line not appear to the Court to constitute the appropriate boundary in any area, it will be because some geographical feature amounts to a "special circumstance" justifying another boundary under Article 6 or, by rendering the equidistance line inequitable, calls under customary law for the use of some other method. It follows that any alternative boundary would have either to be one justified by the "special circumstances" or one apt to correct the inequity caused by the particular geographical feature. But the axis of the Hurd Deep-Hurd Deep Fault Zone is placed where it is simply as a fact of nature, and there is no intrinsic reason why a boundary along that axis should be the boundary which is justified by the special circumstance under Article 6 or which, under customary law, is needed to remedy the particular inequity.

22. THE CHANNEL ISLANDS. In the view of the Court, it is manifest from a mere glance at the map that, with respect to the delimitation of the continental shelf as between the French Republic and the United Kingdom, the Channel Islands region presents particular features and problems. The Parties themselves both recognize that this region has particular features. But they disagree as to which of its features are to be considered particular and as to how far any or them may constitute a “special circumstance" justifying a boundary other than the median line or a circumstance creative of inequity. The Parties likewise base opposing considerations or law and equity upon the features which one or other of them alleges to be particular. The Court, accordingly, finds it necessary first to identify the features and considerations which, in its view, may in varying degrees require to be evaluated in deciding upon the course of the boundary (or boundaries) in the Channel Islands region.

The Court will begin with the facts which determine the geographical and legal framework for its decision regarding the delimitation of this part of the boundary. The region forms an integral part of the English Channel and for the purpose of delimiting its continental shelf the region has clearly, in the opinion of the Court, to be viewed in its context as part of that whole maritime area. From its eastern end at the Straits or Dover, the English Channel stretches in a generally west-south-westerly direction for a distance of about 300 nautical miles, its width gradually widening from about 18 nautical miles at the Straits of Dover to some 100 nautical mile at its western end. Along the whole 300 miles of the south coast or the Channel runs the mainland coast of the French Republic; along the whole 300 miles or the north coast or the Channel runs the mainland coast of the United Kingdom. Each country has some promontories on its coast and the general result is that the coastlines or their mainlands face each other across the Channel in a relation of approximate equality.

Between opposite States a median line boundary will in normal circumstances leave broadly equal areas of continental shelf to each State and constitute a delimitation in accordance with equitable principles. It follows that where the coastlines of two opposite States are themselves approximately equal in their relation to the continental shelf not only should the boundary in normal circumstances be the median line but the areas of shelf left to each Party on either side of the median line should be broadly equal or at least broadly comparable. Clearly, if the Channel Islands did not exist, this is precisely how the delimitation or the boundary of the continental shelf in the English Channel would present itself.

The Channel Islands, however, do exist and are situated not only on the French side or a median line drawn between the two mainlands but practically within the arms of a gulf on the French coast. Inevitably, the presence of these islands in the English Channel in that particular situation disturbs the balance or the geographical circumstances which would otherwise exist between the Parties in this region as a result of the broad equality of the coastlines of their mainlands. The question then is whether and, if so, in what manner this affects the level framework within which the boundary has to be delimited in the Channel Islands region.

The case of the Channel Islands must, in the view of the Court, be differentiated from that of the rocks or small islands which figure in some of the precedents canvassed by the Parties in their pleadings. Possessing a considerable population and a substantial agricultural and commercial economy, they are clearly territorial and political units which have their own separate existence, and which are or a certain importance in their own right separately from the United Kingdom. According to the information before the Court, the two Bailiwicks of Jersey and Guernsey which compose the Channel Islands are not, constitutionally, part of the United Kingdom itself but direct dependencies of the British Crown, and have been so for several hundred years. According to this information, they undoubtedly enjoy a very large measure of political, legislative, administrative and economic autonomy; so much 'so that the United Kingdom asks the Court to regard them as, in effect, distinct island States for the purpose of determining the continental shelf appurtenant to them. Responsibility for the foreign relations or the Channel Islands indisputably rests with the United Kingdom; and the Court notes that tile Continental Shelf Convention of 1958 was ratified by the United Kingdom simply in its own name and on its own behalf, without separate mention of the Channel Islands. It also seems from the diplomatic correspondence and from the record of the meetings in the years 1970-1974 that the abortive negotiations between the two countries for an agreed delimitation or their continental shelf boundary were conducted by the United Kingdom without the participation of the Channel Islands authorities in its delegation. Similarly, the Court notes that the Arbitration Agreement itself was concluded by the Government of the United Kingdom in its own name alone without mention of the Channel Islands otherwise than in the definition in Article 2 of the question submitted to the Court. Furthermore, as the Court has pointed out in paragraph 172, the specific information given to the Court concerning the legal position or the Channel Islands in regard to maritime jurisdiction appears to confirm that, in matters relating to the continental shelf, it is the United Kingdom Government which is the responsible authority, both internally and externally. It follows that, as between the United Kingdom and the French Republic, the Court must treat the Channel Islands only as islands of the United Kingdom, not as semi-independent States entitled in their own right to their own continental shelf vis-à-vis the French Republic.

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23. THE COURT’S LEGAL FRAMEWORK, TAKING INTO ACCOUNT THE CHANNEL ISLANDS. The legal framework within which the Court must decide the course of the boundary (or boundaries) in the Channel Islands region is, therefore, that of two opposite States one or which possesses island territories close to the coast of the other State. To state this conclusion is not, however, to deny the relevance to the size and importance of the Channel Islands which, on the contrary, may properly be taken into account in balancing the equities in this region. Part also of this legal framework is the limits of the territorial seas and coastal fisheries of the French Republic and the United Kingdom in the Channel Islands region. The French Republic established a 12-mile zone of coastal fisheries off the coasts of France in 1964 in pursuance of die European Fisheries Convention of that year, and in 1971 also extended its zone of territorial seas to 12 miles. In 1964 the United Kingdom likewise established 12-mile fishery zones off the coasts both or the mainland and of the Channel Islands in conformity with the European Fisheries Convention; but it still retains a territorial sea of three miles. On the other hand, the United Kingdom took the position before the Court that coastal States today have a right under international law to extend their territorial set to 12 miles, and repeatedly referred in the pleadings to the possibility of its doing so. Consequently, the Court has to take account of the fact that, apart from their three-mile zone of territorial sea the Channel Islands have an existing fishery zone of 12 miles, expressly recognised by the French Republic, and the potentiality of an extension of their territorial sea from three to 12 miles.

Other elements in the framework arc the various equitable considerations invoked by the Parties regarding their respective navigational defence and security interests in the region. These considerations may be, and have been, urged by both Parties as supporting the solutions which they advocate: by the French Republic in favour of a continuous link between the eastern and western parts of its continental shelf in the Channel; and by the United Kingdom in favour of a continuous link between the continental shelf of the Channel Islands and that of the mainland. Moreover, the weight of such considerations in this region is, in any event, somewhat diminished by the very particular character of the English Channel as a major route or international maritime navigation serving ports outside the territories of either or the Parties. Consequently, they cannot be regarded by the Court as exercising a decisive influence on the delimitation of the boundary in the present case. They may support and strengthen, but they cannot negative, any conclusions that are already indicated by the geographical, political and legal circumstances of the region which the Court has identified. As to the conclusion to be drawn from those considerations in connexion with the delimitation of the continental shelf, the Court thinks it sufficient to say that, in its view, they tend to evidence the predominant interest of the French Republic in the southern areas of the English Channel, a predominance which is also strongly indicated by its position as a riparian State along the whole of the Channel's south coast.

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

mainland of France. In international law, as the United Kingdom emphasized in the pleadings, the concept of the continental shelf is a juridical concept which connotes the natural prolongation under the sea not of a continent or geographical land mass but or the land territory of each State. And the very fact that in international law the continental shelf is a juridical concept means that its scope and the conditions for its application are not determined exclusively by the physical facts of geography but also by legal rules. Moreover, it is clear both from the insertion of the. "special circumstances" provision in Article 6 and from the emphasis on "equitable principles" in customary law that the force of the cardinal principle or natural prolongation or territory" is not absolute, but may be subject to qualification in particular situations.

24. THE PRINCIPLE OF NATURAL PROLONGATION. Accordingly, in the opinion of the Court, the principle of natural prolongation of territory cannot be said to require that the continental shelf to the north and northwest of the Channel Islands should be considered as automatically and necessarily appurtenant to them rather than to the French Republic. The United Kingdom itself does not contest that in the application of the equidistance-special circumstances rule there may be some difference in the treatment of islands by reason of their geographical situations, size and importance. Nor, in particular, does it contest the possibility of pleading special circumstances justifying a boundary other than the median line where islets or small islands belonging to one country are nearer to the coast of an opposite country. Yet, if the force of the principle of natural prolongation of territory were absolute, a small island would block the natural prolongation of the territory of the nearby mainland in the same way, if not always to the same extent, as a larger island. The question of the appurtenance to the Channel Islands of the areas of continental shelf extending to their north and north-west is not therefore resolved merely by referring to the principle of natural prolongation of territory. The principle of natural prolongation of territory is neither to be set aside nor treated as absolute in a case where islands belonging to one State are situated on continental shelf which would otherwise constitute a natural prolongation of the territory of another State. The application of that principle in such a case, as in other cases concerning the delimitation of the continental shelf, has to be appreciated in the light of all the relevant geographical and other circumstances. When the question is whether areas of continental shelf, which geologically may be considered a natural prolongation of the territories of two States, appertain to one State rather than to the other, the legal rules constituting the juridical concept of the continental shelf take over and determine the question. Consequently, in these cases the effect to be given to the principle or natural prolongation or the coastal State's land territory is always dependent not only on the particular geographical and other circumstances but also on any relevant considerations of law and equity.

25. THE PRINCIPLES OF EQUITY. The legal rules to be applied in the Channel Islands region, the Court has held, are those or customary international law, rather than or Article 6 of the Convention. Under customary law, the method adopted for delimiting the boundary must, while applying the principle of natural prolongation of territory, also ensure that the resulting delimitation of the boundary accords with equitable principles. In other words, the question is whether the Channel Islands should be given the full benefit or the application or the principle of natural prolongation in the areas to their north and northwest or whether their situation close to the mainland of France requires, on equitable grounds, some modification of the application of the. principle in those areas. In the. opinion of the Court, the doctrine of the equality of States which, inter alia, the French Republic invokes as justifying a

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curtailment of the continental shelf attributable to the Channel Islands, cannot be considered as constituting such an equitable ground. The doctrine of the equality of States, applied generally to the delimitation of the continental shelf, would have vast implications for the division of the continental shelf among the States of the world, implications which have been rejected by a majority of States and which would involve, on a huge scale, that refashioning of geography repudiated in the North Sea Continental Shelf cases. Any ground of equity, the Court considers, is rather to be looked for in the particular circumstances of the present case and in the particular equality of the two States in their geographical relation to the continental shelf of the Channel.

The Court has already drawn attention to the approximate equality of the mainland coastlines of the Parties on either side of the English Channel, and to the resulting equality of their geographical relation to the continental shelf of the Channel, if the Channel Islands themselves are left out of account. The presence of these British islands close to the French coast, if they are given full effect in delimiting the continental shelf, will manifestly result in a substantial diminution or the area of continental shelf which would otherwise accrue to the French Republic. This fact by itself appears to the Court to be, prima facie, a circumstance creative of inequity and calling for a method of delimitation that in some measure redresses the inequity. If. this conclusion is tested by applying the equidistance-special circumstances rule of Article 6, instead of the rules of customary law, it appears to the Court that the presence of the Channel Islands close to the French coast must be considered, prima facie, as constituting a "special circumstance" justifying a delimitation other than the median line proposed by the United Kingdom.

The Court refers to the presence of the Channel Islands close to the French-coast as constituting a circumstance creative of inequity, and a "special circumstance" within the meaning of Article 6, merely prima facie, because a delimitation, to be "equitable" or "justified", must be so in relation to both Parties and in the light of all the relevant circumstances. The United Kingdom, moreover, maintains that the specific features of the Channel Islands region militate positively in favour of the delimitation it proposes. It invokes the particular character of the Channel Islands as not rocks or islets but populous islands of a certain political and economic importance; it emphasizes the close ties between the islands and the United Kingdom and the latter's responsibility for their defence and security; and it invokes these as calling for the continental shelf of the islands to be linked to that of the United Kingdom. Above all, it stresses that at best it is only in the open waters of the English Channel to their west and north that they have any possibility of an appreciable area of continental shelf. In the light of all these considerations, it submits that to divide this area to the west and north of the islands between the Channel Islands and the French Republic by the median line which it proposes does not involve any "disproportion or exaggeration."

26. THE FIRST DELIMITATION: THE MEDIAN LINE. In the actual circumstances of the Channel Islands region, where the extent of the continental shelf is comparatively modest and the scope for adjusting the equities correspondingly small, the Court considers that the situation demands a twofold solution. First, in order to maintain the appropriate balance between the two States in relation to the continental shelf as riparian States of the Channel with approximately equal coastlines, the Court decides that the primary boundary between them shall be a median line, linking the agreed eastern segment to the western agreed segment. In the light of the Court's previous

decisions regarding the course of the boundary in the English Channel, this means that throughout the whole length of the Channel comprised within the arbitration area the primary boundary of the continental shelf will be a mid-Channel median line. In delimiting its course in the Channel Islands region the Channel Islands themselves are to be disregarded, since their continental shelf must be the subject of a second and separate delimitation.

27. THE SECOND DELIMITATION: THE CONTINENTAL SHELF AREA AROUND THE CHANNEL ISLANDS. The second part of the solution is to delimit a second boundary establishing, vis-à-vis the Channel Islands, the southern limit of the continental shelf held by the Court to be appurtenant to the French Republic in this region to the south of the mid-Channel median line. This second boundary must not. in the opinion or the Court, be so drawn as to allow the continental shelf or the French Republic to encroach upon the established 12-mile fishery zone of the Channel Islands. -The Court therefore further decides that this boundary shall be drawn at a distance of 12 nautical miles from the established baselines of the territorial sea of the Channel Islands. The effect will be to accord to the French Republic a substantial band of continental shelf in mid-Channel which is continuous with its continental shelf to the cast and west of tile Channel Islands region; and at the same time to leave to the Channel Islands, to their north and to their west, a zone of seabed and subsoil extending 12 nautical miles from the baselines of the two Bailiwicks. The result, so far as the Channel Islands are concerned, is to enclose them in an enclave formed, to their north and west, by the boundary of the 12-mile zone just described by the Court and, to their east, south and south-west by the boundary between them and the coasts of Normandy and Brittany, the exact course of which it is outside the competence of the Court to specify.

28. THE ATLANTIC CONTINENTAL SHELF. The Court, as in the Channel Islands region, will begin by identifying the geographical and other features which establish the legal framework for its decision regarding the course of the continental shelf boundary in the Atlantic region. The essential continuity or the continental shelf of the English Channel and Atlantic region has already been emphasized repeatedly in the present Decision. It is also common ground between the Parties that, geologically the slight southwesterly trend of the continental shelf of the Channel extends westwards into the Atlantic region along the line of the faults referred to in the pleadings as the Hurd Deep Fault Zone. They are likewise agreed that, geologically, the island of Ushant forms an integral part of the land mass of France, and the Scilly Isles part of the and mass of the United Kingdom; and that in the western region of the Channel the coast of France, including the island of Ushant, and the coast of the United Kingdom, including the Scilly Isles, have the same south-westerly trend as the continental shelf of the Channel and the Atlantic region. In these various respects, therefore, the United Kingdom insistence that the Atlantic region may not be considered a separate sector of the arbitration area has a certain justification. Nevertheless, in the view or the Court, this region has characteristics which distinguish it geographically and legally from the region within the English Channel.

29. DISTINGUISHING CHARACTERISTICS OF THE ATLANTIC SHELF. The chief of these distinguishing characteristics consists in the fact that the continental shelf of the Atlantic region is not one confined within the arms of a comparatively' narrow channel but one extending seawards front the coasts of the two countries into the open spaces of the Atlantic Ocean. In consequence, the areas of continental shelf to be delimited,

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in the phrase used by the United Kingdom, lie off, rather than between, the coasts or the two countries. A further consequence is that the continental shelf across which the Court has to decide the course of the boundary extends to seawards of the coasts of the two countries for great distances. In fact, as already noted in paragraph II of this Decision, the distance from Ushant to the limit of the arbitration area at the 1,000-metre isobath, taken in a southwesterly direction, is of the order of 160 nautical miles; and the distance from the Scilly Isles, taken in the same general direction, is of the order of 180 nautical miles. Other distiguishing characteristics are that the actual coastlines of the two countries abutting on the continental shelf to be delimited are comparatively short; and that, although separated by some 100 miles of sea, their geographical relation to each other vis-à-vis the continental shelf to be delimited is one of lateral rather than opposite coasts,

30. SPECIAL CIRCUMSTANCE RULE. The pertinent dissimilarity between the two coasts, for the purpose of delimiting the boundary of their continental shelf, is rather the one invoked by the French Republic as a "special circumstance" calling for a boundary other than the equidistance line. This is the circumstance, not that the United Kingdom has no coastal frontage upon the Atlantic region, but that its coastal frontage projects further into the Atlantic than that of the French Republic. The greater projection of the United Kingdom coast into the Atlantic region is due in part to the fact that the most westerly point or its mainland is Situated almost one degree further to westward than that of the French mainland. But it is also due to the greater extension westwards of the Scilly Isles beyond the United Kingdom mainland than that of Ushant beyond the French mainland. Thus, at its nearest point, Ushant is only about 10 miles and at its most westerly point no more than 14.1 nautical miles from the coast of Finistere; the nearest point of the Scilly isles, on the other hand, is some 21 nautical miles and their most westerly point some 31 miles distant from Land's End. As a result, even when account is taken of the slight southwesterly trend of the English Channel, the further extension south-westwards of the United Kingdom's coast has a tendency to make it obtrude upon the continental shelf situated to seawards of the more westerly facing coast of the French Republic in that region.

An additional feature of the Atlantic region is the fact that the French Republic and the United Kingdom are not the only States which abut upon the continental shelf in the Atlantic westwards of France and the United Kingdom. The existence of the Spanish coast far to the south-west is not material in the present arbitration. But the possible impact of the claims of the Irish Republic in the north upon the areas of continental shelf accruing to the United Kingdom in the Atlantic region has been invoked by the latter and discussed by the French Government in the pleadings. Accordingly, the Court has necessarily taken cognizance of this feature or the Atlantic region although it does not itself consider that the abutting of the Irish Republic on the same continental shelf in the north affects its decision regarding the boundary between the United Kingdom and the French Republic in these proceedings.

31. THE LEGAL FRAMEWORK, TAKING INTO ACCOUNT THE ATLANTIC SHELF. What then is the legal framework for the delimitation of the boundary in the Atlantic region, having regard to the various features of the situation in the region to which the Court has drawn attention? The Court has already held both that Article 6 governs the delimitation in the Atlantic region and that there is no question of any casus omissus which does not fall within the scope of either paragraph 1 or paragraph 2 of the Article. The question, therefore, is whether it is paragraph 1, dealing with "opposite" States, or

paragraph 2, dealing with “adjacent" States, which is applicable. The rules of delimitation laid down in the two paragraphs of Article 6 are essentially the same. In the absence of agreement, and unless another boundary is justified by special circumstances, the boundary is to be the line which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. In paragraph I the line is designated "the median line every point of which is equidistant from the nearest points of the baselines" etc.; in paragraph 2 it is simply referred to as the boundary "determined by application of the principle of equidistance from the nearest points of the baselines" etc. But both the legal rule and the method or delimitation prescribed in. the two paragraphs are precisely the same. Consequently, there is nothing in the language of Article 6 to imply that in situations failing under paragraph I the virtues of the equidistance principle as a method of effecting an equitable delimitation are in any way superior to those which it possesses in situations-falling under paragraph 2. The emphasis placed in the North Sea Continental Shelf cases on the difference between the situations of "opposite" and "adjacent" States reflects not a difference in the legal regime applicable to the two situations but a difference in the geographical conditions in which the applicable legal regime operates.

The appropriateness of the equidistance or any other method for the purpose of effecting an equitable delimitation in any given case is always a function or reflection of the geographical and other relevant circumstances of the particular case. In a situation where the coasts of the two States are opposite each other, the median line will normally effect a broadly equal and equitable delimitation. But this is simply because of the geometrical effects or applying the equidistance principle to an area of continental shelf which, in fact, lies between coasts that, in fact, face each other across that continental shelf. In short, the equitable character of the delimitation results not from the legal designation of the situation as one of "opposite" States but from its actual geographical character as such. Similarly, in the case of "adjacent" States it is the lateral geographical relation of the two coasts, when combined with a large extension of the continental shelf seawards from those coasts, which makes individual geographical features on either coast more prone to render the geometrical effects of applying the equidistance principle inequitable than in the case of "opposite" States. The greater risk in these cases that the equidistance method may produce an inequitable delimitation thus also results not from the legal designation of the situation as one of "adjacent" States but from its actual geographical character as one involving laterally related coasts.

Clearly, there is considerable force in the contention, put forward by both Parties that, owing to the separation of the two coasts by a wide expanse of sea, the Situation in the Atlantic region cannot be categorized as, legally, a case of "adjacent" States governed by paragraph 2 of Article 6. If that view is accepted, it follows that the situation is to be considered as, legally, a case of "opposite" States and therefore one governed by paragraph I of that Article. It is, on the other hand, certain that in the Atlantic region the situation geographically is one of two laterally related coasts, abutting on the same continental shelf which extends from them a great distance seawards into the Atlantic Ocean. Indeed, the Court notes that so evident is this lateral relation of the two coasts, geographically, that both Parties in their pleadings saw some analogy between the situation in the Atlantic region and the situation of '.adjacent" States. Accordingly, whether the Atlantic region is considered, legally, to be a case of "opposite" States governed by paragraph 1 or a case of '.adjacent" States governed by paragraph 2 of Article 6, appreciation of the effects of any special geographical

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features on the equidistance line has to take account of those two geographical facts: the lateral relation of the two coasts and the great distance which the continental shelf extends seawards from those coasts.

32. THE “OPPOSITE STATES” RULE IS APPLICABLE. In so far as the point may be thought to have importance, the Court is inclined to the opinion that the Atlantic region falls within the terms of paragraph 1 rather than paragraph 2 of Article 6. As the United Kingdom emphasizes. there are a number of precedents in which equidistance boundaries between "opposite" States are prolonged seawards beyond the point where their coasts are geographically "opposite" each other; and the assumption seems to be that these are prolongations of median lines. Another view of the matter might be that, beyond the point where the coasts arc geographically opposite each other, the legal situation changes to one analogous to that of adjacent States. In certain geographical configurations, as was stated in the North Sea Continental Shelf cases in an observation recalled by the United Kingdom itself, "a given equidistance line may partake in varying degree of the nature both of a median and of a lateral line" (paragraph 6). But to fix the precise legal classification of the Atlantic region appears to this Court to be of little importance. The rules of delimitation prescribed in paragraph I and paragraph 2 are the same, and it is the actual geographical relation of the coasts of the two States which determine their application. What is important is that, in appreciating the appropriateness of the equidistance method as a means of effecting a "just" or "equitable" delimitation in the Atlantic region, the Court must have regard both to the lateral relation of the two coasts as they abut upon the continental shelf of the region and to the great distance seawards that this shelf extends from those coasts.

33. APPLICATION. The essential point, therefore, is to determine whether, in the actual geographical circumstances of the Atlantic region, the prolongation of the Scilly Isles some distance further westwards than the island of Ushant renders “unjust" or "inequitable" an equidistance boundary delimited from the baselines of the French and United Kingdom coasts. The effect of the presence of the Scilly Isles west-south-west of Cornwall is to deflect the equidistance line on a considerably more southwesterly course than would be the case if it were to be delimited from the baseline of the English mainland. The difference in the angle is 16'36'14'; and the extent or the additional area of shelf accruing to the United Kingdom, and correspondingly not accruing to the French Republic, in the Atlantic region eastwards or the 1,000 metre isobath is approximately 4,000 square miles. The mere fact, however, that the presence of the Scilly Isles in the position in which they lie has that effect, does not in itself suffice to justify a boundary other than an equidistance line delimited by reference to the Scillies. The question is whether, in the light of all the pertinent geographical circumstances, that fact amounts to an inequitable distortion of the equidistance line producing disproportionate effects on the areas of shelf accruing to the two States.

The projection of the Cornish peninsula and the Isles of Scilly further seawards into the Atlantic than the Brittany peninsula and the island of Ushant, is a geographical fact, a fact or nature; and, as was observed in the North Sea Continental Shelf cases, there is no question or equity "completely refashioning nature" or "totally refashioning geography" (Judgment, paragraph 91). It may also be urged that the very fact of the projection of the United Kingdom land mass further into the Atlantic region has the natural consequence of rendering greater areas of continental shelf appurtenant to it. Nevertheless, when account is taken of the fact that in other

respects the two States abut on the same continental shelf with coasts not markedly different in extent and broadly similar in their relation to that shelf, a question arises as to whether giving full effect to the Scilly Isles in delimiting an equidistance boundary out to the 1,000-metre isobath may not distort the boundary and have disproportionate effects as between the two States. In the view of the Court, the further projection westwards of the Scilly lsles, when superadded to the greater projection of the Cornish mainland westwards beyond Finistere, is much of the same nature for present purposes, and has much the same tendency to distortion of the equidistance line, as the projection of an exceptionally long promontory, which is generally recognized to be one of the potential forms of "special circumstance". In the present instance, the Court considers that the additional projection of the Scilly Isles into the Atlantic region does constitute an element of distortion which is material enough to justify the delimitation of a boundary other than the strict median line envisaged in Article 6, paragraph 1, of the Convention.

The Court thus recognizes that the position of the Scilly Isles west-south-west of the Cornish peninsula constitutes a "special circumstance" justifying a boundary other than the strict median line. It does not, however, consider that the existence of this "special circumstance" in the Atlantic region gives it carte blanche to employ any method that it chooses in order to effect an equitable delimitation of the continental shelf The French Republic, it is true, has impressed upon this Court certain observations in the Judgment in the North Sea Continental Shelf cases to the effect that, in order to achieve an equitable solution, "it is necessary to seek, not one method of delimitation but one goal" (paragraph 92), and that "there is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures" (paragraph 93). But in those cases the Parties had retained the actual delimitation of the boundary in their own hands for further negotiation in the light of the principles and rules to be stated by the International Court of Justice; and in any event the observations invoked by the French Republic have to be read in the light of certain other observations of the International Court in the same Judgment. In these other observations, it was stressed that any recourse to equitable considerations must be to considerations "lying not outside but within the rules" of law, and that there is no question of any decision ex aequo et bono (paragraph 88); and, as already noted, it was also stressed that "there can never be any question of completely refashioning nature" (paragraph 91). Furthermore, at the outset of the Judgment it was underlined that delimitation of the continental shelf is rot a process of dividing it up into equitable "shares" but or delimiting a boundary in areas which, in principle, are already appurtenant to one or other State; and that the notion of "the just and equitable share" is wholly at variance with the fundamental principle that the continental shelf appertains to the coastal State as the natural prolongation of its land territory (paragraphs 18-20).

The Court, for the above reasons, finds itself unable to accept the prolongations of the general directions of the Channel coasts of the two countries as a relevant basis for determining the course of the boundary ill the Atlantic region. It need not, therefore, explore the further difficulties which the application of that method would involve in determining the precise lines that should be considered as the appropriate representation of the general directions of the two coasts.

The Court considers that the method of delimitation which it adopts for the Atlantic region must be one that has relation to the coasts of the Parties actually abutting on the continental shelf of that region. Essentially, these are the coasts of

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Finistere and Ushant on the French side and the coasts of Cornwall and the Scilly Isles on the United Kingdom side. The island of Ushant not only forms part, geologically, of the land mass of France but lies no more than ten nautical miles from the French coast within the territorial sea of the French mainland. Indeed, the island forms one of the links in the system of straight baselines along the French coast established by the French Republic in 1964. The Scilly Isles likewise form part of the land mass of the United Kingdom and, although some 21 miles distant from tile mainland, they are unquestionably islands offshore of the United Kingdom which, both geographically and politically, form part of its territory. In fact, the existing 12-mile fishery zones of the mainland and of the Scilly Isles merge into one and, if the United Kingdom exercises the right which it claims to establish a 12-mile territorial sea, the same will be the case with their territorial sea. Both Ushant and the Scilly Isles are, moreover, islands of a certain size and populated; and, in the view of the Court, they both constitute natural geographical facts. of the Atlantic region which cannot be disregarded in delimiting the continental shelf boundary without .'refashioning geography". The problem therefore is, without disregarding Ushant and the Scillies, to find a method of remedying in an appropriate measure the distorting effect on the course or the boundary of the more westerly position of the Scillies and the disproportion which it produces in the areas of continental shelf accruing to the French Republic and the United Kingdom.

34. MODIFICATION, RATHER THAN REJECTION, OF THE EQUIDISTANCE PRINCIPLE. The Court notes that in a large proportion of the delimitations known to it, where a particular geographical feature has influenced the course or a continental shelf boundary, the method of delimitation adopted has been some modification or variant of the equidistance principle rather than its total rejection. In the present instance, the problem also arises precisely from the distorting effect of a geographical feature in circumstances in which the line equidistant from the coasts of the two States would otherwise constitute the appropriate boundary. Consequently, it seems to the Court to be in accord not only with the legal rules governing the continental shelf but also with State practice to seek the solution in a method modifying or varying the equidistance method rather than to have recourse to a wholly different criterion of delimitation. The appropriate method, in the opinion of the Court, is to take account of the Scilly Isles as part of the coastline of the United Kingdom but to give them less than their full effect in applying the equidistance method. Just as it is not the function or equity in the delimitation of the continental shelf completely to refashion geography, so it is also not the function of equity to create a situation of complete equity where nature and geography have established an inequity. Equity does not, therefore, call for coasts, the relation of which to the continental shelf is not equal, to be treated as having completely equal effects. What equity calls for is an appropriate abatement of the disproportionate effect of a considerable projection oil to the Atlantic continental shelf of a somewhat attenuated portion of the coast of the United Kingdom.

The abatement of these disproportionate effects, as previously indicated in paragraph 27, does not entail any nice calculations of proportionality in regard to the total areas of continental shelf accruing to the Parties in the Atlantic region. This is because, as pointed out in paragraphs 99-101, the element of "proportionality" in the delimitation of the continental shelf does not relate to the total partition of the area or shelf among the coastal States concerned, its role being rather that of a criterion to assess the distorting effects of particular geographical features and the extent of the resulting inequity. In the present instance, "proportionality" comes into account only in appreciating whether the Scilly Isles are to be considered a "special circumstance"

having distorting effects on the equidistance boundary as between the French Republic and the United Kingdom and, if so, the extent of the adjustment appropriate to abate the inequity. These questions do not therefore require nice calculations of the areas of continental shelf appertaining to the United Kingdom in the north under a prospective delimitation of its continental shelf boundary with the Irish Republic. The point here at issue is simply whether the geographical situation or the Scilly Isles in relation to the French coast has a distorting effect and is a cause of inequity as between the United Kingdom and the French Republic.

A number of examples are to be found in State practice of delimitations in which only partial effect has been given to offshore islands situated outside the territorial sea of the mainland. The method adopted has varied in response to the varying geographical and other circumstances or the particular cases; but in one instance, at least, the method employed was to give half, instead of full, effect to the offshore island in delimiting the equidistance line. Tile method of giving half effect consists in delimiting the line equidistant between the two coasts, first, without the use of the offshore island as a base-point, and, secondly, with its use as a base-point; a boundary giving half-effect to the island is then the line drawn midway between those two equidistance lines. This method appears to the Court to be an appropriate and practical method of abating the disproportion and inequity which otherwise results from giving full effect to the Scilly Isles as a basepoint for determining the course of the boundary. The distance that the Scilly Isles extend the coastline or the mainland of the United Kingdom westwards onto the Atlantic continental shelf is slightly more than twice the distance that Ushant extends westwards the coastline of the French mainland, The Court, without attributing any special force as a criterion to this ratio of the difference in the distance or the Scillies and Ushant from their respective mainlands, finds in it an indication of the suitability of the half-effect method as a means of arriving at an equitable delimitation in the present case. The function of equity, as previously stated, is not to produce absolute equality of treatment, but an appropriate abatement of the inequitable effects of the distorting geographical feature. In the particular circumstances of the present case the half-effect method will serve to achieve such an abatement of the inequity. At the same time, the Court notes that the boundary resulting from the use of this method will follow the slight- southwesterly trend of the coastlines of the Parties and of the continental shelf in the region.

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