1985 Libya/Malta Continental Shelf Case Analysis - Research Paper Example

1985 Libya/Malta Continental Shelf Case (International Court of Justice) Introduction The International Court of Justice (ICJ) was approached by the two bordering countries of Socialist People’s Libyan Arab Jamahiriya (Libya) and the Republic of Malta for the delimitation of their continental shelf situated between their countries’ maritime boundaries on the Mediterranean Sea. The reference to the ICJ was sequel to a Special Agreement between the Governments of the said countries/States as their respective claims over the Continental shelf were irreconcilable. While Libya claimed that the Court might only lay down the principles to be applied for delimitation, Malta insisted that the Court be pleased to actually demarcate the boundaries according to equitable principles by taking into account all the relevant circumstances. While considering the parties’ prayers, the Court had to pass its judgement (Continental Shelf, 1985) by 14 /3 votes after examining the various principles and factors involved. How the Court responded to the parties’ respective claims and how a compromise (Court’s finding of a middle ground) was arrived at shall be seen hereunder. Brief history Malta has both inhabited and uninhabited islands lying approximately 183 nautical miles north of Libya and 43 nautical miles South of Sicily. While Malta’s claim was that delimitation line should be at an equal distance between the States, Libya’s claim was that the rift zone or the deep canyon lying near the coast of Malta should be taken as the natural boundary and serve as the delimitation line separating the continental shelves between the States. However, the Court informed that the Special Agreement (1976) between the parties determined its jurisdiction besides the competing claims of Italy which was not a party to the dispute. What the Special Agreement had stipulated was to require the Court on declaring the principles of law that applied to the dispute and how they should be applied. The agreement provided for drawing of the actual line by the parties themselves after the Court’s findings. A fact that cannot be ignored is the attempt of Italy to intervene in the dispute which the Court did not entertain by a separate judgement. (ICJ, 1984) which actually followed a precedent in which Malta’s application to intervene in Libya and Tunisia dispute was denied by the Court (ICJ, 1981). The Court proceeded with the present case after expressing its view that the law applicable was customary international law which enjoined that delimitation should be guided by equitable principles after considering all relevant circumstances. This was based on the position that there were no treaties as such binding on the parties. The 1982 United Nations Convention on the Law of the Sea (1982) has actually envisaged that delimitation should be on equitable basis though it has not stipulated the method to be followed. Though the convention had not come into force at the time, both the parties were signatories to it among the many other States who had signed it thus according the convention an overwhelming majority. Therefore, Libya’s stand of applicability of natural prolongation of the underlying land as the basis for its title to the continental shelf was rejected. The Court expressed the view that relevancy of geographical features could apply where the separation was more than 400 miles. In the instant case, the distance was hardly 200 nautical miles and geographical features could not be treated as relevant. Therefore, the Court agreed with Malta’s contention that the concept of economic zone envisaged in the customary international law that natural prolongation was to be counted by distance from the shore instead of counting it from physical form intervening seabed named by Libya as rift zone. The Court had already rejected Libya’s claim in Tunisia/Libyan case of 1982 that rift zone which is closer to Malta than to Libya formed a physical discontinuity between the two States of Malta and Libya and that it should serve as a legal discontinuity also. The claim of the rift zone which Libya characterized as a tectonic plate boundary between the States was rejected by the Court as there was no evidence to prove or disprove Libya’s claim and therefore it suffered from legal infirmity (Leigh, 1985). Thus, the Court proceeded with the delimitation process based on provisional median lines between two coasts of the two countries of Libya and Malta. If median line was adjusted by disregarding the base line running into Malta’s uninhabited island/rock. This followed the Court’s final adjustment of the northward line towards Malta in view of the fact that Malta’s feature was of little significance to central Mediterranean and also the large (Leigh,1985) “disparity between the lengths of Libyan and Maltese coast lines” (Leigh,1985). In order to arrive at this, the Court ensured that the line was not shorter than the similar line applicable to Libya and Italy. The Court took this stand by drawing an imaginary line between Libya and Italy disregarding the presence of Malta. In the absence of Malta, delimitation line should be on the south of the line applicable Italy and Libya median line. (Leigh, 1985) “ It reasoned that Malta, as an independent State, and not just a part of Italy, must have some rights to the continental shelf over and above those Italy could assert” (Leigh, 1985). With this, the Court held that the final line should be at about latitude 34 ° 12’ north between the median line falling between Libya and Malta. It also ruled that the median line between Libya and Sicily should be at a latitude 34 ° 36 ‘north. As there was sufficient space of some 195 minutes of latitude between the two coasts which allowed for moving the median line without compromising on the security of any State or deviating from the approximate middle, the Court justified the adjustment of line by three-quarters of distance northward i.e approximately 34 ° 30’ north latitude. , would result in equitable remedy under all possible situations. However, Court did not give justification for moving the line three-quarters of the way north (Leigh, 1985). However, three judges differed and gave three different opinions. In the first place they did not welcome the idea of limiting the scope by Italy’s claim. Mosler J, Stated that Court should not have defined without mentioning the particular areas of the central Mediterranean as subject to delimitation. He rather suggested that a line equidistant between the two States should be the line of delimitation. He reasoned that the disparity between the coastal line distance would result in similar disparity of the seabed within the median line. He also did not agree to the Court’s northern transposition of the median line by virtue of Malta’s geographic location in the region (Leigh, 1985) Oda, J flawed the Court’s application of proportionality and not defining the areas in the process. He suggested to apply the rule of equidistance which resulted in a delimitation line in equidistance between the opposing States. He said that any modification of the median line could be justified only under “demonstrable special circumstances” (Leigh, 1985). He cited an arbitral decision of 1977 wherein “half effect” of an island was advocated in a dispute between France and the United Kingdom in connection with the delimitation of seabed under the English Channel. In that case, partial effect was allowed to draw an equidistance line for one of the parties’ tiny part. Judge Oda said that in the instant case partial effect was given to the entire sovereignty of Malta treating it as a tiny part of larger whole (Leigh, 1985) He also recalled that equidistance/special circumstances principle was already incorporated in the 1958 Geneva Convention on the Continental Shelf and the 1977 Anglo French arbitration and in the proceedings for the 1982 Convention on the Law of the Sea (Leigh, 1985). Malta’s uninhabited rock was the only justifiable special circumstance according to him. He also rejected the idea of Italy‘s claim being considered in arriving at the present judgment. The third differing judge Schwebel also did not agree to northward adjustment of the median line as the Court’s rationale had no support and did not result in a consistency (Leigh, 1985). It may be relevant to discuss the principles involved for better appreciation of the case. Equitable principles In the agreement, the parties had submitted to the delimitation on equitable principles. Some equitable principles identified by the Court in paras 45-47 were , desisting from refashioning of geography, refraining from encroachment of areas by one party on another, the respect accorded to all the relevant circumstances and the last but not the least, “equity does not necessarily imply equality” without literally harping on distributive justice (Judgement summary). The relevant circumstances Paras 48-54 deal with the relevant circumstances. Court has to give due regard to all the relevant circumstances list of which is not a closed one. The Court adds that those circumstances are confined to the development of law relating to the institution of continental shelf and application of equitable principles. As such, the Libya’s contention that land mass in greater proportion would be synonymous with more natural prolongation under the sea is untenable. The Court cannot also accord recognition to Malta’s contentions either, that the delimitation should be dictated by the economic exigencies of the States concerned. As for the security interests of the parties to the dispute, the Court has ensured that the delimitation would not be anywhere nearer the coast of either party. The treatment of islands in the continental shelf delimitation claimed by Malta by distinguishing island States from islands politically linked to the mainland State has been viewed by the Court as not tenable since Malta is an independent State. The Court also has not agreed with Malta that sovereign equality of States should be of equal juridical value regardless of the respective coast’s length (Judgment Summary). It has been stated “The Court considers that if coastal States have an equal entitlement, ipso jure and ab initio, to their continental shelves, this does not imply an equality in the extent of these shelves, and thus reference to the length of coasts as a relevant consideration cannot be excluded a priori” (Summary Judgment). Proportionality The court acknowledges that Libya has ascribed serious concern to the proportionality factor. Jurisprudence dictates that proportionality is a relevant factor to be considered though for the purpose of delimitation or as a source of rights for continental shelf, proportionately has not been stated as one of the principles and rules of international law. Libya’s argument which goes further by saying that its rift-zone is a matter of proportionality having been dismissed by the court, there is no other factor of proportionality remaining. The ratio of coastal lengths goes beyond the concept of proportionality as a test for equity as claimed in the case of Continental Shelf (Tunisia/Libyan Arab Jamahiriya) as opined by the Court (Judgment summary). The test of proportionality Though it may be relevant to consider the proportionality with reference to the respective coastal lengths, this particular case involves claim by third States and hence it would not be realistic to apply the test of proportionality. “There may be practical difficulties which render this test inappropriate” (Judgment Summary). The operative provisions of the Court’s judgment are as follows. A The principles and rules of international law on delimitation; 1. The delimitation should be guided by the equitable principles having regard to all the relevant circumstances for the purpose of reaching an equitable result. 2. Natural prolongation does not apply for delimitation of shelf areas which do not extend more than 200 miles from the respective coasts of the parties. B The following factors are relevant for arriving at an equitable delimitation in the instant case. 1 The coasts of the parties and their configuration, their locations such as oppositeness and their interrelated nature. 2 The disproportionate lengths of the relative coastal lines of the parties and the actual distance between the coasts. 3 Excessive disproportion in the continental shelves of the respective areas should be avoided for the purpose of determining delimitation (Judgement Summary). 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” (Judgment Summary). D The transposition of the meridian line mentioned in C above should be northwards and through eighteen minutes of latitude. This will result in intersection of the meridian 15 ° 10 ‘E at latitude 34 ° 30 ‘N. The resulting line becomes the delimitation line between the continental shelf of the respective parties (Judgment Summary). It may be relevant to revisit what the court has said about the claim of the continental shelf a State can make. The law has developed so as to enable a State to claim a continental shelf area to the extent of 200 miles from its coast regardless of geographical characteristics of the relative sea-bed and subsoil. As such, such limitations cannot stand in the way of verification of the legal title of the respective States or in the determination of delimitation (Lathrop, n.d). “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” (Lathrop, no date). Brown (1988) states that this is an important judgment though he has done only a partial analysis. The ICJ’s judgments in respect of North Sea Continetal Shelf Cases have only resulted in controversies as the judgments have insisted on the distinction “ between the rules international customary law and treaty law on the outer limit of the continental shelf and its delimitation between the neighboring States” (Brown, 1988 p 17). The ICJ’s judgment in Libya/Malta case contains some dicta that are useful though route by which they have been reached maybe controversial. He welcomes the Libya/Malta judgment mainly for its contribution towards restoring the “identity of meaning between customary and conventional rules” As a result, the concept of exclusive 200-mile exclusive economic zone (EEZ) has become an accepted feature of the international customary law. Further, in customary and U.N. Conventional forms, it extends ratione mateiae in its fold the continental shelf resources. As one would expect, the Court has recognized that entitlement for EEZ is a necessary corollary for an automatic entitlement of continental shelf of 200 miles. This is however without prejudice to the geographical viability and to the rules of delimitation with the adjoining states. The court’s ruling on the geological or geomorphological factors are not relevant where distance between the States’ coastal line is less than 400 miles is also a welcome feature. Brown (1988) however criticizes the judgments on the following reasoning. (1)The correctness of court’s finding in the Italian intervention case is highly doubtful. (2) The major role allocated for equitable principles for delimitation cases is however not consistent with the history behind drafting of Article 83(1) of the U.N. Convention. (3) The court’s stand on natural prolongation has been under open criticism. Why the court is reluctant to abandon its view on natural prolongation is not understandable. (Brown, 1988) “Its retention “as more and more a complex juridical concept” which “is in part defined by the distance from the shore, irrespective of the physical nature of the intervening sea-bed and subsoil” is distinctly “unnatural” (Brown 1988, p 18). (4) The Court’s decision not to accept the concept of equidistance any longer is however qualified by the existence of “impressive evidence”. Hence with sufficient evidence, the equidistance method would be relevant. (5) The Court’s practical method of following a modified equidistance line though welcome, the manner and degree in which modification was made in the present case was “ idiosyncratic as it was unpredictable “ (Brown,1988 p 18). Conclusion Brown (1988) admits, however, the task of delimitation by undoing the inequity can never be performed with precision or can a formula be prescribed. Hence it is a matter of evaluation and judgment so as to give due weightage to the special circumstances prevailing. He therefore concludes that one should sympathize with the Court’s delicate position and the manner in which the reasoning in the present case has been arrived at. Works cited 1982 United Nations Convention on the Law of the Sea, United Nations Pub Sales No E 83, V.5 cited in cited in Cited in Leigh Monroe, “Case Concerning the Continental Shelf “(Libyan Arab Jamahiriya/Malta). 1985 ICJ rep. 13 Published by American Society of International Law, www.jstor.org/stable/2201783 accessed 08/11/2010 Web. Brown E.D, The Libya-Malta Continental Shelf Case (1985) cited in Schwarzenberger Georg, Cheng Bin and Duncan Brown Edward, Contemporary problems of international law: essays in honour of Georg Schwarzenberger on his eightieth birthday 1988 Taylor & Francis Continental Shelf (Libyan Arab Jarnahiriya/Malta), Judgment, I. C.J. Reports 1985, p. 13. ICJ 1981, Continental Shelf (Tunisia/Libyan Arab Jamahiriya). Application to Intervene, 1981 ICJ REP 3 (Judgment of April, 14) cited in Cited in Leigh Monroe, “Case Concerning the Continental Shelf “(Libyan Arab Jamahiriya/Malta). 1985 ICJ rep. 13 Published by American Society of International Law, www.jstor.org/stable/2201783 accessed 08/11/2010 Web. ICJ 1984 ICJ Rep 3, 25 (Judgment of March,21) Cited in cited in Cited in Leigh Monroe, “Case Concerning the Continental Shelf “ (Libyan Arab Jamahiriya/Malta). 1985 ICJ rep. 13 Published by American Society of International Law, www.jstor.org/stable/2201783 accessed 08/11/2010 Web. Leigh Monroe, “Case Concerning the Continental Shelf “(Libyan Arab Jamahiriya/Malta). 1985 ICJ rep. 13 Published by American Society of International Law, www.jstor.org/stable/2201783 accessed 08/11/2010 Web. Judgment summary, Case concerning the continental shelf (Libyan Arab Jamahiriya/Malta) Judgment of 3 June 1985. International Court of Justice < http://www.icj-cij.org/docket/index.php?sum=353&code=lm&p1=3&p2=3&case=68&k=a8&p3=5> accessed 08/11/2010. Web Lathrop Coalter G, (no date). “Continental Shelf (Libya/Malta), 1985 I.C.J. 13 (June 3).” Sovereign Geographic Inc. Web. Special Agreement for Submission to the International Court of Justice of a Continetal Shelf Dispute, May 23, 1976 reprinted in ILM 971,972 (1982); see also 1985 ICJ REP. 13, 16. Cited in Leigh Monroe, “Case Concerning the Continental Shelf “(Libyan Arab Jamahiriya/Malta). 1985 ICJ rep. 13 Published by American Society of International Law, www.jstor.org/stable/2201783 accessed 08/11/2010 Web. Read More