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DISSENTING OPINION OF JUDGE EVENSEN

1. To my deep regret, I find myself unable to share the views of the
Court on the practical method laid down in the Judgment for determining
the line of delimitation for the area of the continental shelf appertaining to
each of the two Parties, or the reasons provided therefor in the Judgment.
My regrets are sincere because of the overwhelming respect I feel for the
International Court of Justice and for its predecessor, the Permanent
Court of: International Justice, as international institutions whose very
existence and whose patient work have given justified hopes to a turbulent
world that justice can be found and peace be built, not upon arms and
wanton sacrifice of human lives, but on the painstaking development of a
new international order based on the Rule of Law. Likewise, my dissenting
opinion in no way affects the deep and sincere respect I have for the Court,
comprised as it is of illustrious internationalists who, through their un-
tiring work, have enhanced the Court’s role and impact as a conflict-
solving international organ of the highest order. I also realize the impor-
tance of the present case and my inadequacies when presenting a dissent-
ing opinion, acting as an ad hoc Judge in the present case.

2. The Court’s jurisdiction in this case derives from the Special Agree-
ment (Compromis) of 10 June 1977. (See Statute, Art. 36, para. 1.) The
main provisions regarding the Court’s jurisdiction are contained in
Article 1 of the Special Agreement.

There are certain minor discrepancies between the Parties in the trans-
lations from the original Arabic. These discrepancies to some extent
reflected the divergence of views between them as to the competence
entrusted to the Court by the Special Agreement. But as appears from the
Judgment, these discrepancies have not been of significance as to the
Court’s interpretation of its competence. I share this view.

I likewise share the view that in the present case, the task of the Court as
defined in Article 1 of the Special Agreement of 10 June 1977 differs from
that entrusted to the International Court of Justice in the North Sea
Continental Shelf cases by Special Agreement of 2 February 1967 and that
entrusted to the Court of Arbitration in the Delimitation of the Conti-
nental Shelf case by the Arbitration Agreement of 10 July 1975, between
France and the United Kingdom.

Under Article 1 of the present Special Agreement the International
Court of Justice is “requested to render its judgment” with regard to what
principles and rules of international law may be applied for the delimita-
tion of the respective continental shelf areas of the Parties. The starting
point is of course that it is for the Court to decide what are the “principles

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and rules of international law” applicable to the present case according to
Article 38, paragraph 1, of the Statute of the Court, taking into consider-
ation the provisions of the Special Agreement concluded between the
Parties. In laying down the principles and rules of international law ap-
plicable to the delimitation of the areas concerned the Court is requested
“to take its decision according to” :

(a) equitable principles ;

(b) the relevant circumstances which characterize the area ;

(c) the new accepted trends in the Third Conference on the Law of the Sea
(Art. 1, para. 1).

I share the view of the Court that these provisions may have a bearing on
the sources of law available to the Court in the present case ; and likewise
the observation by the Court that the reference to these factors in Article 1
may affect the legal relations of the Parties in the present case only, but
cannot affect the position in law of other States.

However, I beg to differ somewhat with the Court with regard to what
specific elements may be relevant in this connection ; the relative weight to
be given to these elements and the relative weight and importance thereof
measuring the one vis-à-vis the other. J shall revert to these questions.

Paragraph 2 of Article 1 has likewise considerable bearing on the task
entrusted to the Court. It provides that “Also the Court is further
requested” :

(a) to clarify the practical method for the application of the above-men-
tioned principles and rules ;

{b) to do so in relation to the specific situation ;

(c) to do so, so as to enable the experts of the two countries to delimit these
areas without any difficulties.

I share the view of the Court that clearly the Court’s task is to render a
binding and final

“judgment in a contentious case in accordance with Articles 59 and 60
of the Statute and Article 94, paragraph 2, of the Rules of Court, a
judgment which will have therefore the effect and the force attributed
to it under Article 94 of the Charter of the United Nations and the
said provisions of the Statute and the Rules of Court” (Judgment,
para. 29).

Of course the Court has not been asked to render an advisory opinion, as it
could not be asked to do so, in the present contentious case between two
States. Nor could it agree in any other way solely to give “guidance” to the
Parties to the present dispute which would lack the essential elements of a
formal judgment (UN Charter, Art. 96).

I share the view that the Court in its Judgment should lay down the

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practical method for the application of the principles and rules of inter-
national law with the degree of precision applied by the Court in the
operative part thereof. I further share the view that in concluding a
treaty according to Articles 2 and 3 of the Special Agreement for the pur-
pose of implementing the Judgment the negotiations of the Parties will
be of a limited and technical nature providing in treaty form for the
concrete line of delimitation drawn up by the experts of the two Parties.
This must be done in compliance with the practical method for the appli-
cation of the principles and rules of international law laid down in the
Judgment.

3. I now revert to the provisions of Article 1, paragraph 1, of the Special
Agreement wherein the Court is called upon in rendering its decision based
on principles and rules of international law to take account of :

(a) equitable principles ;

(b) the relevant circumstances which characterize the area ; and

(c) the recent trends admitted by the Third Conference on the Law of the
Sea.

Obviously this enumeration does not convey authority to the Court to
decide ex aequo et bono under Article 38, paragraph 2, of the Statute of the
Court.

A further question is whether this enumeration in Article 1 changes,
enlarges or restricts the sources of international law available to the Court
in this case.

4. Re (a): The reference to equitable principles follows from already
established concepts of the applicable sources of international law. It is of
importance that the Parties are in agreement on this point. However, they
seem to disagree what these equitable principles are, and the concrete legal
consequences to be drawn from this reference.

The express reference to equitable principles in the Agreement may to
some extent have been inspired by the provisions contained in the Third
Conference on the Law of the Sea: draft convention (Informal Text),
document A/CONF.62/WP.10/Rev.3 of 27 August 1980. This draft text
had identical provisions in Article 74 for Exclusive Economic Zones and
Article 83 for the continental shelf with regard to delimitation of these
zones between States with opposite or adjacent coasts. Paragraph 1 pro-
vided :

“The delimitation of the continental shelf [the exclusive economic
zone] between States with opposite or adjacent coasts shall be effected
by agreement in conformity with international law. Such an agree-
ment shall be in accordance with equitable principles, employing the
median or equidistance line, where appropriate, and taking account of
all circumstances prevailing in the area concerned.”

These formulations were amended during last year’s session of the

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Conference. The draft convention on the Law of the Sea of 28 August 1981
(doc. A/CONF.62/L.78), Articles 74 and 83, now provides :

“The delimitation of the continental shelf [the exclusive economic
zone] 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.”

This new text was suggested as a compromise in order to satisfy two
group factions in the Conference. It may have some merits in fulfilling this
aim since it makes no reference either to the equidistance principle or to the
equity principle. The new twist is the general reference to Article 38 of the
Statute and the provisions to the effect that the delimitation must result in
“an equitable solution”. It has not been discussed in detail in the Con-
ference.

5. Re(b) : The express reference in Article 1, paragraph 1, of the Special
Agreement to the relevant circumstances which characterize the area is of
course

“in complete harmony with thejurisprudence of the Court, as appears
from its Judgment in the North Sea Continental Shelf cases, in which it
held that international law required delimitation to be effected ‘in
accordance with equitable principles and taking account of all the
relevant circumstances’ ” (Judgment, para. 23).

It seems obvious that in drawing up lines of delimitation between the
respective continental shelves (and 200-mile economic zones), of neigh-
bouring countries, the relevant circumstances in the region concerned must
play an important role.

But the express reference to “the relevant circumstances which charac-
terize the area” in Article 1, paragraph 1, of the Special Agreement is not
without significance. The Parties to the litigation have expressly agreed as
to the relevancy of this element. This demonstrates the importance which
the Parties attach to these regional circumstances, which again must give
an added impetus to the Court to give them due consideration. The con-
cern of the Parties in this respect is evident also from the repeated reference
thereto in Article 1, paragraph 2, of the Special Agreement in connection
with the request to the Court to clarify the practical method for the appli-
cation of the international law principles “in this specific situation”.

It seems futile to attempt to give an exhaustive analysis of all the relevant
circumstances which characterize the area. It must obviously include the
directions of the coasts concerned ; whether they are straight or curved or
otherwise regular or irregular ; whether they are in opposite directions in
the sense that prolongations of the shelves and exclusive economic zones
seaward would lead to collisions between competing claims for such
shelves or zones ; the presence of sinuosities, bays, islands, drying shoals or
rocks, etc. The water depths of the areas concerned could play a role. The

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geographical features of the coasts and marine extensions thereof, includ-
ing bathymetry, geomorphology, etc., all these elements are by their nature
relevant circumstances that characterize the area. The above-mentioned
formulations are not confined to geographic aspects. Both Parties have
relied heavily on the geology of the area, not only of the upper layers
thereof but in great detail, deeper lying strata almost down and back to the
creation.

As to the forebears of these provisions in the Special Agreement, men-
tion may be made of the references to special circumstances which were
included in Article 6, paragraphs 1 and 2, of the Geneva Convention on the
Continental Shelf of 29 April 1958, although here the principle was closely
connected with the equidistance/ median line principle. In the operative
paragraph (para. 101) of the Judgment of the Court in the North Sea
Continental Shelf cases of 1969, the Court held that delimitation of the
continental shelves concerned “is to be effected by agreement in accor-
dance with equitable principles, and taking account of all the relevant
circumstances...” ULC.J. Reports 1969, p. 53) (emphasis added). Among
the factors to be taken into account were, according to that Judgment, inter
alia, the general configuration of the coasts of the Parties as well as the
presence of any special or unusual feature.

As hereinbefore mentioned, Articles 83 and 74 of the draft convention
on the Law of the Sea dated 29 August 1981 (doc. A/CONF.62/L.78)
contain a broad reference to Article 38 of the Statute of the Court, but no
longer any express reference to “all circumstances prevailing in the area
concerned”. But the purpose was not to weaken the importance of the
circumstances prevailing in the area for the concrete delimitation.

6. Re fc) : The third group of elements expressly mentioned in Article 1,
paragraph 1, of the Special Agreement is “the new accepted trends in the
Third United Nations Law of the Sea Conference”.

The draft convention has not yet been adopted as the final text by the
Law of the Sea Conference. It is by virtue of the Special Agreement that the
Court is authorized to take into account trends which — although having
reached an advanced stage of the process of elaboration, even a stage where
such trends to a considerable extent have been included in the practice of
States — have not yet attained the force of general international law.
Certain of the recent trends in the draft convention may have acquired
such status. Owing to the express provisions in Article 1, paragraph 1, of
the Special Agreement, it is neither necessary nor appropriate in the
present case to make a distinction between accepted trends and recent
developments of law due to the activities of the Third Law of the Sea
Conference and the ensuing practice of States.

The reference in the Special Agreement to new accepted trends in the
Third Law of the Sea Conference may obviously create certain difficulties
with regard to its meaning and application to the present case. What

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proposals in the draft convention should be considered as “trends” ? Are
such trends “accepted” in the sense of the Special Agreement ; and what
importance should be attached to such trends ? The question of the relative
importance of different trends may also arise. As an example, mention may
be made of the interrelationship between the provisions of Part V of the
draft convention concerning Exclusive Economic Zones and Part VI con-
cerning the Continental Shelf, both with regard to conceptual approaches
and to basic substantive issues.

A number of the provisions of the four Geneva Conventions on the Law
of the Sea of 29 April 1958 expressing the more traditional rules of the
International Law of the Sea have been included in the draft convention of
1981. But even in these chapters of the draft convention new trends have
frequently been included. Thus, Article 3 of the draft convention provides
as to the breadth of the territorial sea that a coastal State has the right to
establish a territorial sea “up to a limit not exceeding 12 nautical miles”.
This corresponds to the limit of the territorial sea claimed by the two
Parties.

The added importance which the draft convention seems to give to
islands — and even rocks— may be a trend of interest to the present case. In
this connection, mention may be made of Article 121, paragraph 2, of the
draft convention which provides :

“The territorial sea, the contiguous zone, the exclusive economic
zone, and the continental shelf of an island are determined in accor-
dance with the provisions of this Convention applicable to other land
territory.”

This entails that islands have an exclusive economic zone and a conti-
nental shelf proper. The same trend is noticeable even with regard to mere
rocks. Article 121, paragraph 3, provides that only “Rocks which cannot
sustain human habitation or economic life of their own shall have no
exclusive zone or continental shelf”.

Similar trends are apparent from the provisions concerning archipelagic
States and archipelagic waters ; see, inter alia, the draft convention of 1981,
Part IV and Article 2.

The bearing of the above-mentioned trend should in my respectful
opinion not be underestimated or disregarded in the present case especially
with regard to the importance of two main island formations, the island of
Jerba and the Kerkennah archipelago, as well as their adjacent low-tide
elevations.

7. Of great bearing are also other “new accepted trends” especially
Part V, Exclusive Economic Zone, inter alia, Articles 55-62 and Ar-
ticles 73-74. Likewise, Part VI, Continental Shelf, inter alia, Articles 76, 77,
80, 81 and 83.

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The principle of Exclusive Economic Zones of 200 nautical miles is an
innovation in international law. These Exclusive Economic Zones “shall
not extend beyond 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured” (Art. 57). The purposes of the
Exclusive Economic Zones are threefold. They are :

(a) a continental shelf zone ;

(b) an exclusive fisheries zone with some interesting modern trends with
regard to sovereign rights and conservation rights and obligations
(Arts. 61 ff.) ;

(c) an exclusive economic exploration and exploitation zone also with
regard to other natural resources such as the production of energy
“from water, currents and winds” (Art. 56).

This triple zone approach has been defined in Article 56 as follows :

“(1) In the exclusive economic zone, the coastal State has :

(a) sovereign rights for the purpose of exploring and exploiting, con-
serving and managing the natural resources, whether living or non-
living, of the sea-bed and subsoil and the superjacent waters, and
with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the
water, currents and winds;...”

The coastal State exercises these rights in its 200-mile zone whether the
sea-bed thereof is shallow or deep, even if the depths thereof exceed the
2,500-metre isobath mentioned in Article 76, paragraph 5 ; and regardless
of whether the sea-bed or subsoil within the 200-mile zone can be con-
sidered a natural prolongation or not (see Art. 76, paras. 1, 4 (a) and 5). Of
course, a full 200-mile economic zone is only possible where the expanses
of the ocean concerned so permit. This is obviously not the case here where
the coasts of Tunisia and Libya are angled in such a manner as to lead toa
collision between their respective 200-mile economic zones including their
sea-bed and subsoil (continental shelf areas), should they be extended
maximally. It also follows from the provisions of Article 76 that inside the
200-mile distance from the coasts, the natural prolongation principle is not
the overriding principle with regard to the sea-bed and subsoil of the
economic zone.

In this context it should be noted that the economic zone principle up to
200 miles is as valid and important a principle as the continental shelf
principle. The two principles are laid down in two separate parts ; Part V
for the Exclusive Economic Zone, and Part VI for the Continental Shelf. In
Part VI on the continental shelf, special consideration and privileged status
is given to the 200-mile zone concept both with regard to the extent of the

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continental shelf (see Art. 76 of the draft convention), and to payments
and contributions (see Art. 82 of the draft convention).

In seems clear that the provisions of both Part V and Part VI contain
“new accepted trends” as provided for in Article 1 of the Special Agree-
ment. This includes also the provisions specifically dealing with the de-
limitation of those marine areas between States with opposite and adja-
cent coasts in Article 74 (Exclusive Economic Zones) and Article 83
(Continental. Shelf). See also Article 76, paragraph 10.

The concept of exclusive economic zones of 200 miles has already won
wide recognition in the practice of States. The latest development in this
respect in the Mediterranean is the Moroccan Law (Dahir), No. 1-81 of
8 April 1981. It establishes a 200-mile Exclusive Economic Zone along the
coasts of Morocco. The zone according to Article 1, paragraph 2 :

“extends up to a distance of 200 nautical miles calculated from the
straight baselines or the normal baselines from which the territorial
sea 1s measured”.

Article 11 concerning the delimitation of the 200-mile zone provides for
the application of the equidistance principle as follows :

“Without prejudice to the circumstances of a geographical or geo-
morphological order, and taking account of all pertinent factors, the
delimitation shall be made in conformity with equitable principles
prevailing under international law, by means of bilateral agreements.
The outer limits of the exclusive economic zone shall not extend
beyond the median line all the points of which are equidistant from
the nearest points of the baselines of the Moroccan coasts and the
coasts of foreign countries whether these coasts are situated opposite
to or adjacent to the coasts of Morocco.” (See Official Bulletin of
Morocco — No. 3575 (6.5.81), pp. 232-233.)

But as early as 20 August 1971, that is to say before the emergence of the
concept of economic zones, Tunisia concluded an agreement with Italy
regarding the delimitation of the continental shelf between the two coun-
tries. The agreement was based on the principle of equidistance measured
from the nearest points on the baselines for territorial seas and “taking into
account islands, islets, and low-tide elevations” (Art. 1), special arrange-
ments being made for the Italian islands of Pantelleria, Lampione, Lam-
pedusa and Linosa (Art. 2) (Judgment, para. 20).

8. The concept of the continental shelf has also been subjected to new
trends in Part VI, inter alia, in the proposed Article 76, trends which, to
some extent at least, depart from the earlier established concepts, for

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example as they are defined in Article 1 of the Fourth Geneva Convention
on the Law of the Sea of 29 April 1958.

Article 76 of the draft convention on the Law of the Sea operates in
paragraph 1 with two types of continental shelf. The first type is that part
of the sea-bed and subsoil of the submarine areas that extend beyond the
State’s territorial sea throughout the natural prolongation of its land
territory to the outer edge of the continental margin. The other type is the
sea-bed and subsoil of a State up

“to a distance of 200-nautical miles from the baselines from which the
breadth of the territorial sea is measured where the outer edge of the
continental margin does not extend up to that distance”.

It follows from this latter definition that it is not a criterion for claiming a
continental shelf up to 200 miles that this part of the shelf constitutes a
natural prolongation of the land territory. The 200-mile continental shelf
can extend beyond the natural prolongation and into the rise and deep
ocean floor (abyssal plain) of the relevant ocean. Actually, this second
criterion of Article 76 is a corollary to the provisions laid down in
Articles 55-57 on the 200-mile Exclusive Economic Zone.

Paragraph 3 of Article 76 has an additional definition of the continental
margin relating to the first criterion mentioned above. It provides :

“The continental margin comprises the submerged prolongation of
the landmass of the coastal State, and consists of the sea-bed and
subsoil of the shelf, the slope and the rise. It does not include the deep
ocean floor with its oceanic ridges or the subsoil thereof.”

Paragraphs 4, 5 and 7 have interesting provisions concerning the extent
of a continental margin that exceeds 200 miles. These provisions are of
interest in the present case. Thus, paragraph 4 (a) (i) demonstrates that the
upper layers of the sediment may be of importance for the extent (beyond
200 miles) of the continental margin, in so far as the extent of the conti-
nental margin may be established by reference to the points where “the
thickness of sedimentary rocks is at least 1 per cent of the shortest distance
from such point to the foot of the continental slope’. Article 76, para-
graph 4 (a) (ii), and paragraph 5, demonstrate that adjacency and proxi-
mity are likewise relevant considerations as shown by the distance or depth
criteria there laid down.

9. The conclusions to be drawn from the new trends arrived at in
Parts V and VI of the draft convention may be stated as follows :

The emergence of the 200-mile Exclusive Economic Zone concept in

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Part V of the draft convention is not based on the concept of natural
prolongation, but on the concept that a coastal State should have func-
tional sovereign rights over the natural resources in a belt of water and
sea-bed 200 miles seawards whether the coastal State concerned possesses
a continental shelf in the traditional sense or not. This new development
has been accepted in recent State practice. This 200-mile economic zone
concept refers not only to the resources of the seas (living or non-living),
but also to the natural resources on or in the sea-bed. To this extentit is also
in practice a continental shelf concept.

Note should likewise be taken of the fact that the provisions concerning
the delimitation of the Exclusive Economic Zones in Article 74 of the draft
convention and the provisions on the delimitation of continental shelves
between States with opposite or adjacent coasts, contained in Article 83,
are identical.

Certain questions appear to arise because of the inter-relation between
the new concept of exclusive economic zones and the continental shelf
concept, the more so since certain new trends in Article 76 of the draft
convention seem to strengthen this inter-relation and interdependence.

The first question which may be raised is whether the concept of natural
prolongation has not been weakened by these recent trends within the
200-mile zone. Even without these developments, the question still arises
as to whether the natural prolongation concept may appreciably assist in
drawing up the dividing line between the continental shelves of adjacent
States in cases like the present where the Parties share a common conti-
nental shelf which is the joint natural prolongation of the landmass of both
Parties. Another question which appears to arise is whether different lines
of delimitation are conceivable for the Exclusive Economic Zone and the
continental shelf in such a case, bearing in mind that the exclusive eco-
nomic zone concept laid down in Part V of the draft convention also
comprises the natural mineral resources of the sea-bed and its subsoil, that
is the natural resources of the continental shelf. A question about this
underlying problem was put to the Parties during the oral pleadings by one
Member of the Court. The answers seemed somewhat inconclusive. With
all due respect, it seems to me as though sufficient attention has not been
given in the Judgment to this aspect of delimitation based on the new
accepted trends ; neither in the legal reasoning — including the equity
considerations — nor in the operative part thereof.

10. I share the view (Judgment, para. 41) that the term “continental
shelf” refers to “an institution of international law which, while it remains
linked to a physical fact, is not to be identified with the phenomenon
designated by the same term — ‘continental shelf’ — in other disciplines”. It
is a concept of international law. And this concept may obviously be
moulded and changed by developments and changes in international law.

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The development of the exclusive economic zone concept is not an insig-
nificant element in this respect and might perhaps influence the practical
method of delimitation.

In this context, note should be taken of a development in the Law of the
Sea Conference and in the domain of State practice which has weakened
the practical impact of the concept of natural prolongation through the
development of that of the 200-mile economic zone ; this aside from the
practical difficulties of basing a line of delimitation for a joint shelf on the
natural prolongation thereof when the two adjacent countries also share
the same landmass.

The Parties have only briefly touched upon the 200-mile exclusive eco-
nomic zone concept as a new accepted trend in the Law of the Sea Con-
ference. This new concept might not fit well into some of the main sub-
missions and legal reasoning of the Parties. Even so, the question arises as
to whether the Court in its Judgment should not have laid more emphasis
on this recent trend. I feel that it is hardly conceivable in the present case to
draw a different line of delimitation for the exclusive economic zone and
for the continental shelf. The areas to be delimited will in both instances be
situated well inside the 200 nautical miles “from the baselines from which
the breadth of the territorial sea is measured”. To my mind, it is somewhat
doubtful that a practical method for the delimitation of the areas con-
cerned should be based solely or mainly on continental shelf considera-
tions. Thus, it may perhaps be a too restrictive approach in the present case
to maintain that “the ‘principles and rules of international law which may
be applied’ for the delimitation of continental shelf areas must be derived
from the concept of the continental shelf itself” (Judgment, para. 36).

11. I share the view expressed in paragraph 61 of the Judgment that

“despite the confident assertions of the geologists on both sides that a
given area is ‘an evident prolongation’ or ‘the real prolongation’ of the
one or the other State for legal purposes it is not possible to define the
areas of continental shelf appertaining to Tunisia and to Libya by
reference solely or mainly to geological considerations. The function
of the Court is to make use of geology only so far as required for the
application of international law.”

Libya discerns a purely northward direction of the prolongation of the
landmass — “the northward thrust” — based mainly on geology (Judgment,
para. 62). In the written and oral pleadings of Libya, a variety of arguments
have been put forward to support the allegations concerning the northward
thrust ; neither taken separately nor considered together do these argu-
ments support the northward thrust theory which seems untenable in law
as well as on the facts.

Tunisia sees “an eastward natural prolongation off eastern Tunisia”

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(Judgment, para. 64), based on a more complex set of factors including,
inter alia, geology, bathymetry and geomorphology. The geography,
bathymetry and geomorphology demonstrate interesting features with
regard to an eastward trend of the shelf.

These features alone disprove the allegations of a northward thrust.
Even so, I share the view of the Court to the effect that :

“The Court, while not accepting that the relative size and impor-
tance of these features can be reduced to such insubstantial propor-
tions as counsel for Libya suggest, is unable to find that any of them
involve such a marked disruption or discontinuance of the sea-bed as
to constitute an indisputable indication of the limits of two separate
continental shelves, or two separate natural prolongations.”
(Para. 66.)

As a consequence of the eastward natural prolongation, as seen by it,
Tunisia has submitted a sheaf of lines constituting a method of alternatives
as the equitable method of delimitation of the continental shelf. However, I
share the view of the Court that none of these lines is tenable as the
equitable line of delimitation. The geometric constructions seem some-
what too artificial to be considered equitable. At the same time they may
have implications for lines of delimitation with third States that may be
unacceptable.

I shall, however, deal briefly with one interesting line of argument
advanced by Tunisia in this context, based on the physiographic definition
of the continental margin laid down in Article 76, paragraph 3, of the draft
convention. This paragraph provides :

“The continental margin comprises the submerged prolongation of
the landmass of the coastal State, and consists of the sea-bed and the
subsoil of the shelf, the slope and the rise. It does not include the deep
ocean floor...”

Based on this definition of the “continental margin” Tunisia submits
that the Pelagian Block corresponds to “the sea-bed and subsoil of the
shelf” while the “Misratah-Malta Escarpment or Ionian Flexure” corres-
ponds to the slope and the rise in the above definition. The Ionian Abyssal
Plain corresponds to “the deep ocean floor” mentioned in the definition.
Accordingly it should be possible to define the orientation of, and draw the
dividing line for, the continental shelf between the two Parties by a line
drawn from a point at the Tunisian-Libyan coast to the centre of the Ionian
Abyssal Plain. In my opinion Article 76, paragraph 3, should be consid-
ered a “new accepted trend in the Third Conference on the Law of the Sea”
according to Article 1 of the Special Agreement. But I share the view that
the argument advanced by Tunisia may not be tenable, and would hardly
lead to an equitable result, all circumstances taken into consideration. The
main purpose of Article 76, paragraph 3, is to serve as a yardstick for the

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outer limit of a State’s continental shelf into the oceans. More concrete
rules for this seaward delimitation are given in the subsequent paragraphs
of Article 76 ; in particular, paragraphs 4-7. The definition given in Arti-
cle 76, paragraph 3, may have a bearing on the delimitation of the conti-
nental shelves of neighbouring countries. This is obvious with regard to
“opposite” States. It is not so obvious that the definition of paragraph 3
will have equal practical bearing on the lateral delimitation of the shelves
of adjacent States. The present case has features of delimitation related
both to those of opposite and to those of lateral States. However, the
special features of the areas of the Mediterranean here concerned do not
lend themselves easily to a practical application of Article 76, paragraph 3,
for delimitation purposes, at least not where the delimitation in question is
concerned. Nor is it apparent that it would result in an equitable solution.
In this context one must also bear in mind the provisions laid down in
Article 76, paragraph 10, to the effect 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,”

which seems relevant in this context.

12. Article 1 of the Special Agreement of 1 December 1978 provides
that the Court : “shall take its decision according to equitable principles,
and the relevant circumstances which characterize the area...”

It appears from these provisions that there is a close relation between the
“equitable principles” and the “relevant circumstances which characterize
the area”.

Aside from these express references to equitable principles in the Special
Agreement, it is indisputable that equity forms part of international law.
But as a legal principle it cannot operate in a vacuum either juridically — it
is part of the international law system — or factually — as a legal principle it
applies to a concrete case. In the present case, it must be clearly distin-
guished from an “ex aequo et bono” decision. The equitable solution in this
case based on equitable principles must have its foundation in interna-
tional law not in a discretionary decision-making process. Or, as Maitland
stated in his famous dictum quoted in oral argument, “Equity came not to
destroy the law but to fulfil it”. This dictum is as valid within the inter-
national law system as in the common law systems.

In the Judgment of the Permanent Court of International Justice in the
River Meuse case of 28 June 1937, Judge Hudson stated how equitable
principles form an integral part of international law, as follows :

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“What are widely known as principles of equity have long been
considered to constitute a part of international law, and as such they
have often been applied by international tribunals ... A sharp divi-
sion between law and equity, such as prevails in the administration of
justice in some States, should find no place in international jurispru-
dence ; even in some national legal systems, there has been a strong
tendency towards the fusion of law and equity. Some international
tribunals are expressly directed by the compromis which control them
to apply “Law and Equity... Of such a provision, a special tribunal of
the Permanent Court of Arbitration said in 1922 that ‘the majority of
international lawyers seem to agree that these words are to be under-
stood to mean general principles of justice as distinguished from any
particular systems of jurisprudence’. . .” (P.C.IL.J., Series A/ B, No. 70,
p. 76.)

Equity as part of international law was dealt with in some detail in the
North Sea Continental Shelf cases (I. C.J. Reports 1969, paras. 88-89). It has
been extensively dealt with by the Parties in their written pleadings and
oral argument.

By the very nature of things the line between a decision based on
equitable principles — lying within the realm of international law accord-
ing to Article 38, paragraph 1, of the Statute — and a decision ex aequo et
bono according to Article 38, paragraph 2, of the Statute is a very delicate
distinction. This distinction should not be blurred. Thus, in my respectful
opinion, equity principles cannot operate in a void. In this context, it is
interesting to note that in the Delimitation of the Continental Shelf case
between France and the United Kingdom the Court of Arbitration in its
Decision of 30 June 1977 was careful not to operate in a void so as to leave
it to a totally discretionary decision-making process where to draw the
dividing line. The equidistance principle was applied as a juridical starting
point for the application of equity. In this context, it states, inter alia :

“The Court notes that in a large proportion of the delimitations
known to it, where a particular geographical feature has influenced
the course of 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 geo-
graphical feature in circumstances in which the line equidistant from
the coasts of the two States would otherwise constitute the appro-
priate 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

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different criterion of delimitation.” (See HMSO, Cmnd. 7438, 1978,
para. 249.) (Emphasis added.)

Thus, in this arbitration as well as in the North Sea Continental Shelf
cases, the Court of Arbitration and the International Court of Justice,
respectively, used at least as one point of departure the equidistance
principle for the application of equity. Furthermore, in the North Sea
Continental Shelf cases the principle prevailed that the Parties should
divide the continental shelf between them by agreement although subse-
quent to and pursuant to the Court’s decision.

In the North Sea Continental Shelf cases, the Court held, as is well
known, that the use of the equidistance method of delimitation was not
obligatory between the Parties. Actually no single method of delimitation
could be considered obligatory in all circumstances.

The Court made, however, some interesting findings bearing upon the
equidistance principle. Thus, in paragraph 99 of its Judgment, the Court
indicated solutions where the claims to a continental shelf overlap as
follows :

“Tn a sea with the particular configuration of the North Sea, and in
view of the particular geographical situation of the Parties’ coastlines
upon that sea, the methods chosen by them for the purpose of fixing
the delimitation of their respective areas may happen in certain
localities to lead to an overlapping of the areas appertaining to them.
The Court considers that such a situation must be accepted as a given
fact and resolved either by an agreed, or failing that by an equal
division of the overlapping areas, or by agreements for joint exploi-
tation, the latter solution appearing particularly appropriate when it
is a question of preserving the unity of a deposit.” (Z.C.J. Reports 1969,
p. 52, para. 99.)

The importance which the International Court of Justice attached to the
equidistance principle in applying equitable principles has been summed
up as follows by the Court of Arbitration in the Delimitation of the
Continental Shelf case in the following manner :

“As to the Court’s [the I.C.J.’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’
U.CJ. Reports 1969, para. 22); 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 applica-

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tion’ (ibid, para. 23). 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 of the equidistance method or, not
infrequently, of some variant of that method.” (See HMSO, Cmnd.
7438, 1978, p. 54, para. 85.)

13. In its Judgment in the North Sea Continental Shelf cases, the Court
made certain distinctions between opposite States and adjacent States.
With regard to opposite States, the Court remarked :

“The continental shelf area off, and dividing, opposite States, can
be claimed by each of them to be a natural prolongation of its terri-
tory. 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 dis-
torting effect of which can be eliminated by other means, such a line
must effect an equal division of the particular area involved.” (I. C.JT.
Reports 1969, p. 36, para. 57.)

Where the delimitation of the continental shelf of adjacent States was
concerned, the Court made the following observations :

“This type of case is therefore different from that of laterally
adjacent States on the same coast with no immediately opposite coast
in front of it, and does not give rise to the same kind of problem... .”
({bid.)

The line of reasoning for the distinction between lateral and opposite
delimitation is interesting, especially the express assumption that in lateral
delimitation “adjacent States on the same coast [have] no immediately
opposite coast in front of [them]”. In the present case, however, one of the
main difficulties arises from the fact that although Tunisia and Libya are
adjacent States, their relevant coasts have to a substantial extent the
characteristics of opposite States as well as those of lateral States. This
main characteristic must be reflected in the practical method of delimita-
tion. If not, the relevant circumstances which characterize the area have
not been taken into account, and the solutions arrived at may be discre-
tionary rather than equitable.

14. The question arises as to whether it would be possible to elucidate
certain of the equitable principles or considerations which may play a role
in the present case, taking into consideration, inter alia, “the relevant
circumstances which characterize the area, as well as the new accepted
trends in the Third Conference on the Law of the Sea”.

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To give an exhaustive enumeration of such principles or elements ap-
plicable in the present case would be impossible and unwarranted. Unwar-
ranted because it would be contrary to the very nature of the concept of
equitable principles to attempt exhaustive formulations or enumerations
and impossible for much the same reasons. The Court stated in the North
Sea Continental Shelf cases 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.” (C.J. Reports 1969, p. 50,
para. 93.)

But for this very reason, I respectfully submit that the equity consider-
ations to be applied must be placed in some legal context. If applied in a
legal void as entirely self-sufficient, equity may easily change the character
of a decision from being a legal decision under Article 38, paragraph 1, of
the Statute to becoming an ex aequo et bono decision governed by the
provisions of paragraph 2 of Article 38 of the Statute. The Court has no
such authority in the present case.

One legal principle which obviously may play a role in this case as a
corollary to equity considerations is the equidistance principle mentioned
above. I share the view of the Court that the equidistance principle is not a
mandatory principle for delimiting the continental shelf (or Exclusive
Economic Zones) of neighbouring States (Judgment, para. 109). But I re-
spectfully hold an opinion different from that expressed by the Court in
paragraph 110.

It is of course correct that, in the present case, the Court is not required
“as a first step, to examine the effects of a delimitation by application of
the equidistance method, and to reject that method in favour of some other
only if it considers the results of an equidistance line to be inequitable”.
But in this context, it should be borne in mind that in the Fourth Geneva
Convention of 29 April 1958, on the continental shelf, Article 6 provides,
inter alia:

“Tn the absence of agreement, and unless another boundary line is
justified by special circumstances, the boundary is the median line,
every point of which is equidistant from the nearest points of the
baselines from which the breadth of the territorial sea of each State is
measured.”

I would likewise draw attention to Article 12 of the first Geneva Con-
vention of 29 April 1958 on the Territorial Sea and the Contiguous Zone.
Article 12 provides :

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“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
dividing line every point of which is equidistant from the nearest
points on the baseline from which the breadth of the territorial seas of
each of the States is measured.”

I further respectfully submit that in stating in paragraph 110 of the
Judgment that “equidistance is not, in the view of the Court . .. a method
having some privileged status in relation to other methods” the Court also
seems unaware of the fact that even in the draft convention of 1981, of the
Third Law of the Sea Conference, the text has given special consideration
to the equidistance/median line principle. Article 15 on the delimitation of
the territorial sea between States with opposite or adjacent coasts is in
terms identical to those of the Geneva Convention. Article 15 provides as
follows :

“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 cir-
cumstances to delimit the territorial seas of the two States in a way
which is at variance therewith.”

In its almost total disregard or belittlement of the equidistance method
in paragraph 110 of the Judgment the Court now clearly is at variance with
the succinct statement made by the Court in its Judgment of 20 February
1969, paragraph 22, to the effect that :

“Particular attention is directed to the use, in the foregoing for-
mulations, of the terms ‘mandatory’ and ‘obligation’. It has never
been doubted that the equidistance method of delimitation is a very
convenient one, the use of which is indicated in a considerable number
of cases. It constitutes a method capable of being employed in almost
all circumstances, however singular the results might sometimes be,
and has the virtue that if necessary, — if for instance, the Parties are
unable to enter into negotiations, — any cartographer can de facto
trace such a boundary on the appropriate maps and charts, and those
traced by competent cartographers will for all practical purposes
agree.” (LC.J. Reports 1969, p. 23.)

The Court likewise seems to disregard the fact that the equidistance/
median line principle is the only concrete principle added to the broad
reference to equity which has been discussed in the Third Law of the Sea
Conference as related to the delimitation of the Exclusive Economic Zones
and the Continental Shelf of adjacent and opposite States. This is apparent

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from the various Informal Negotiating Texts and the Informal Text of the
draft convention on the Law of the Sea of 27 August 1980, Articles 74 and
83.

The Court likewise seems to disregard the findings of the Court of
Arbitration in its Decision of 30 June 1977 as quoted in paragraph 12 of
this dissenting opinion. The Court completely disregards the very abun-
dant State practice laid down in numerous delimitation agreements and
enactments demonstrating the practical importance of the equidistance
principle for the delimitation of continental shelves and the exclusive
economic zones.

In my opinion the arguments advanced in paragraph 110 fail to mention
any legal principles on which a decision on delimitation should be based.
The “relevant circumstances” to be evaluated must be applied in relation
to some rules of law. However, in the present case, the Court seems to
consider that delimitation based on “relevant circumstances” as a purely
discretionary operation where the Court more or less at will can disregard
relevant geographical factors like the island of Jerba, the Zarzis promon-
tories and the Kerkennah Islands ; can draw lines of delimitation which
run closely in front of such geographical factors and veer lines in an
arbitrary manner without any attempt to establish reasonable equality as
to distance between the nearly opposite coasts concerned. In my respectful
submission, both the reasoning in paragraph 110 and elsewhere in the
Judgment as well as the operative paragraphs thereof seem closer to a
decision-making process based on an ex aequo et bono approach according
to Article 38, paragraph 2, of the Statute of the Court than to the authority
given to the Court in Article 38, paragraph 1, of the Statute. The results,
“however, are not equitable in my respectful opinion.

15. Another element to be taken into consideration is the development
of the 200-mile zone concept ; both as it has been developed in the draft
convention — Chapter VI on the Continental Shelf, Article 76, para-
graph 1, and in Chapter V, Article 54, on the Exclusive Economic Zone.
Admittedly this case is concerned with the delimitation of the continental
shelf of the two Parties. But the 200-mile concept as developed both in
Chapter V and in Chapter VI of the draft convention must, in my re-
spectful opinion, be considered at least as “new accepted trends” in the
“Third Law of the Sea Conference”. In clarifying “the practical method for
the application” of the principles and rules of international law, consid-
eration should be given to this development, and for various reasons. When
neighbouring States claim functional sovereign rights up to 200 miles — be
they opposite States or adjacent States — their claims are based on a
distance criterion. This very fact seems to strengthen the equidistance/
median line principle as an equitable approach for delimiting overlapping
areas. Furthermore, the Court should not exclude that Exclusive Economic
Zones may be established in the areas concerned as in other areas of the
Mediterranean. It seems reasonable that the dividing line for such zones
should coincide with those laid down for continental shelf purposes. Also
for this reason, I believe that the line of delimitation should be based on

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somewhat different considerations than those chosen by the Court. The
resulting practical method of delimitation would have been more adequate
and equitable considering the special circumstances and needs of the
region. In paragraph 109 of the Judgment, the Court states, after having
noted that equidistance “has been employed in a number of cases” in the
practice of States that : “equidistance may be applied if it leads to an
equitable solution ; if not, other methods should be employed”. But the
Court has not attempted to use this test in the present case. Nor has it
examined whether the equidistance principle could be fruitfully used,
adjusted by principles of equity and the relevant circumstances charac-
terizing the region concerned to bring about an equitable solution. In this
context, I wish to refer to paragraph 126 of the Judgment, where the
observation is made that :

“The major change in direction undergone by the coast of Tunisia
seems to the Court to go some way, though not the whole way, towards
transforming the relationship of Libya and Tunisia from that of
adjacent States to that of opposite States”

and the Court continues :

“and thus to produce a situation in which the position of an equidis-
tance line becomes a factor to be given more weight in the balancing of
equitable considerations than would otherwise be the case”.

Aside from paying homage to the equidistance principle by this last sen-
tence, the Court seems to have disregarded it completely also with regard
to these “opposite” coasts. The island of Jerba, an island of some 690
square kilometres, has been totally disregarded, as have the promontories
of Zarzis. The archipelago of Kerkennah has, for reasons not spelled out by
the Court, been given “half weight”, but not in regard to establishing an
equidistance line but a 52° line which deviates fundamentally from an
equidistance line.

J also beg respectfully to disagree with the assessment of the Court in the
above-quoted passage in paragraph 109, that “equidistance may be
applied if it leads to an equitable solution ; if not, other methods should be
employed”. This relegation of the equidistance principle to the last rank of
practical methods does not correspond — in my opinion — to prevailing
principles of international law as evidenced by State practice, multilateral
and bilateral conventions ; the findings of the Court in its 1969 decisions
and the findings by the Court of Arbitration in 1977 in the Delimitation of
the Continental Shelf case.

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16. An equitable principle which has been considered as important both
in the Judgment of the International Court of Justice in the 1969 Judgment
in the North Sea Continental Shelf cases as well as in the Court of Arbi-
tration’s Decision in the Delimitation of the Continental Shelf case in 1977
is the principle of not refashioning nature.

The International Court of Justice in its 1969 Judgment had this to say
about the principle :

“Equity does not necessarily imply equality. There can never be any
question of completely refashioning nature, and equity does not
require that a State without access to the sea should be allotted an area
of continental shelf, any more than there could be a question of
rendering the situation of a State with an extensive coastline similar to
that of a State with a restricted coastline. Equality is to be reckoned
within the same plane, and it is not such natural inequalities as
these that equity could remedy.” (LC J. Reports 1969, pp. 49-50,
para. 91.)

As to the application of this principle in the case at hand, the Court
stated : ‘

“It is therefore not a question of totally refashioning geography
whatever the facts of the situation but, given a geographical situation
of quasi-equality as between a number of States, of abating the effects
of an incidental special feature from which an unjustifiable differ-
ence of treatment could result.” (Zbid., p. 50, para. 91.) (Emphasis
added.)

In its 1977 Decision in the Delimitation of the Continental Shelf case,
the Court of Arbitration dealt with this principle in regard to Ushant and
the Scilly Isles. The Court stated, inter alia :

“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’.

Just as it is not the function of 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.” (See HMSO,
Cmnd. 7438, 1978, p. 116, paras. 248 and 249.) (Emphasis added.)

This principle is of course closely bound up with the principle that “the

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relevant circumstances which characterize the area” must be taken into
consideration. It is obvious that in a case of drawing the lines of delimi-
tation between States — be it on land or in marine areas — the relevant
circumstances characterizing the region concerned must play a decisive
role. This follows from the very nature of things. In addition it has
expressly been laid down in the Special Agreement in Article 1, para-
graph 1, and reverted to in Article 1, paragraph 2, that the concrete ele-
ments of, inter alia, nature and geography shall be taken into account. This
certainly does not mean that they should be disregarded wholly or in part.
If, irrespective of these facts such relevant regional circumstances should
be held irrelevant and consequently disregarded, very solid reasons of
equity and justice must exist therefore. In paragraph 79 of the Judgment,
the Court states :

“The body of ‘islands, islets and low-tide elevations which form a
constituent part of the Tunisian littoral’, referred to in the Tunisian
submissions, is a feature closely related to the claim of Tunisia to
historic rights . . .”

But islands, islets and low-tide elevations have of course more far-reaching
effects for the delimitation of the continental shelves than those mentioned
in the above quotation. This follows from principles of law as well as from
considerations of equity.

Thus, in Article 1 of the Geneva Convention on the Continental Shelf of
1958, it is provided that the definition of the term “continental shelf” is
used also as referring “to the sea-bed and subsoil of similar submarine
areas adjacent to the coasts of islands”. As mentioned above, Article 121 of
the draft convention on the Law of the Sea of 1981, provides that islands
have their territorial sea, their Exclusive Economic Zone and their conti-
nental shelf proper “in accordance with the provisions of this Convention
applicable to other land territory”.

17. The Court affirms in paragraph 79 of the Judgment that the pre-
sence of the island of Jerba and of the Kerkennah Islands is a circumstance
which clearly calls for consideration ; and further that “the Court cannot
accept the exclusion in principle of the island of Jerba and the Kerkennah
Islands from consideration”. But in the next sentence, the Court holds that
the island of Jerba is to be totally disregarded ; as to the relevancy of the
Kerkennah Islands, it is stated that “the existence and position of the
Kerkennah Islands . . ., on the other hand, is highly material”. However, in
paragraph 129 of the Judgment, the Court has deemed it appropriate to
attribute only half-effect to the Kerkennah Islands. The enormous low-tide
elevations surrounding both the Kerkennah Islands and Jerba are disre-
garded so completely that no mention of them has been made at all.

Neither has any mention been made of the important promontories of
Zarzis, of which the island of Jerba is but a continuation ; nor of the fact
that the coastline from Ras Ajdir to the Bay of Al-Biban, which has a
direction west-northwest, veers almost due north when meeting the coast-

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line of the Zarzis Peninsula and its continuation, the island of Jerba. This
complete change of direction has been disregarded in the Judgment.

Disregarding completely these special characteristics of very relevant
sections of the Tunisian coastline and only giving half effect to the Ker-
kennah Archipelago is in my respectful opinion a refashioning of nature
which is neither warranted in law nor by the facts, nor is the disregard of
such important geographical features equitable.

Some further details may be illustrative. The island of Jerba is actually a
continuation of the mainland in a northerly direction ; at low-tide it is
scarcely an island, but is separated from the mainland by a very narrow
strait (ford). Already in Roman times the island was linked to the mainland
with a causeway which is still in use by camel drivers. The waters sur-
rounding the rest of Jerba are also very shallow. Jerba is, like the Ker-
kennahs, surrounded by a belt of banks and low-tide elevations where
stationary surface fishing-gear is in extensive use (Tunisian Memorial,
paras. 3.25-3.27). The island has an area of some 690 square kilometres,
which corresponds to twice the size of the island of Malta. The economic
importance of the island is significant. It has a considerable perma-
nent population and has likewise developed into an important tourist
centre.

18. The Kerkennah Archipelago forms a natural prolongation of the
north shore of the Gulf of Gabes. The Kerkennah Archipelago consists of
two main islands and a number of smaller islands (Tunisian Memorial,
paras. 3.18-3.20). The area of the Kerkennahs is some 180 square kilo-
metres, i.e., almost the size of the island of Malta. The Kerkennahs are
surrounded by an extensive belt of low-tide elevations and shoals some
9-27 kilometres in width. The Kerkennahs lie 11 miles to the east of the
mainland but are virtually a continuation of the mainland by virtue of the
extreme shallowness of the waters separating them from the mainland.
Navigation in the passage between the islands and the mainland is difficult
and only possible for small craft. On the seaward side of the Archipelago
there is likewise a large surrounding area of low-tide elevations. These
areas are closely linked to the islands and are exploited by the local
population, as has been the case throughout history, by a special form of
aquaculture bearing striking similarities to agriculture. The countless per-
manent surface fishing installations are tended and harvested by the fish-
ermen (owners) on foot. This immense rampart of low-tide elevations is
marked by buoys and beacons (Tunisian Memorial, para. 3.21). Both the
islands of the Kerkennah Archipelago as well as the low-tide elevations
and the unique shallowness of the waters form very striking and relevant
circumstances, which certainly characterize the area. Such characteristics
have been given significant weight in the annals of international law, in
State practice, in the findings of the International Court of Justice in the
Anglo-Norwegian Fisheries case of 18 December 1951 (.C.J. Reports
1951, pp. 116 ff.), and in multilateral and bilateral conventions such as the
Geneva Convention on the Law of the Sea and the Geneva Convention on
the Continental Shelf both dated 29 April 1958. The new accepted trends

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in the Third Law of the Sea Conference have gone further in this direction
of recognizing the importance of regional characteristics such as islands,
archipelagos, rocks, reefs and low-tide elevations. In the Anglo-Norwegian
Fisheries case, mentioned above, the critical problem was whether the
Norwegian straight baseline system, drawn between the innumerable
islands, islets, rocks and low-tide elevations of the coastal rampart called
the “skjaergaard” along the coasts of northern Norway was “inconsistent
with the rules of international law”. The Court held :

“The Court finds itself obliged to decide whether the relevant
low-water mark is that of the mainland or of the ‘skjaergaard’. Since
the mainland is bordered in its western sector by the ‘skjaergaard’,
which constitutes a whole with the mainland, it is the outer line of the
‘skjaergaard’ which must be taken into account in delimiting the belt
of Norwegian territorial waters. This solution is dictated by geo-
graphic realities.” (LC.J. Reports 1951, p. 128.)

Consequently the Court held that the straight baseline method (drawn
between islands, islets, rocks and low-tide elevations) “employed for the
delimitation of the fisheries zone by the Royal Norwegian Decree of July
12th, 1935, is not contrary to international law” (1CJ. Reports 1951,
p. 143).

The Geneva Convention of 1958 on the Territorial Sea provides, in
Article 4, concerning islands and coastal archipelagos, in paragraph 1
that :

“In localities where the coastline is deeply indented and cut into, or
if there is a fringe of islands along the coast in its immediate vicinity,
the method of straight baselines joining appropriate points may be
employed in drawing the baseline from which the breadth of the
territorial sea is measured.”

In a separate article on islands (Art. 10) it provides :

“(1) An island is a naturally formed area of land, surrounded by
water, which is above water at high tide.

(2) The territorial sea of an island is measured in accordance with
the provisions of these articles.”

The Convention has the following provisions on low-tide elevations in
Article 11 :

“(D Alow-tide elevation is a naturally formed area of land which is
surrounded by and above water at low-tide but submerged at high
tide. Where a low-tide elevation is situated wholly or partly at a
distance not exceeding the breadth of the territorial sea from the

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mainland or an island, the low-water line on the elevation may be used
for measuring the breadth of the territorial sea.

(2) Where a low-tide elevation is wholly situated at a distance
exceeding the breadth of the territorial sea from the mainland or an
island, it has no territorial sea of its own.”

Article 1 of the Geneva Convention of 1958 on the Continental Shelf
likewise contains provisions to the effect that islands have continental
shelves of their own as follows :

“For the purpose of these articles, the term ‘continental shelf’ is
used as referring . . . (b) to the seabed and subsoil of similar submarine
areas adjacent to the coasts of islands.”

Article 7 of the draft convention on the Third Law of the Sea Conference
of 1981 on straight baselines contains provisions identical with those
quoted above from Article 4 of the Geneva Convention of 1958 on the Law
of the Sea. Article 13 of the draft on low-tide elevations has provisions
identical with those contained in Article 11 of the 1958 Convention on the
Territorial Sea. See also Article 7, paragraph 4.

In the present case, especially with regard to the Kerkennah Archipelago
and the Gulf of Gabes, paragraph 5 of Article 7 should be borne in mind as
a highly relevant trend in the Third Law of the Sea Conference. It pro-
vides :

“Where the method of straight baselines is applicable under para-
graph 1, account may be taken, in determining particular baselines of
economic interests peculiar to the region concerned, the reality and
the importance of which are clearly evidenced by long usage.”

The special characteristics of the low-tide elevations surrounding both
the Kerkennah Archipelago and the island of Jerba, as shown to the Court
by the film of those areas, bear a clear resemblance to the formations
regulated in Article 6 of the draft convention on reefs. It provides :

“In the case of islands situated on atolls or of islands having
fringing reefs, the baseline for measuring the breadth of the territorial
sea is the seaward low-water line of the reef, as shown by the appro-
priate symbol on charts officially recognized by the coastal State.”

I respectfully submit that giving only half effect to the Kerkennah
Archipelago and at the same time disregarding completely the low-tide
elevations surrounding and forming a natural part thereof, is not war-
ranted in law and does not correspond to equity.

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303 CONTINENTAL SHELF (DISS. OP. EVENSEN)

19. The line of argument adopted in paragraph 128 of the Judgment is
not convincing in my respectful opinion. The Court notes that a line drawn
from the westernmost point of the Gulf of Gabes (presumably at 34° 10.5’
north latitude) to Ras Kaboudia would have a bearing of 42° to the
meridian. This is a totally imaginary line some 160 kilometres long. As a
straight line itis drawn inland some 6 miles (11 kilometres) from the actual
sea-coast, thus disregarding the actual shoreline. To pay attention to the
bearing of this artificial line — which is “approximately 42° to the me-
ridian”’, is, in my respectful opinion “a refashioning of nature”. Actually a
straight line drawn to the protruding points of the coast in a direction
towards Sfax to Ras Busmada would be at an angle of approximately 51°
to the meridian, not 42°.

In paragraph 128, the Court observes that to the east of the imaginary
line of 42°

“lie the Kerkennah Islands, surrounded by islets and low-tide eleva-
tions, and constituting by their size and position a circumstance
relevant for the delimitation, and to which the Court must therefore
attribute some effect”.

Actually the Kerkennahs together with their unique and vast low-tide
elevations form a geographical configuration typical of a coastal archipel-
ago. Because of the shallowness of the surrounding waters and the special
characteristics of the area as a whole, the Kerkennahs are in fact in many
respects a hybrid, between a promontory extending the northern part of
the Gulf of Gabes, and islands. For these reasons alone, but also in view of
the heavy emphasis the Special Agreement of 1977 put on the relevant
circumstances that characterize the area, I disagree respectfully with the
Court’s observation that this archipelago should only be given “some
effect”.

Further down in the same paragraph, the Court states :

“In these geographical circumstances, the Court has to take into
account not only the islands, but also the low-tide elevations which,
while they do not, as do islands, have any continental shelf of their
own, do enjoy some recognition in international law for certain pur-
poses ...”

In spite of these assertions the Court seems to proceed in the next
sentence to disregard the low-tide elevations and also to give very little
effect to the Kerkennah Archipelago. After having asserted that a line from
the most westerly point of the Gulf of Gabes to the Kerkennah Islands
{and disregarding the low-tide elevations) would run at a bearing of
approximately 62° to the meridian, the Court continues :

“The Court considers that to cause the delimitation line to veer even
as far as to 62°, to run parallel to the island coastline, would, in the
circumstances of the case, amount to giving excessive weight to the
Kerkennahs.”

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304 CONTINENTAL SHELF (DISS. OP. EVENSEN)

The Court does not give any reasons why the 62° line would give
“excessive weight to the Kerkennahs”. Nor does it give any reasons why it
totally disregards the low-tide elevations surrounding the Archipelago,
repeatedly invoked in the case as geographic features that characterize the
area. If these low-tide elevations had been taken into account the line
drawn from the westernmost point of the Gulf of Gabes to the Kerkennahs
would run approximately in the direction of 66° to the meridian and not
62°. Even according to the Court’s ruling of giving half effect to the
Kerkennahs — a result which to my mind is unequal and a refashioning of
nature — the veering should in no event be a 52° line but a line running
some 57.5° to the meridian. Even this line would be less equitable than an
equidistance line.

20. In paragraphs 118 ff. the Judgment deals with an issue of para-
mount importance for “the practical method for the application of” the
principles and rules of international law in the “specific situation”, that is,
the 26° line which is described in the following manner in the operative
part of the Judgment, paragraph 133 C (2),

“in the first sector, namely in the sector closer to the coast of the
Parties, the starting point for the line of delimitation is the point where
the outer limit of the territorial sea of the Parties is intersected by a
straight line drawn from the land frontier point of Ras Ajdir through
the point 33° 55’ N, 12° E, which line runs at a bearing of approxi-
mately 26° east of north, corresponding to the angle followed by the
north-western boundary of Libyan petroleum concessions numbers
NC 76, 137, NC 41 and NC 53, which was aligned on the south-eastern
boundary of Tunisian petroleum concession ‘Permis complémentaire
offshore du Golfe de Gabés’ (21 October 1966) ; from the intersection
point so determined, the line of delimitation between the two conti-
nental shelves is to run north-east through the point 33° 55’ N, 12° E,
thus on that same bearing, to the point of intersection with the parallel
passing through the most westerly point of the Tunisian coastline
between Ras Kaboudia and Ras Ajdir, that is to say, the most westerly
point on the shore-line (low-water mark) of the Guif of Gabes”.

In the Court’s view, the 26° line from “the land frontier point of Ras
Ajdir” should continue on the same bearing until it reaches the parallel of
the “most westerly point of the Tunisian coastline” in the Gulf of Gabes
(34° 10’ 30” N approximately). The Court has not explained why the most
westerly bottom point of the Gulf of Gabes should be the relevant point
here while at the same time the Court is ignoring the island of Jerba and the
promontories of Zarzis. These configurations change completely the direc-
tion of the Tunisian coastline northward at a longitude more than 60 miles
to the east of the bottom point of the Gulf of Gabes actually used by
the Court. That is from some 10° east to some 11° 10’ east latitude. I re-
spectfully feel that this choice of the Court is discretionary and not equi-
table.

In paragraph 118 of the Judgment, the Court states that the 26° line is

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not based on a “tacit agreement between the Parties — which, in view of
their more extensive and firmly maintained claims, would not be pos-
sible —”, nor does the Court hold “that they are debarred by conduct from
pressing claims inconsistent with such conduct on some such basis as
estoppel”. At the same time, however, the Court states that “it is evident
that the Court must take into account whatever indicia are available of the
line or lines which the Parties themselves may have considered equitable or
acted upon as such — if only as an interim solution”. I regret that I have
serious doubts with regard to the validity and equity of this line of rea-
soning. Why should the Court be bound to take into account “whatever
indicia are available”, especially when it seems clear that these “indicia”
were meant “only as an interim solution” especially when the Court in the
foregoing sentence holds that such arrangements are not a “tacit agree-
ment between the Parties” because they have made “extensive and firmly
maintained claims” to the opposite. The Court further holds that the
Parties cannot be “estoppe[d]” from objecting to such interim solution.

I respectfully submit that although I have great difficulties with the
Court’s statement that it “must take into account whatever indicia are
available”, my concern grows even deeper when such “indicia” are ele-
vated to the main solution governing this case. The adoption by the Court
of the 26° line, these so-called “indicia”, as the starting point for an
extensive part of the Tunisian coast, in spite of the fact that the coastline
veers sharply to the north, fundamentally affects the whole outcome. Both
on account of its effect on the outcome of the case and on account of the
underlying reasoning for the 26° line I am deeply concerned that this line is
discretionary rather than equitable.

In my respectful opinion, the petroleum concessions of the two Gov-
ernments in the area concerned cannot serve as “indicia” that the Parties
considered the 26° line as equitable.

The Tunisian Oil Decree of 13 December 1948, the Decree of 1 January
1953 and the Act of 15 March 1958 lay down a system whereby the
Government does not open up areas for prospecting and exploitation, but,
on the request of oil companies, concessions are granted. It was for the
companies themselves to define the desired perimeters of the concession
areas. (See Tunisian Reply, para. 1.07, and Tunisian Memorial, Vol. II,
Ann. 1.) The first offshore concession was granted to the Husky Oil
Company (Permit No. 3) on the basis of a request made in 1960 delimited
by longitudinal and latitudinal lines ; that is by grids or blocks. In the
north, this concession extends considerably eastward of a longitude from
Ras Ajdir. (Tunisian Reply, para. 1.09 and Map 1.01.) On the basis of a
request from the oil company SNPA-Rap in 1963, a concession was
granted to it in 1964/1965. This concession, called “No. 2 du Golfe de
Gabes”, is shown on Map 1.01 in the Tunisian Reply. According to
Annex | to the Tunisian Memorial, Volume II, this concession was granted
on 25 February 1964. The concession is also delineated by latitudes and
longitudes as set forth in the request for a concession. (The longitudes are

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east of the longitudes of Ras Ajdir.) On 21 October 1966, and again upon
the request of the oil companies concerned, the Tunisian Government gave
a complementary oil concession in the Gulf of Gabes, concession No. 4
delineated in the request. (Tunisian Memorial, Vol. II, Ann. 1.) It is de-
lineated by latitudes and longitudes. In the east, the northern part thereof
is delineated by a longitude considerably east of Ras Ajdir. In the south-
eastern part the concession area is delineated by a system of grids extend-
ing north-eastward more or less in the direction of 26°.

However, in 1968 (presumably in April, see hearing of 30 Septem-
ber 1981, p. 40), Libya granted a concession which exactly abutted and
fitted into the grid system Jaid down in Tunisian concession No. 4.
The exact date of this concession is not known according to the Tunisian
Memorial (Tunisian Memorial, para. 1.05, note 1).

The Tunisian Government never acquiesced in or accepted that the line
of this grid system was equitable. On the contrary, negotiations were
commenced immediately afterwards between the two countries on 15 July
1968 and were continuously carried on until 1977 when the Special Agree-
ment of 10 June 1977 was concluded.

According to the detailed “compte rendus” and notes produced as
Tunisian Memorial, Annexes 8-42, the Tunisian Party maintained and
proposed the median dividing line as the proper line of delimitation (see,
inter alia, Map, Ann. 24, Tunisian Memorial, Vol. ID, while the Libyan
Party maintained a line drawn due north from Ras Ajdir. These protracted
negotiations, starting immediately after the granting of the Libyan oil
concession in 1968, and lasting for almost nine years, clearly demonstrate
that neither of the two Parties acquiesced in any compromise line, or found
the 26° line equitable. In addition to the clear stand taken by the Parties
during these negotiations, the concessions granted by Tunisia in 1972 —
concession No. 9 of 21 March 1972 (see Tunisian Memorial, Vol. II,
Ann. 21) in 1976 — concession No. 12 of 18 March 1976 (ibid, Ann. 3),
and transfer of concessions 2 and 4 on 8 April 1974 (ibid, Ann. 4)
demonstrate that no acquiescence or indicia of equity can be assumed
as to a 26° line.

In describing the 26° line in paragraph 123, the Court states that “there
came into existence a modus vivendi concerning the lateral delimitation of
fisheries jurisdiction”. But a modus vivendi arrangement basically implies
two elements, namely, that the modus vivendi arrangement is provisional
pending a solution of the disagreement and that the arrangement is non-
prejudicial for the two Parties. A modus vivendi arrangement is aptly
described in Satow’s Guide to Diplomatic Practice (5th ed.) on page 262 as
follows :

“This is the title given to a temporary or provisional agreement,
usually intended to be replaced later on, if circumstances permit, by
one of a more permanent and detailed character. It may not, however,
always be designated as such : more often than not, what is in sub-

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307 CONTINENTAL SHELF (DISS. OP. EVENSEN)

stance a modus vivendi may be designated as a ‘temporary agreement’
999

or an ‘interim agreement’.
A more recent example

“of what is in substance a modus vivendi (although not so designated)
is the Exchange of Notes of 13 November 1973, constituting an
Interim Agreement in the Fisheries Dispute between the United
Kingdom Government and the Icelandic Government. This records
that, following discussion between the two Governments: ... the
following arrangements have been worked out for an interim agree-
ment relating to fisheries in the disputed area, pending a settlement of
the dispute and without prejudice to the legal position or rights of
either Government in relation thereto...” (ibid., p. 263).

In its Judgment in the Iceland Fisheries case the International Court of
Justice held as to this agreement :

“The interim agreement of 1973, unlike the 1961 Exchange of
Notes, does not describe itself as a ‘settlement’ of the dispute, and,
apart from being of limited duration, clearly possesses the character
of a provisional arrangement adopted without prejudice to the rights
of the Parties, nor does it provide for the waiver of claims by either
Party in respect of the matters in dispute.” (1 CJ. Reports 1974,

p. 18.)

21. In paragraph 85, the Court holds that it is unable to accept the
suggestion by Libya that the “boundary on the seaward side of Ras Ajdir
would continue, or could be expected to continue, in the northward
direction of the land frontier”. In paragraph 120, however, the Court takes
a somewhat different stand, namely that :

“the factor of perpendicularity to the coast and the concept of pro-
longation of the general direction of the land boundary are, in the view
of the Court, relevant criteria to be taken into account in selecting a
line of delimitation calculated to ensure an equitable solution”.

The Court is, of course, not unaware of the fact that the land boundary of
1910 is often curved and that it changes direction continuously. In order to
meet this weakness, which is inherent in most land boundaries, the Court
continues :

“and while there is undoubtedly room for difference of opinion
between geographers as to the ‘direction’ of any land frontier which is
not constituted by a straight line, or of any coast which does not run
straight for an extensive distance on each side of the point at which a
perpendicular is to be drawn, the Court considers that in the present
case any margin of disagreement would centre round the 26° line
which was identified both by the Parties and by the States of which
they are the territorial successors as an appropriate limit”.

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308 CONTINENTAL SHELF (DISS. OP. EVENSEN)

In my respectful opinion, it seems inconsistent in one paragraph to state
that an allegation to the effect that the land boundary should be projected
into the sea must be rejected but on the other hand to state that the
“concept of prolongation of the general direction of the land boundary” is,
in the view of the Court, one of the “relevant criteria to be taken into
account”. No legal principle exists to this effect. It has no foundation in
law of the sea conventions, in customary international law or in State
practice. On the contrary, a land boundary is as a rule drawn in conformity
with the special circumstances prevailing on land : geographical, histori-
cal, military, etc. To assume that the projection of such a land boundary
out to sea is suitable as a means of establishing an equitable dividing line
far out to sea is not reasonable. There are — of course — cases where States
have agreed to a projection of the land boundaries in limited areas, or have
agreed to use a straight line starting from the terminal point of their coast
following a longitude or latitude as the dividing line. But such examples are
not frequent and cannot serve as a basis for an alleged principle to this
effect.

It is not correct, as alleged by Libya, that the land boundary projected
seawards as a maritime boundary “is well established by State practice”. In
the Libyan Memorial, paragraphs 117-119, three examples are mentioned
of such alleged State practice, namely, the agreement of 4 June 1974
between Gambia and Senegal ; the agreement of 23 August 1975 between
Colombia and Ecuador and the agreement of 21 July 1972 between Brazil
and Uruguay. The agreement of 4 June 1974 between Gambia and Senegal
provides in Article 1 that the “maritime boundary” to the north follows the
parallel of latitude 13° 35’ 36” north (Limits in the Seas No. 85, pp. 2-3).
Article 2 provides that the maritime boundary to the south just for a short
distance (about a kilometre) runs in a south-westerly direction, then in a
northerly direction for a few hundred metres and then continues as a
parallel of latitude 13° 03’ 27” north.

The Agreement between Colombia and Ecuador of 23 August 1975
provides in Article 1 that the two countries have agreed :

“To determine, as a limit between their respective marine and
submarine areas which are now established or that may be established
in future, the line of the geographical parallel intersecting that point at
which the international terrestrial border line between Ecuador and
Colombia reaches the sea” (Limits in the Seas No. 69, p. 2),

that is, a boundary line stretching seaward 200 miles from west to east
along the parallel 1° 27’ 24” NL. It runs in an entirely different direction
from the land boundary, which runs in a.north-easterly direction.

Nor is the Agreement of 21 July 1972 between Brazil and Uruguay an
example of a land boundary projection. The maritime boundary line was

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309 CONTINENTAL SHELF (DISS. OP. EVENSEN)

fixed as a line “nearly perpendicular to the general line of the coast”. The
Foreign Ministers of the two countries stated in a declaration of 10 May
1969 that :

“the two Governments recognize ‘as the lateral limit of their respec-
tive maritime jurisdictions, the median line whose points are equi-
distant from the nearest points on the baseline’. Apparently the
Uruguayan-Brazilian Joint Boundary Commission decided that a
simplified and normal line was equitable to both sides.” (Limits in the
Seas No. 73, pp. 1-3.)

Another difficulty encountered in attempts to project a land boundary
seawards is plainly apparent in the present case. What segments of the land
boundary shall have a bearing on the direction of the seaward projection ?
Land boundaries are frequently irregular for a number of reasons. A land
boundary has minor and major curvatures, often a host of different direc-
tions along the various parts of the boundary. Is it solely the last segment of
the land boundary ending in the terminal point of the coast that is rele-
vant ? How large must this segment be to count in order to project a
dividing line perhaps over very extensive maritime areas ? Or should such a
projection be drawn from the average direction of the whole border ? It
seems to follow that at least in the present case as in a numer of others, the
seaward projection of the land boundary would be a rather haphazard
element to introduce as a criterion for drawing the line of delimitation.

22. In paragraph 120 the Court also touches upon “the factor of per-
pendicularity to the coast” as a relevant criterion “to be taken into account
in selecting a line of delimitation”. Admittedly States can agree to a
perpendicular where it seems convenient in the concrete case. But to rely
on it in complicated cases for difficult coastal areas, contrary to the views
of the parties concerned, seems unreasonable, for a number of reasons,
some of which will be given below.

First : neither the fourth Geneva Convention of 1958 nor the draft
convention on the Third Law of the Sea Conference of 1981 have adopted
the system of the perpendicular to the coast. The reasons seem obvious.
Geographical coastlines are very seldom straight lines for any considerable
distance. Consequently a perpendicular system might easily be inappli-
cable or unfair if only short straight coastlines could be applied as base-
lines for a perpendicular drawn far out at sea to 200-350 miles from the
point of departure on the coastline concerned.

In the present case where one actually has two opposing coastlines
facing each other, this is apparent. In practice a perpendicular on a
coastline would as often as not only be a perverted equidistance line, either
because the baseline from which it would be drawn would be rather short
or because the coasts concerned are so irregular as to call for the drawing of

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an imaginary straight baseline for the perpendicular disregarding to a
greater or lesser degree the geographical peculiarities of the concrete
coastline. In the present case, where the coastline is extremely complicated,
constructing a perpendicular on an imaginary straight baseline would
perhaps have to be turned the other way around, namely first to try to
imagine the direction of the “perpendicular” which would give an equi-
table dividing line and then to construct the “baseline” which should form
the basis for this allegedly reasonable perpendicular.

This would be especially true where the perpendicular is to serve as an
extensive dividing line for continental shelves or economic zones. It is in
reality a simplified or perverted equidistance principle. It can of course not
be excluded that a perpendicular may be acceptable in special cases but its
obvious weaknesses call for great caution.

In the present case, I respectfully submit first that the coastline on both
sides of Ras Ajdir is rather irregular so as to make it necessary to construct
the perpendicular on an imaginary straight baseline extending to an equal
distance on both sides of Ras Ajdir. This baseline would obviously be
rather short.

Secondly I submit that this perpendicular at an angle of some 26° could
only operate up to a limited distance from Ras Ajdir, at most out to the
outer limit of the 12-mile territorial sea. Up to this limit, it would also
approximate to an equidistance line. To extend it far out into the sea, for
example, as suggested by the Court up to 34° 10’ 30” NL would seem
inappropriate for several reasons. It would be inequitable to extend the
perpendicular some 50-60 miles seawards based on a short imaginary
baseline centred in Ras Ajdir. The further out the perpendicular extends
the more arbitrary it becomes, because the imaginary baseline will disre-
gard pertinent characteristics of the coast. These would become more and
more relevant the more the perpendicular deviates from the regional
characteristics on its straight course seawards. In my opinion, a possible
perpendicular to be drawn from the outer limit of the territorial sea must be
based on a different imaginary baseline drawn, for example, from the
easternmost point of the island of Jerba on the Tunisian side to a point at
an equal distance from Ras Ajdir on the Libyan side. This would give an
entirely different perpendicular, measured in degrees to the meridian, from
that measured from a baseline drawn from the very limited coastline in the
immediate vicinity of Ras Ajdir. These examples show the discretionary
directions of perpendiculars when they have to be measured from imag-
inary baselines — as in the present case — due to the irregular coastlines in
question.

Thus I feel that the observations made by the Court in paragraph 115 as
to the distorting effects “of the individual circumstances characterizing the
area” is equally applicable to the application of perpendiculars to the

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coast. The perpendicular to the coast becomes less and less suitable as a
line of delimitation the farther it extends from the coast. This is in my
respectful opinion apparent in the present case with the extension of the
perpendicular all the way up to 34° 10’ 30” NL.

23. The question of proportionality has been dealt with by the Court,
inter alia, in paragraphs 102-104 and paragraphs 130-131. I feel certain
misgivings both with regard to the manner and method applied by the
Court to ascertain whether a reasonable proportionality has been attained
and to its role in the present case.

I share the view of the Court in paragraph 103 of the Judgment that
proportionality may be a relevant factor ; perhaps not as an independent
source of law as to the delimitation but as a factor to evaluate whether
certain principles are equitable and whether the final solution is equi-
table.

The proportionality element was recognized as relevant by the Interna-
tional Court of Justice in the North Sea Continental Shelf case. Thus in
paragraph 101 (D) (3) of the Judgment the following reference to propor-
tionality was made as a factor “to be taken into account” in the course of
the negotiations :

“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” (I.CJ.
Reports 1969, p. 54).

The statement of the Court is interesting in several respects.

First, the Court emphasizes that it refers to a reasonable degree of
proportionality. Any attempt of a mathematical portioning of continental
shelves does not seem warranted by the Court’s findings.

Secondly, the element of proportionality is closely related to “a delimi-
tation carried out in accordance with equitable principles”.

Thirdly, the element of porportionality ought to bring about a reason-
able relation between “the continental shelf areas appertaining to the
coastal State and the length of its coast measured in the general direction of
the coastline”.

Fourthly, the Court emphasized an element which may be of concrete
interest in the present case, namely that “account [should be] taken for this
purpose of the effects, actual or prospective, of any other continental shelf
delimitations between adjacent States in the same region”.

Itis a fact that the continental shelf of the east-facing coast of Tunisia is
severely curtailed by the delimitation line drawn between Italy and Tunisia
and could possibly be similarly curtailed by further delimitations with
(Italy and) Malta. The north-east facing coast of Libya confronts con-

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siderably larger expanses of the Mediterranean and has thus the possibility
of much wider continental shelves.

The Court of Arbitration in the Delimitation of the Continental Shelf
Decision of 1977 has, in paragraph 101 (Miscellaneous No. 15 (1978),
pp. 60-61), interesting observations with regard to the element of propor-
tionality and its role in the delimitation of continental shelves. The find-
ings of the Court of Arbitration contain four main observations on pro-
portionality.

(a) The Court of Arbitration states as its first consideration that :

“it is disproportion rather than any general principle of proportion-
ality which is the relevant criterion or factor. The equitable delimi-
tation of the continental shelf is not, as this Court has already
emphasized in paragraph 78, a question of apportioning — sharing out
— the continental shelf amongst the States abutting upon it. Nor isita
question of simply assigning to them areas of the shelf in proportion
to the length of their coastlines ; for to do this would be to substitute
for the delimitation of boundaries a distributive apportionment of
shares.”

(b) As a second consideration, the Court of Arbitration emphasized :

“Furthermore, the fundamental principle that the continental shelf
appertains to a coastal State as being the natural prolongation of its
territory places definite limits on recourse to the factor of propor-
tionality.”

(c) In this connection the Court of Arbitration further stated :

“As was emphasized in the North Sea Continental Shelf cases (I.C_J.
Reports 1969, para. 91), 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 config-
urations or features in situations where otherwise the appurtenance of
roughly comparable attributions of continental shelf to each State
would be indicated by the geographical facts.”

(d) Finally, the Court of Arbitration concluded its analysis of propor-
tionality as follows :

“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.)

In applying its proportionality test, the Court states in paragraph 104 of
the Judgment that

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313 CONTINENTAL SHELF (DISS. OP. EVENSEN)

“the element of proportionality is related to lengths of the coasts of
the States concerned, not to straight baselines drawn round those
coasts”.

In paragraph 131, the Court in applying this criterion finds that the
“relevant coastline of Libya stands in the proportion of approximately
31:69 to the relevant coastline of Tunisia”. If a straight-line coastal
front is used

“the coastal front of Libya, represented by a straight line drawn from
Ras Tajoura to Ras Ajdir, stands in the proportion of approxi-
mately 34 : 66 to the sum of the two Tunisian coastal fronts repre-
sented by a straight line drawn from Ras Kaboudia to the most
westerly point of the Gulf of Gabes, and a second straight line from
that point to Ras Ajdir”.

The Court does not give details as to how these mathematical proportions
have been arrived at. Does the proportion 31 : 69 follow all the sinuosities
of the coast ? Does the second proportion 34 : 66 straight-line coastal front
cut inland so as to totally disregard the two promontories in the south of
the Tunisian coast including the promontories of Zarzis and does it also
disregard the island of Jerba? In either of these two proportions, the
Kerkennah Archipelago with its long coastlines seems to be totally disre-
garded. No details are given about the low-tide elevations or the island of
Kneis.

likewise beg to disagree with the Court as to the position the Court has
chosen with regard to “internal waters” and their effect on proportionality.
In paragraph 104, the Court states that it “is not convinced by the Tunisian
contention that the areas of internal and territorial waters must be
excluded from consideration”. Although the Court reaffirms that in the
legal sense the continental shelf does not include the sea-bed of internal
waters and the territorial sea, the Court holds in paragraph 131 that such
areas must be included for the assessment of proportionality. I respectfully
submit that such a notion runs contrary to the very concept of continental
shelf and is based neither on positive law nor on equity. This seems
especially apparent with regard to the internal waters in this case.

In the legal and political sense, internal waters are in principle equated
with the land territory. A State exercises its sovereignty over internal
waters in the same manner and ordinarily on the basis of the same laws as
are applicable to the land domain. In the present case, the geographical and
physical facts should furthermore be taken into consideration. In vast
areas of the Gulf of Gabes as well as in the areas surrounding the Ker-
kennah Archipelago, the island of Jerba and the two promontories of
Zarzis, the waters are so shallow as to form an intermediary zone between
land and sea. In these vast areas, the depth seldom exceeds 3-4 metres and
they form dry land at low tide. The economic exploitation of these areas is

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likewise a hybrid between aquaculture and agriculture. In these areas, it is
obvious that oil drilling, for example, cannot employ ordinary maritime oil
rigs such as semi-submersible platforms, drilling vessels or floating jack-up
platforms. Should such areas be considered part of a continental shelf for
any purpose ? Furthermore, the 10-metre and 20-metre isobaths extend
seawards for a considerable distance in the Gulf of Gabes. Some of these
shallow areas extend even beyond the straight baselines established by
Tunisia by Law No. 73-79 of 2 August 1973. In view of these considera-
tions of fact and law, is it really in accordance with the principles and rules
of international law or equity to base proportionality considerations on the
areas of Tunisia’s internal waters even in areas where land drilling equip-
ment would have to be used for oil drilling ? It seems perhaps to me that the
Court here loses sight of the very concept of continental shelf as a maritime
zone with limited functional sovereignty for the coastal States as opposed
to the full sovereignty it exercises over its territorial sea not to speak of its
areas of internal waters.

In justifying the use of the proportionality test, the Court applies as one
reason that “one must compare like with like” (Judgment, para. 130). In
my respectful opinion, the Court has applied just the opposite approach at
least in including the internal waters of the Gulf of Gabes in the propor-
tionality test.

I further respectfully submit that the Court in the present case seems to
have gone much farther in almost elevating the proportionality test —
applied as a mathematical formula — to the status of international law in its
search for legal arguments compared to the more modest use of the pro-
portionality test made by the Court in its Judgment of 1969 in the North
Sea Continental Shelf case, and by the Court of Arbitration in its Decision
of 1977 in the Delimitation of the Continental Shelf case. In my opinion,
the 1969 Judgment and the 1977 Decision struck the proper balance be-
tween proportionality and the applicable principles of international law.

24. In paragraphs 102 ff. in the Judgment the Court touches upon the
question of the straight baselines established by Tunisia. In paragraph 22
of my dissenting opinion, I have expressed my firm disagreement with the
Court’s findings in paragraphs 102 ff. that Tunisian internal waters and
territorial sea should be included in the relevant areas for the application of
a proportionality test. However, the validity of the straight baselines
applied by Tunisia in the Kerkennah area may have considerable bearing
on the question of the inclusion of the internal waters of Tunisia in the
areas relevant for the proportionality test. Therefore, I shall dwell briefly
on this issue.

By Law No. 73-49 of 2 August 1973, the Tunisian Government provided
straight baselines for measuring its 12 miles territorial sea for certain areas
along its coasts ; namely, those parts thereof that are fringed by islands,
islets and shoals (the Kerkennahs) and the Bay of Tunis and Gulf of Gabes.
(See Annex 86 to the Tunisian Memorial.) A continuous set of straight

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baselines is drawn from Ras Kaboudia to the shoals fringing the Kerken-
nah Islands, continuing to Ras-Es-Moun on the Isles of Gharbi in the
Kerkennahs and then a straight baseline across the Gulf of Gabes to Ras
Turques.

Admittedly the outer limit of an Exclusive Economic Zone as well as a
200 miles continental shelf under Article 76 of the draft convention must
be based on “the baselines from which the breadth of the territorial sea is
measured”.

The baselines laid down in the Act of 2 August 1973 are not contrary to
the prevailing rules of international law. The starting point is that a coastal
State has the sovereign right to establish unilaterally straight baselines for
measuring its territorial sea and its economic zones, etc. It does not need
any agreement with or acceptance by other countries to do so. But if such
baselines are contrary to international law other States may protest.
According to a very extensive State practice, the Judgment in the Fisheries
case of 18 December 1951 by the International Court of Justice (C.J.
Reports 1951, pp. 116 ff.) as well as the provisions in the Convention on the
Territorial Sea and the Contiguous Zone of 29 April 1958 (the First
Geneva Convention), Article 4 ff., and the draft convention on the Law
of the Sea of 28 August 1981, Article 7 ff. — which actually codify the
governing principles concerning straight baselines — it seems clear that the
straight baselines of the 1973 enactment are not contrary to international
law.

As a Starting point, Article 7, paragraph 1, of the draft convention of
1981 may be quoted. It is taken verbatim from Article 4, paragraph 1, of
the First Geneva Convention of 1958 :

“Tn localities where the coastline is deeply indented and cut into, or
if there is a fringe of islands along the coast in its immediate vicinity,
the method of straight baselines joining appropriate points may be
employed in drawing the baseline from which the breadth of the
territorial sea is measured.”

In connection with the particular geographical formations constituting
the low-tide elevations lying seaward of the Kerkennah Islands and the
Island of Jerba it may be of interest to note the new Article 6 introduced in
the draft convention of 1981 concerning reefs to the following effect :

“In the case of islands situated on atolls or of islands having
fringing reefs, the baseline for measuring the breadth of the territorial
sea is the seaward low-water line of the reef, as shown by the appro-
priate symbol on charts officially recognized by the coastal State.”

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Paragraph 4 of Article 7 provides that :

“Straight baselines shall not be drawn to and from low-tide eleva-
tions, unless lighthouses or similar installations which are perma-
nently above sea level have been built on them or except in instances
where the drawing of baselines to and from such elevations has
received general international recognition.”

Light buoys seem to have been positioned on most of these low-tide
elevations. In any event, the stationary fishing gear which has been placed
on them in abundance and which is permanently above sea-level should be
taken into consideration in this context. It is further an indisputable fact
that new technology has made the installation of light beacons a simple
and inexpensive operation ; and they can be installed within hours.

Further, paragraph 5 of Article 7 is highly valid in this context, it pro-
vides :

“Where the method of straight baselines is applicable under para-
graph 1, account may be taken in determining particular baselines, of
economic interests peculiar to the region concerned, the reality and
the importance of which are clearly evidenced by long usage.”

The historic and economic facts of the region concerned fully meet these
requirements, as is set forth in the written and oral proceedings (see, inter
alia, the Tunisian Memorial, paras 3.17-3.31 and 4.43 ff.).

Furthermore, the straight baselines drawn around the Kerkennah Archi-
pelago are modest in length. The longest, the northernmost one, seems to
be some 15 miles long according to nautical charts. The others are shorter ;
some of them down to a couple of miles. Compared to State practice
throughout the world, these baselines are conservative both with regard to
length and with regard to mode of application.

The same conclusions are applicable to the straight baseline across the
Gulf of Gabes. The length of this baseline is some 45/46 miles from
Ras-Es-Moun to Ras Turques according to the available nautical charts.

In this context it should be borne in mind that — although the starting
point for straight baselines across the “natural entrance points” of a bay
should not exceed 24 miles according, to Article 10, paragraph 4, of the
draft convention of 1981 — Article 10, paragraph 6, has very important
modifications to this starting point. It states :

“The foregoing provisions do not apply to so-called ‘historic bays’,
or in any case where the system of straight baselines provided for in
Article 7 is applied.”

Both these conditions are applicable to the straight baseline drawn
across the Gulf of Gabes :

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(1) It is a natural continuation of the system of straight baselines drawn
outside the Archipelago of Kerkennah continuing to the Island of
Jerba and then on to the mainland.

(2) The very particular economic interests of the local population in these
marine areas, especially in connection with their traditional fisheries
based on stationary fishing gear or traditional fishing banks, which
over the ages have assumed the character of proprietary rights, have
been demonstrated. It seems equally clear that the Gulf of Gabes has
the characteristics of an historic bay.

Furthermore, the very special features of the area in question with the
combination of densely populated islands such as the Kerkennah Archi-
pelago, the Islands of Jerba and of Kneiss, as well as the particular geo-
graphical features of the low-tide elevations of the region combined with
the most important indentation (the Gulf of Gabes) of these coastlines, are
clearly “relevant circumstances which characterize the area” (see Art. 1 of
the Special Agreement). In addition, these waters are so shallow that they
to a large extent are considered as appurtenances to the land territory by
the local population.

25. In the pleadings, it was maintained that a line of delimitation should
not pass in front of a Party’s coasts.

Of course, the drawing of frontiers both on land and at sea must always
entail restrictions on the extensions of a country’s territorial expanse. So
the frontal collision or restriction would be inherent in the drawing of lines
of delimitation.

In the present case, the coastlines of the two countries lie opposite to
each other at an approximate angle of 90° or more. In such a case, the
delimitation line would necessarily extend seawards in a direction where it
would front both countries at least in a macrogeographical aspect. It seems
equally clear that one of the Parties cannot invoke the “frontal” argument
in such a manner as to win acceptance for a solution whereby the dividing
line should solely “front” the other country.

I respectfully submit that this frontal line argumentation could be a
measure of the equity of the results arrived at. It seems that the line
proposed in the operative part of the Judgment will be drawn much closer
to the coasts of Tunisia than those of Libya. As a matter of fact, the line
proposed by the Court — as appears from Map No. 3 attached to this
Judgment — is in its whole length almost twice as close to the coasts of
Tunisia as to the coasts of Libya. This result does not seem equitable.
Actually, the Court here seems to attribute some inferior rank to the coasts
of Tunisia.

The “coastal front” argument would in my respectful submission be
more equitably met in the present case by the application of an adjusted
equidistance line approach.

26. In paragraph 107 of the Judgment, the Court states that “As to the
presence of oil-wells in an area to be delimited, it may, depending on the
facts, be an element to be taken into account in the process of weighing all

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relevant factors to achieve an equitable result”. However, it seems to
appear clearly from Map 85 presented by the Tunisian Party during the
oral pleadings (see also Libyan Counter-Memorial, Vol. 3, Ann. 9), that at
least one well drilled in good faith by Tunisia, without objections it seems,
namely the Jarrafa No. 1 with co-ordinates 13° 4’ 23.6” E longitude and
34° 31’ 28.8” N latitude is situated well inside the Libyan part of the
continental shelf based on the 52° line of delimitation. The Court seems to
have completely disregarded the existence of this well in reaching its
solution based on equity, which seems perhaps to be contrary to the
starting point taken by the Court in the above-mentioned quotation.

A more serious question to me, however, is to what extent economic
considerations should lead to the acceptance of faits accomplis ; that is to
say : should the dividing line be drawn in such a manner as to recognize
unilaterally granted concessions by one of the Parties to the detriment of
the other ? Or wells drilled by either Party in an area in dispute ? Such an
approach would possibly be contrary to international law as well as to
equity. The delimitation of the continental shelf between adjacent (and
opposite) States is, in principle, to be determined by agreement between
the Parties, which is just the opposite of unilateral action either in the form
of unilateral legislative actions, the unilateral granting of concessions in a
disputed area, or, more serious still, by drilling wells and starting up
petroleum production in disputed areas. Any acceptance by the Court that
the drilling of oil-wells, in an area which was disputed, should have any
relevance for the delimitation, would really be an invitation to Parties to
violate certain basic trends laid down in the Fourth Geneva Convention of
1958 and the draft convention of 1981, and might invite aggressive atti-
tudes, through the staking out of claims, instead of conciliatory ap-
proaches.

Articles 74 and 83 of the draft convention on the Law of the Sea, on
delimitation of the continental shelf (economic zone) between States with
opposite or adjacent coasts, have very interesting provisions in para-
graph 3, as follows :

“Pending agreement as provided for in paragraph 1, the States
concerned, in a spirit of understanding and co-operation, shall make
every effort to enter into provisional arrangements of a practical
nature and during this transitional period, not to jeopardize or
hamper the reaching of the final agreement. Such arrangements shall
be without prejudice to the final delimitation.”

Notice should also be taken of Article 77, paragraph 3, of the draft
convention of 1981. It provides :

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319 CONTINENTAL SHELF (DISS. OP. EVENSEN)

“The rights of the coastal State over the continental shelf do not
depend on occupation, effective or notional, or on any express proc-
lamation.”

This provision, taken verbatim from Article 2, paragraph 3, of the
Fourth Geneva Convention of 1958 is not without importance in the
present context. Positive actions are not required for a coastal State to
possess a continental shelf. Vice versa, positive actions by another State
should not easily deprive a coastal State of its rights. At the least, such
action should not be encouraged.

CONCLUSIONS

For the reasons set forth in the foregoing, I have, with deep regret, come
to the conclusion that I cannot concur in a number of the main reasons and
in the conclusions of the Court.

Among my concerns are the following :

Main relevant circumstances characterizing the area have either been
disregarded or not given the weight which should have been attributed to
them. Considerations of equity have been allowed to operate in a void,
disregarding the necessary connection between such equity considerations
and recognized — albeit non-compulsory — principles and rules of inter-
national law, thus blurring the distinction between principles of equity as
part of the international legal order and considerations ex aequo et bono.
Nor am I convinced that the equity considerations invoked lead to the
desired results of an equitable solution. Further, I am of the opinion that
the Court has not paid sufficient regard to the equidistance principle as one
of the possible principles to be applied to this delimitation. In my view, the
equidistance principle would, in the present case — adjusted or tempered
by considerations of equity — have given a more equitable and a more
verifiable solution than the line given by the Court. The Court should at
least have endeavoured to give a detailed analysis of an equidistance line
adjusted by equity considerations, and why such a line would lead to
inequitable results. In my respectful opinion, the Court has not paid
sufficient attention to the new accepted trends in the Third Law of the Sea
Conference. Among such trends is the development of the concept of the
200-mile Exclusive Economic Zones. In basing its line of delimitation to a
great extent on aspects of oil exploitation and oil concessions the Court
seems to have disregarded the obvious advisability of having identical lines
of delimitation for the continental shelf and the 200-mile Exclusive Eco-
nomic Zone.

_ I realize the futility and perhaps even the inappropriateness of suggest-
ing an alternative line of delimitation based on an adjusted equidistance

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principle. Consequently, I shall refrain from so doing. I believe, however,
that such a line might have been more easily founded, and have been more
appropriate as a dividing line in the future establishment of Exclusive
Economic Zones in the area.

Notwithstanding the several respects in which I find myself unable to
agree with the Judgment of the Court, including the operative paragraphs
thereof, I recognize that the Court has endeavoured to effect a delimitation
which in its view is responsive to search for an equitable solution. I further
recognize that in its decision the Court has endeavoured to draw a line
which divided the disputed areas between the two Parties. Consequently, I
express the fervent hope that the Court’s Judgment, which of course is
binding upon the two Parties by virtue of the United Nations Charter, the
Statute of the Court and the commitments of the two Parties, will be
conducive to further enhancing the friendship and good neighbourliness
between the two Parties and peaceful and progressive developments on our
troubled globe.

In addition to my dissenting opinion set forth in the foregoing, I res-
pectfully venture to present the following thoughts to the two Parties.

The rapid development over the last few decades in the field of the
international law of the sea — following the staggering revolution in marine
technology, as in technology as a whole — entails that vast areas of the
marine environment must be subjected to the functional, limited sover-
eignty of the adjacent coastal State. The need for drawing up new maritime
boundaries between lateral or opposite neighbouring States — often
hundreds of miles seawards — is obviously inherent in this development. It
is equally obvious that these new challenges must cause certain difficulties
and even political strains between the best of neighbours, not because of
their lack of will to find just and equitable solutions to their problems, but
because of the enormity and uniqueness of the problems themselves.

Consequently, I beg to present the following thoughts for their consi-
deration. I feel strongly that : There may be other elements in the delimi-
tation process and in the delimitation results than the bare drawing of
lines : elements that may make a line or a system of delimitation more just
and equitable than otherwise might have been the case.

In the present case, the underlying immediate concerns are first and
foremost petroleum exploitation. But it is a well-known fact that petro-
leum exploitation is a mixture of know-how and luck. The drawing of a line
of delimitation between States may, as far as oil potentials are concerned,
be a pure gamble, an accidental fact which may leave rich structures on one
side of the line and barrenness on the other.

An arrangement for joint exploration, user or even joint jurisdiction
over restricted overlapping areas may be a corollary to other equity con-

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siderations. It was not alien to this Court in the North Sea Continental Shelf
cases, as is demonstrated in the dispositif by the Court in paragraph 101
(C), subparagraph (2), page 53, and also by paragraphs 97 and 99 of the
Judgment U.C.J. Reports 1969, pp. 51-52).

Here the Court touched upon a possible solution with regard to over-
lapping areas. If the Parties were not able to agree on a dividing line, the
Courts proposal was to divide the overlapping area “equally”, unless the
Parties “decide on a régime of joint jurisdiction, user, or exploitation for
the zones of overlap or any part of them”.

My starting point for such a proposal of joint exploitation would be an
adjusted equidistance line starting at the point where the 26° line from Ras
Ajdir intersects the 12-mile territorial sea limit. I venture to propose an
adjusted line of delimitation veering from this point in a direction some
46-47° (north-east).

In addition, the following system of joint exploitation of petroleum
resources may be indicated. On both sides of the straightened line a line
veering some 10°-15° from the delimitation line should be drawn. The
areas thus indicated should be of approximately the same size. The two
areas thus indicated should constitute a joint exploitation zone.

For this joint exploitation zone, the Parties should establish a joint
policy of exploration and exploitation. The following modest suggestion
may be made as to such policies.

In the area lying on the Tunisian side of the line of delimitation, Tuni-
sian legislation, oil policy and administration should govern the petroleum
activities. In the area lying on the Libyan side, Libyan legislation, oil policy
and administration should prevail.

Each Party should have the possibility to participate in the petroleum
activities in the restricted area of the other Party as defined above, with 50
per cent participation either directly or through concessionaires. The
national Party should have the right to be the operator unless otherwise
agreed.

Each Party would have to pay the costs involved in the exploration and
exploitation in accordance with the percentage of his participation.

The Parties should establish a permanent consultative committee for
activities in the joint exploitation areas.

In case disagreements!should| arise out of activities in the aforemen-
tioned areas which the Parties were not able to solve by agreement, con-
ciliation procedures and arbitration procedures should be provided for.

Likewise, unitization procedures should be provided in order to regulate
the exploitation and the shared ownership where a petroleum deposit
either straddles the line of delimitation or the outer lines restricting the
zones of joint exploration.

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In the North Sea Continental Shelf case, the Court deals with the prob-
lems of unitization in paragraph 97 as follows :

“Another factor to be taken into consideration in the delimitation
of areas.of continental shelf as between adjacent States is the unity of
any deposits. The natural resources of the subsoil of the sea in those
parts which consist of continental shelf are the very object of the legal
régime established subsequent to the Truman Proclamation. Yet it
frequently occurs that the same deposit lies on both sides of the line
dividing a continental shelf between two States, and since it is possible
to exploit such a deposit from either side, a problem immediately
arises on account of the risk of prejudicial or wasteful exploitation by
one or other of the States concerned. To look no further than the
North Sea, the practice of States shows how this problem has been
dealt with, and all that is needed is to refer to the undertakings entered
into by the coastal States of that sea with a view to ensuring the most
efficient exploitation or the apportionment of the products extracted
— (see in particular the agreement of 10 March 1965 between the
United Kingdom and Norway, Article 4 ; the agreement of 6 October
1965 between the Netherlands and the United Kingdom relating to
‘the exploitation of single geological structures extending across the
dividing line on the continental shelf under the North Sea’ ; and the
agreement of 14 May 1962 between the Federal Republic and the
Netherlands concerning a joint plan for exploiting the natural
resources underlying the area of the Ems Estuary where the frontier
between the two States has not been finally delimited). The Court
does not consider that unity of deposit constitutes anything more than
a factual element which it is reasonable to take into consideration in
the course of the negotiations for a delimitation. The Parties are fully
aware of the existence of the problem as also of the possible ways of
solving it.” (CJ. Reports 1969, pp. 51-52.)

In his interesting separate opinion, Judge Jessup dwells on the questions
of co-operation and unitization in some detail (pp. 81-83 of the Judgment).
T respectfully share his views that : even if the principle of co-operation “is
not considered to reveal an emerging rule of international law, (it) may at
least be regarded as an elaboration of the factors to be taken into account
in the negotiations now to be undertaken by the Parties”.

There are a number of examples where the question of unitization has
been dealt with expressly in agreements on the delimitation of the conti-
nental shelf. Some are mentioned in the Court’s Judgment of 1969 in the
North Sea Continental Shelf cases, on page 52.

Thus, in the Agreement between the United Kingdom and Norway of
10 March 1965, it is provided in Article 4:

“If any single geological petroleum structure or petroleum field, or

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any single geological structure or field of any other mineral deposit,
including sand or gravel, extends across the dividing line and the part
of such structure or field which is situated on one side of the dividing
line is exploitable, wholly or in part, from the other side of the dividing
line, the Contracting Parties shall, in consultation with the licensees, if
any, seek to reach agreement as to the manner in which the structure
or field shall be most effectively exploited and the manner in which
the proceeds deriving therefrom shall be apportioned.”

Similar provisions were included in the Agreement on the delimitation
of the continental shelf between Sweden and Norway of 24 July 1968.

A somewhat firmer commitment was made in the Agreement between
Denmark and Norway of 8 December 1965. Article 4 of this Agreement
provides that in such cases a unitization agreement “shall be concluded”
upon the request of one of the contracting parties. Identical provisions are
included in the delimitation Agreement between the Faroes and Norway of
15 June 1979.

It seems advisable that the Parties in the present case in the agreement
referred to in Article 2 of the Special Agreement should include provisions
on unitization in cases where a petroleum field is situated on both sides of
the dividing line or the dividing line for the above proposed zone of joint
exploitation.

(Signed) Jens EVENSEN.

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