INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

APPLICATION FOR REVISION AND
INTERPRETATION OF THE JUDGMENT OF
24 FEBRUARY 1982 IN THE CASE CONCERNING
THE CONTINENTAL SHELF (TUNISIA/LIBYAN
ARAB JAMAHIRIYA)

(TUNISIA v. LIBYAN ARAB JAMAHIRIYA)

JUDGMENT OF 10 DECEMBER 1985

1985

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

DEMANDE EN REVISION |
ET EN INTERPRETATION DE L’ARRET
DU 24 FEVRIER 1982
EN L’AFFAIRE DU PLATEAU CONTINENTAL
(TUNISIE/JAMAHIRIYA ARABE LIBYENNE)

(TUNISIE c. JAMAHIRIYA ARABE LIBYENNE)

ARRET DU 10 DECEMBRE 1985
Official citation :

Application for Revision and Interpretation of the Judgment of
24 February 1982 in the Case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab
Jamahiriya), Judgment, I.C.J. Reports 1985, p. 192.

Mode officiel de citation :

Demande en revision et en interprétation de l'arrêt du 24 février 1982
en l’affaire du Plateau continental (Tunisie/Jamahiriya arabe libyenne)
(Tunisie c. Jamahiriya arabe libyenne), arrêt, C.I.T. Recueil 1985, p. 192.

Sales number 5 17
Ne de vente :

1985

192

INTERNATIONAL COURT OF JUSTICE
YEAR 1985

10 December

General List
No. 71

10 December 1985

APPLICATION FOR REVISION AND
INTERPRETATION OF THE JUDGMENT OF
24 FEBRUARY 1982 IN THE CASE CONCERNING
THE CONTINENTAL SHELF (TUNISIA/LIBYAN
ARAB JAMAHIRIYA)

(TUNISIA v. LIBYAN ARAB JAMAHIRIYA)

Single application combining requests for revision, interpretation and “correction
of an error” — Procedure.

Request for revision of a judgment — Admissibility — Article 61 of the Statute —
Discovery of “new fact” — Whether “new fact” known to party claiming revision —
Means available to that party to ascertain fact, which it was in its own interests to do
— Whether fact was “of such a nature as to be a decisive factor”.

Request for interpretation of a judgment — Article 60 of the Statute — Whether
jurisdiction affected by existence of Special Agreement providing for recourse to the
Court by Parties jointly to request “explanations and clarifications” — Admissibility
of request for interpretation — Real purpose of request — Existence of dispute as to
meaning or scope of judgment — Significance of principle of res judicata.

Request for correction of an error found to be without object.

Request for interpretation concerning reference to “the most westerly point on the
shoreline (low-water mark) of the Gulf of Gabes” — Irrelevance of presence of wadi
at approximately latitude referred to.

Request that the Court order an expert survey.

JUDGMENT

Present: President NAGENDRA SINGH; Vice-President DE LACHARRIERE ;
Judges LACHS, RuDA, ELIAS, ODA, AGO, SETTE-CAMARA, SCHWEBEL,
MBAYE, Bepyaoul, Ni; Judges ad hoc BASTID, JIMENEZ DE ARE-
CHAGA ; Registrar TORRES BERNARDEZ.
193 APPLICATION FOR REVISION (JUDGMENT)

In the case concerning the application for revision and interpretation of the
Judgment of 24 February 1982,

between

the Republic of Tunisia,
represented by

Mr. Habib Lazreg, D.Sc. (geophysics), Geologist, Ministry of the National
Economy, Chairman and Managing Director of ETAP,

as Agent,

Mr. Yadh Ben Achour, Professor at the Faculty of Law, Politics and Eco-
nomics, Tunis,

as Co-Agent and Counsel,

Mr. René-Jean Dupuy, Professor at the Collge de France, Member of the
Institute of International Law,

Mr. Michel Virally, Professor of the University of Law, Economics and Social
Sciences, Paris, and at the Graduate Institute of International Studies,
Geneva, Member of the Institute of International Law,

as Counsel and Advocates,

Mr. M. Mouldi Marsit, Director of Conventions in the Office of the Prime
Minister,

as Legal Adviser,
Commander Abdelwahab Layouni, Ministry of Defence (Navy),

as Technical Adviser,
and

the Socialist People’s Libyan Arab Jamahiriya,
represented by
H.E. Mr. Kamel H. El Maghur,
as Agent,
Mr. Ibrahim Abdul Aziz Omar, Counsellor at the People’s Bureau for Foreign
Liaison,
as Counsel,
Mr. Derek W. Bowett, C.B.E., Q.C., LL.D., F.B.A., Whewell Professor of
International Law at the University of Cambridge,
Mr. Jean-Pierre Quéneudec, Professor of International Law at the University
of Paris I,
Sir Francis A. Vallat, G.B.E., K.C.M.G., Q.C., Professor Emeritus of Inter-
national Law at the University of London,

Mr. Claude-Albert Colliard, Honorary Dean, Professor Emeritus of Interna-
tional Law at the University of Paris I,

as Counsel and Advocates,
194 APPLICATION FOR REVISION (JUDGMENT)

Mr. Rodman R. Bundy,
Mr. Richard Meese,
Mr. Walter D. Sohier,

as Counsel,

THE COURT,

composed as above,
after deliberation,

delivers the following Judgment :

1. On 27 July 1984 the Agent of the Republic of Tunisia filed in the Registry of
the Court an Application, dated 17 July 1984, instituting proceedings in reliance
on Articles 60 and 61 of the Statute of the Court and Articles 98, 99 and 100 of the
Rules of Court. Tunisia thereby requested the revision of the Judgment given by
the Court on 24 February 1982 in the case concerning the Continental Shelf
(Tunisia/ Libyan Arab Jamahiriya) (1.C.J. Reports 1982, p. 18), the interpretation
of that Judgment, and the correction of what was regarded by Tunisia as an error
in it.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was at
once communicated to the Government of the Libyan Arab Jamahiriya, and at
the same time the Parties were informed of the time-limit fixed by the Vice-
President of the Court for the filing by the Libyan Arab Jamahiriya of written
observations on the application and in particular on the admissibility thereof as
provided in Article 99, paragraph 2, of the Rules of Court. In accordance with
paragraph 3 of Article 40 of the Statute, all other States entitled to appear before
the Court were notified of the Application.

3. On 15 October 1984, within the time-limit fixed, the Government of the
Libyan Arab Jamahiriya filed in the Registry its written observations on the
Tunisian Application. On 13 June 1985, after ascertaining the views of the
Parties, the Court decided, pursuant to Article 53 of the Rules of Court, that
copies of the pleadings in the case should be made accessible to the public on the
opening of the oral proceedings.

4. Since the Court did not include upon the Bench a judge of the nationality of
either party, each party exercised its right under Article 31, paragraph 3, of the
Statute to choose a person to sit as judge in the case. Tunisia chose Mrs. Suzanne
Bastid and the Libyan Arab Jamahiriya chose Mr. Eduardo Jiménez de
Aréchaga.

5. At public hearings held from 13 to 18 June 1985, the Court heard the oral
argument of the Parties on the admissibility of the Application, and on the
questions of interpretation and the correction of an error ; it was addressed by
the following representatives of the Parties :

For Tunisia : Mr. Habib Lazreg,
Mr. Yadh Ben Achour,
Professor Michel Virally,
Professor René-Jean Dupuy.

For the Libyan Arab Jamahiriya: H.E. Mr. Kamel H. El Maghur,
Sir Francis A. Vallat, Q.C.,
Professor Jean-Pierre Quéneudec,
Professor Derek W. Bowett, Q.C.
195 APPLICATION FOR REVISION (JUDGMENT)

During the hearings, questions were put to the Parties by Members of the Court,
and answered either orally during the hearings or in writing, pursuant to
Article 61 of the Rules of Court.

6. In the course of the proceedings the following submissions were presented
by the Parties :

On behalf of Tunisia,
in the Application :
“May it please the Court to adjudge and declare :
1. As regards the first sector of the delimitation :

That there is a new fact of such a character as to lay the Judgment open to
revision within the meaning of Article 61 of the Statute of the Court ;

That the application for revision submitted by the Tunisian Republic is
on that account admissible.

Altogether subsidiarily :

That there is cause to construe the Judgment of 24 February 1982 and to
correct an error ;

That 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° 50’ 17” N, 11° 59 53” E, and 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 continental shelves is to run north-east
through the point 33° 50’ 17” N, 11° 59’ 53” E, thus on that same bearing,
to the point of intersection with the parallel 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 shoreline (low-water mark) of the Gulf of
Gabes.

2. As regards the second sector of the delimitation :

That it will be for the experts of both Parties to establish the exact
co-ordinates of the most westerly point of the Tunisian coastline between
Ras Kaboudia and Ras Ajdir, or in other words the most westerly point of
the shoreline (low-water mark) of the Gulf of Gabes, making use of all
available cartographic documents and, if necessary, carrying out an ad hoc
survey in loco.”

At the hearing of 14 June 1985 (afternoon) :
“May it please the Court to adjudge and declare :
1. As regards the first sector of delimitation :

That there is a new fact of such a character as to lay the Judgment open to
revision within the meaning of Article 61 of the Statute of the Court.
That the application for revision submitted by the Tunisian Republic is
on that account admissible.
Altogether subsidiarily :

That there is cause to construe the Judgment of 24 February 1982 and to
correct an error.
196 APPLICATION FOR REVISION (JUDGMENT)

As regards the interpretation :

That in the first sector, the one closer to the coasts 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 frontier point of Ras Ajdir and aligned on the south-eastern boundary of
Tunisian petroleum concession ‘Permis complémentaire offshore du golfe de
Gabés’ (21 October 1966), in such a way as to avoid, as far as is at all possible,
any encroachment on the area defined by that concession ; from the inter-
section point so determined, the line of delimitation between the two con-
tinental shelves is to run north-east on the same bearing to the point of
intersection with the parallel through the most westerly point of the Tuni-
sian coastline between Ras Kaboudia and Ras Ajdir, that is to say, the most
westerly point on the shoreline (low-water mark) of the Gulf of Gabes.

The co-ordinates of the point at sea through which the line thus deter-
mined must pass, and the bearing of that line east of north, as they appear in
the operative provisions of the Judgment, were given only by way of indi-
cation. It will be for the experts of the two Parties to calculate them
accurately.

As regards the correction of an error :

That there is cause to replace the co-ordinates 33° 55’ N, 12° E, men-
tioned in section C (2) of paragraph 133 of the Judgment of 24 February
1982, with the co-ordinates 33° 50’ 17” N, 11° 59’ 53” E.

If this correction is made, the point so defined will be the point at sea
through which the delimitation line must pass ; there will therefore be no
need for the experts to calculate it.

2. As regards the second sector of delimitation :

That the most westerly point of the Gulf of Gabes lies on latitude
34° 05’ 20” N (Carthage).
Altogether subsidiarily :

That there is cause to order an expert survey for the purpose of ascer-

taining the exact co-ordinates of the most westerly point of the Gulf of
Gabes.”

On behalf of the Libyan Arab Jamahiriya :

in the written Observations :
“May it please the Court to adjudge and declare :

1. That the request for revision under Article 61 of the Statute of the
Court contained in the Application of Tunisia does not satisfy the condi-
tions laid down in that Article and is thus inadmissible ;

2. That there are no grounds to grant Tunisia’s request to construe the
Judgment ; and

3. That there is no foundation in law or in fact for the request to the Court
to correct an error in the Judgment.”

At the conclusion of the last statement made on behalf of the Libyan Arab
Jamahiriya, at the hearing of 18 June 1985 (afternoon), the Agent of Libya stated
that “Libya reaffirms its submissions”.

*
* *
197 APPLICATION FOR REVISION (JUDGMENT)

7. The Application of Tunisia instituting proceedings in the present
case contains three distinct requests : an application for revision of the
Judgment given by the Court on 24 February 1982 (hereafter called “the
1982 Judgment”), on the basis of Article 61 of the Statute of the Court ; an
application for interpretation of that Judgment, on the basis of Article 60
of the Statute ; and a request to “correct an error” in that Judgment, on the
basis of a power which, in the contention of Tunisia, the Court “unques-
tionably possesses”, even though such a power is not mentioned in any
article of the Statute or of the Rules of Court. In response to a question put
during the hearings by a Member of the Court, Tunisia explained that it
was in fact submitting two requests for interpretation : a request, subsid-
iary to the application for revision and conditional on that application
being found inadmissible, concerning the first sector of the delimitation
the subject of the 1982 Judgment ; and a principal request concerning “the
determination of the most westerly point of the Gulf of Gabes”, in con-
nection with the second sector of that delimitation. In its final submissions
at the hearings, set out in paragraph 6 above, Tunisia clarified the inter-
relation of its various requests by reference to the two sectors of the
delimitation, and added a submission referring to an expert survey.

8. The Statute and Rules contemplate different procedures for a request
for revision and for a request for interpretation. Under Article 61 of the
Statute, the proceedings for revision shall be opened by a judgment of the
Court declaring the application admissible on the grounds contemplated
by the Statute ; and Article 99 of the Rules of Court provides expressly for
proceedings on the merits of the application in the event that, by its initial
judgment, the Court finds it admissible. The provisions of Article 60 of the
Statute and Article 98 of the Rules, concerning requests for interpretation,
do not contemplate such a two-stage procedure. As for the request for
correction of an error in a decision of the Court, there is, as already noted,
no provision in the Statute and Rules of Court governing such a request, or
the applicable procedure.

9. The procedure adopted by the Court in the present case was first to
authorize the filing by the Government of Libya of written observations on
the Tunisian application, and in particular on the admissibility thereof as
provided in Article 99, paragraph 2, of the Rules of Court. Thereafter the
Court held oral proceedings for the purpose of hearing the argument of the
Parties in regard.to the Application of Tunisia as a whole. Such argument
was however necessarily limited, so far as the request for revision is
concerned, to the question of admissibility, but did not have to be limited
to that aspect of the requests for interpretation and for correction of an
error.

10. While Article 61 of the Statute requires, as a first stage in a proce-
dure on a request for revision, a judgment limited to the question of
admissibility of that request, there is, in the Court’s view, no reason why
that same judgment should not, in appropriate circumstances, deal with
other requests made in the same application instituting proceedings. No
provision in the Statute and Rules operates as a bar to such a procedure,

9
198 APPLICATION FOR REVISION (JUDGMENT)

which in the present case has practical advantages. Accordingly, in the
present Judgment the Court will deal first with the question of admissi-
bility of the request for revision, and will then, if appropriate in the light of
its findings on that matter, examine the request for interpretation, sector
by sector, and the request for correction of an error. In this latter respect, it
should be observed that Tunisia’s request is presented as one for the
correction of an “erreur matérielle”. The Court does of course have the
power to correct, in one of its judgments, any mistakes which might be
described as “erreurs matérielles”. That power would not normally be
exercised by way of a judgment, since the very nature of the correction of
such an error excludes any element of contentious procedure ; yet there is
no reason why ajudgment devoted to another purpose should not also deal
with a request connected therewith, for such a correction. It appears
however that Tunisia’s request relates to an alleged error of a more sub-
stantive kind, and thus raises wider questions than that whether a judg-
ment would be the appropriate means for such correction.

*
* *

11. In its Application for revision of the 1982 Judgment, Tunisia relies
on Article 61 of the Statute of the Court, paragraphs 1, 4 and 5 of which
provide as follows :

“1. An application for revision of a judgment may be made only
when it is based upon the discovery of some fact of such a nature as to
be a decisive factor, which fact was, when the judgment was given,
unknown to the Court and also to the party claiming revision, always
provided that such ignorance was not due to negligence.

4. The application for revision must be made at latest within six
months of the discovery of the new fact.

5. No application for revision may be made after the lapse of ten
years from the date of the judgment.”

The fact which, according to Tunisia, was unknown either to the Court or
to Tunisia before the delivery of the Judgment of 24 February 1982,
was identified in the Application as being the text of a Resolution of the
Libyan Council of Ministers of 28 March 1968, which determined the
“real course” of the north-western boundary of a petroleum concession
granted by Libya, and referred to in the 1982 Judgment, known as Con-
cession No. 137. According to Tunisia, the real course of that boundary
was very different from that emerging from the various descriptions given by
Libya during the proceedings before the Court leading up to the 1982
Judgment.

12. In order to set the contentions of Tunisia in context, itis necessary to
recapitulate part of the reasoning in the 1982 Judgment. The Court was
seised by notification of a Special Agreement, under which it was requested

10
199 APPLICATION FOR REVISION (JUDGMENT)

to determine the principles and rules of international law applicable for the
delimitation of the areas of the continental shelf appertaining to the Parties
and (in the Libyan translation from the original Arabic) to “clarify the
practical method for the application” of those principles and rules, or (in the
Tunisian translation) “to specify precisely the practical way” in which they
apply, so as to enable the experts of the two countries to delimit these areas
without any difficulties. At the stage of its reasoning dealing with methods of
delimitation, the Court identified a particular circumstance, related to the
conduct of the Parties, to which the methods proposed by the Parties gave, in
the view of the Court, “insufficient weight” (.C.J. Reports 1982, p. 80, para.
113, p. 83, para. 117). The Court explained the circumstance in question as
follows :

“the history of the enactment of petroleum licensing legislation by each
Party, and the grant of successive petroleum concessions, during the
period from 1955 up to the signing of the Special Agreement, shows that
... the phenomenon of actual overlapping of claims did not appear until
1974, and then only in respect of areas some 50 miles from the coast. A
Tunisian enlarged concession of 21 October 1966 was bounded on the
east by a ‘stepped’ line (a form apparently dictated by the grid/block
system for grant of concessions) the eastern angles of which lay on a
straight line at a bearing of approximately 26° to the meridian. In 1968
Libya granted a concession (No. 137) ‘lying to the eastward of a line
running south/southwest from the point 33° 55’ N, 12° E to a point
about one nautical mile offshore’ the angle thereof viewed from Ras
Ajdir being 26° ; the western boundaries of subsequent Libyan conces-
sions followed the same line, which, Libya has explained, ‘followed the
direction of the Tunisian concessions’. The result was the appearance on
the map of a de facto line dividing concession areas which were the
subject of active claims, in the sense that exploration activities were
authorized by one Party, without interference, or (until 1976) protests,
by the other.” (Jbid., pp. 83-84, para. 117.)

13. In the operative part of its Judgment, the Court indicated inter alia that
“the delimitation is to be effected in accordance with equitable principles,
and taking account of all relevant circumstances” (para. 133 A (1)), and that
the relevant circumstances referred to included (inter alia) :

“the land frontier between the Parties, and their conduct prior to 1974 in
the grant of petroleum concessions, resulting in the employment of a line
seawards from Ras Ajdir at an angle of approximately 26° east of the
meridian, which line corresponds to the line perpendicular to the coast
at the frontier point which had in the past been observed as a de facto
maritime limit” (ibid., p. 93, para. 133 B (4)).

The practical method which the Court indicated for the application of the

11
200 APPLICATION FOR REVISION (JUDGMENT)

relevant principles and rules of international law in the particular situation of
the case was, so far as here material, as follows :

“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 approximately 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 continental 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
shoreline (low-water mark) of the Gulf of Gabes” (1. C.J. Reports 1982,
pp. 93-94, para. 133 C (2)).

14. For this purpose the Court relied on the information as to the
boundaries of the concessions mentioned, particularly Concession No.
137, supplied by the Government of Libya, which had granted them. In its
Memorial, Libya stated that the area covered by that Concession lay “to the
eastward of a line running south/southwest from the point 33° 55’ N, 12° E
to a point about one nautical mile offshore”, adding that “The point of origin
viewed from Ras Ajdir is at an angle of 26 degrees”. In its Counter-Memorial,
Libya mentioned the “stepped eastern boundary” of the Tunisian concession
described in the 1982 Judgment as the “Permis complémentaire offshore du
Golfe de Gabés” (hereafter referred to as “the Tunisian permit”) and stated :
“This is the Concession boundary that runs in a direction northward at an
angle of 26° from Ras Ajdir.” Further on in the same pleading, Libya
indicated that

“on 30 April 1968, the Libyan authorities granted Concession No. 137 to
Aquitaine and Exwarb ... The western boundary of that Concession
followed the direction of the Tunisian Concessions granted in 1967 to
SNPA/RAP fie., the Tunisian permit].”

Referring to later concessions further from the coast, Libya mentioned that
“The western boundary of both these Concessions followed the 26° line”, and
it concluded that “Libya has exercised considerable self-restraint in never
going west of the original 26° concession line in the grant of further con-
cessions”. At the hearings in 1981 the Agent of Libya referred to the Tunisian
permit as having “moved eastward from the due north line from Ras Ajdir.. .
to a line of 26° from Ras Ajdir”, and went on to say that “Libya’s first
concession in 1968 ... avoided the possibility of conflict by adopting the
same line”.

12
201 APPLICATION FOR REVISION (JUDGMENT)

15. The Government of Tunisia, relying on the report of an expert con-
sulted by it, annexed to the Application for revision, has drawn attention to
the following aspects of the factual situation. While the point 33° 55’ N,
12° E, referred to in the 1982 Judgment, corresponds to the north-western
corner of Libyan Concession No. 137, and its bearing from the frontier point
at Ras Ajdir has a value that is very close to 26°, the western boundary of
Concession No. 137 does not run at 26° to the meridian, since the “point
about one nautical mile offshore” referred to by Libya as its south-western
comer is not at a bearing of 26° from the frontier point at Ras Ajdir, but
approximately 1 mile to the east of Ras Ajdir, at 33° 10’ N, 11° 35’ E. The
bearing of this boundary is thus not 26° but 24° 57’ 03”. Secondly, the
south-eastern corner points of the stepped line forming the eastern boundary
of the Tunisian permit are not in line, so that no straight line can be drawn
through them all ; a straight line which would leave all these points on the
west (i.e., would not encroach on the area of the Tunisian permit) would have
a bearing of 27° 50’ 01”. Thirdly, the north-western boundary of the Libyan
petroleum concessions, in particular Concession No. 137, “is not aligned with
the south-eastern boundary of the Tunisian permis complémentaire, however
one defines the latter’s alignment’. Quoting paragraph 121 of the Judgment,
which states that the Libyan boundary “was aligned with the eastern points
of the zig-zag south-eastern boundary” of the Tunisian concession, the expert
consulted by Tunisia notes that the alignment of these points

“neither merges with nor is parallel to the Libyan boundary (there is a
difference of 2° to 212°), nor parallel to line FP [that defined by the
decision of the Court between Ras Ajdir and point 33° 55’N 12° FE]
(difference of between 1° and 114°)”.

16. On this basis, Tunisia argues in its Application for revision that

“the delimitation line passing through point 33° 55’ N, 12° E would
allocate to Libya areas of continental shelf lying within the Tunisian
permit of 1966, contrary to what has been clearly decided by the Court,
whose entire decision is based on the idea of alignment between the
permits and concessions granted by the two Parties and on the resultant
absence of any overlapping of claims up to 1974 and in the nearest
offshore areas, up to 50 miles from the coast (Judgment, para. 117). It
has been shown how this was the ‘one circumstance in particular’ which
the Court found ‘to be highly relevant to the determination of the

299

method of delimitation’.

It contends that the Resolution of the Libyan Council of Ministers of
28 March 1968, which, according to Tunisia, determined the real course of
the boundary of Concession No. 137, was a fact which

“was of such a nature as to be a decisive factor in the Court’s Judg-

13
202 APPLICATION FOR REVISION (JUDGMENT)

ment, given that the Court relied upon certain statements by Libya
which prove to be contradicted by the document in question and that the
actual operative provisions of the Judgment define the delimitation line
to be drawn in accordance with criteria derived from those state-
ments”.

17. The geographic facts as to positions and bearings of the boundaries of
the relevant concessions as stated by the expert consulted by Tunisia are not
disputed by Libya. It has however been emphasized in the Libyan written
observations that “there can be no question of Libya presenting a misleading
picture of the course of its concessions” in its pleadings and argument in the
proceedings leading up to the 1982 Judgment. Libya points out that the
statements in its Memorial (quoted in paragraph 14 above) were perfectly
accurate : the south-western corner of Concession No. 137

“does lie approximately one mile from the terminus of the land frontier
at Ras Ajdir, and the bearing of the angle viewed from Ras Ajdir to the
point of origin of the Concession (33° 55’ N, 12° E) is approximately
26°”.

Libya also observes that

“this Concession was portrayed by both Parties in their written and oral
pleadings on small-scale maps. Neither Party showed any interest in the
details as to the precise course of the boundary of Concession No. 137
or, indeed, of Tunisia’s 1966 Concession, and neither Party furnished
large-scale, detailed maps in this regard. Libya’s descriptions of its
concessions, therefore, were not intended to be detailed, but to give the
general setting which was accurate given the scale of the maps presented.
Nor were there any statements made by Libya as to a precise relation-
ship of Libyan Concession No. 137 to Tunisia’s 1966 Concession. That
there was a generally common boundary between these Concessions,
following a direction of approximately 26° as viewed from Ras Ajdir,
was the extent of the descriptive detail given to the Court by Libya and
portrayed on its small-scale maps and, as such, was correct.”

18. Libya does however dispute the admissibility of the Tunisian Appli-
cation for revision, on both factual and legal grounds. It contends that the
Application of Tunisia fails to comply with any of the conditions set by
Article 61 of the Statute (set out in paragraph 11 above), with the exception of
the condition as to the ten-year limit laid down in paragraph 5. It con-
tends :

— that the fact relied on was known to Tunisia, either at the time of the 1982
Judgment or at some time earlier than six months before the filing of the
Application for revision ;

— that if the fact was unknown to Tunisia, that ignorance was due to negli-
gence on the part of Tunisia ; and

14
203 APPLICATION FOR REVISION (JUDGMENT)

— that Tunisia has failed to show that the fact discovered was “of such a
nature as to be a decisive factor”.

19. Article 61 of the Statute provides that an application for revision of a
judgment may be made only when it is based upon the discovery of a fact
“which was, when the judgment was given, unknown to the Court and also to
the party claiming revision”. So far as knowledge of the fact in question could
be derived from the pleadings and material submitted to the Court in the
proceedings leading up to the original judgment, anything which was known
to the Court must equally have been known to the party claiming revision.
The Court must be taken to be aware of every fact established by the material
before it, whether or not it expressly refers to such fact in its judgment ;
similarly, a party cannot argue that it was unaware of a fact which was set
forth in the pleadings of its opponent, or in a document annexed to those
pleadings or otherwise regularly brought before the Court.

20. In its Application, Tunisia contends that

“The new fact, that is to say, the fact unknown both to the Court and
to Tunisia before the delivery of the Judgment consists in the discovery
of the text of the Resolution of the Libyan Council of Ministers dated 28
March 1968, which determines the true course of the north-western
boundary of Libyan concession No. 137, a course which, as has been
demonstrated, is very different from the one emerging from the descrip-
tions Libya gave during the written and oral proceedings. This docu-
ment was not drawn to the attention of the Court. It is neither in the
Memorial and Annexes of Libya nor in the documents provided by
Libya in the course of the proceedings.”

Annexed to the Tunisian Application was what was described as the “De-
scription of Concession No. 137 as defined in the Resolution of the Council
of Ministers of 28 March 1968”. Libya contends however that the actual
Resolution in question contained no details as to Concession No.
137, nor did it include a map. The document annexed to the Tunisian
Application is, according to Libya, a reproduction of an Annex to the
pertinent Concession Agreement, setting forth the area covered by the
Concession in square kilometres as well as the co-ordinates of the bound-
aries of the Concession. Libya has suggested that “technically this mistake
might be enough to render the Application inadmissible as an application
for revision”. The Court however considers that this would be an over-
formalistic approach. It will examine the matter on the basis that the fact
which allegedly was unknown in 1982 was the co-ordinates defining the
boundary of Concession No. 137, however those co-ordinates may have
been officially recorded. It is really on this basis that the matter has been
argued.

21. Itis however worth emphasizing at this point that the “new fact”, i.e.,
the fact the discovery of which is relied on to support the application for
revision, is solely the boundary co-ordinates. This entails, it is argued,

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204 APPLICATION FOR REVISION (JUDGMENT)

first that the boundary of the Libyan concession is not “aligned” on the
Tunisian permit, and secondly that the true north-western boundary of
Concession No. 137 “reveals a phenomenon of overlapping”, in that the line
passing through point 33° 55’ N, 12° E “would allocate to Libya areas of
continental shelf lying within the Tunisian permit of 1966, contrary to what
has been clearly decided by the Court”. It appears to the Court however that
while the actual co-ordinates may constitute a new fact, this is not the case as
regards the existence of an overlap between the north-western edge of Libyan
Concession No. 137 and the south-eastern edge of the Tunisian permit. The
expert consulted by Tunisia has himself shown in his report that the position
of the south-eastern tips of the zig-zag boundary of the Tunisian permit is
such that that boundary overlaps not only the line of the actual north-western
boundary of Concession No. 137, the bearing of which the expert calculates
as 24° 57’ 03”, but also the 26° line indicated by the Court as “‘a de facto line
dividing concession areas which were the subject of active claims” (.C./.
Reports 1982, p. 84, para. 117). Thus even assuming that Tunisia was given the
impression by Libya’s pleadings that the north-western boundary of Conces-
sion No. 137 ran at 26° to the meridian, ending at the point 33° 55’ N, 12° E,
and starting from a point one mile offshore of, and at a bearing of 26° from,
Ras Ajdir, it would necessarily have been aware of the existence of an overlap
with its own permit. The overlap with the 26° line was in fact almost twice as
great in area as that with the actual boundary of Concession No. 137, since
the southern end of that boundary was further east than the 26° line.

22. So far as the 26° line is concerned, Libya has in the present proceedings
drawn attention to a map attached to its Counter-Memorial of 1981, which
indicated some degree of overlap between the 26° line and the stepped
boundary of the Tunisian permit. Libya has also suggested that the overlap
was discernible, though with difficulty, on a map produced by Tunisia during
the oral proceedings in 1981. On the other hand, a map annexed to the Libyan
Memorial of 1980 shows all the outer (south-eastern) corner points of the
Tunisian stepped boundary as apparently lying on the 26° line, but this,
according to the expert consulted by Tunisia, was not correct since those
points did not lie on that line or indeed on any straight line. As for the actual
boundary of Concession No. 137, Libya has drawn attention in the present
proceedings to the fact that the map annexed to the Concession was repro-
duced as an Annex to the Libyan Counter-Memorial. That map, which bears
the legend “Approximated boundaries indicated in red” does not however
give the co-ordinates of the various boundary points. The boundaries are
shown superimposed upon a grid of degrees (not minutes) of latitude and
longitude, and the coastline is not shown, so that careful scaling would be
necessary to establish even the approximate position of the point nearest Ras
Ajdir.

23. That said, it should be noted that while Libya emphasizes that the

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205 APPLICATION FOR REVISION (JUDGMENT)

information it supplied to the Court in the proceedings leading up to the 1982
Judgment was accurate as far as it went, it does not in fact deny that the exact
co-ordinates of Concession No. 137 were not supplied to the Court by either
Party, so that Tunisia would not have been able to ascertain the exact location
of the Libyan concession from the pleadings and other material then before
the Court. The Court must however consider whether the circumstances were
such that means were available to Tunisia to ascertain the details of the
co-ordinates of the concession from other sources ; and indeed whether it was
in Tunisia’s own interests to do so. If such be the case, it does not appear to
the Court that it is open to Tunisia to rely on those co-ordinates as a fact
which was “unknown” to it for the purposes of Article 61, paragraph 1, of the
Statute. In the Fisheries case, in which the United Kingdom denied know-
ledge of a Norwegian Decree of 1869 concerning the delimitation of the
territorial sea, the Court observed that

“As a coastal State on the North Sea, greatly interested in the fisheries
in this area, as a maritime Power traditionally concerned with the law of
the sea and concerned particularly to defend the freedom of the seas, the
United Kingdom could not have been ignorant of the Decree of 1869.”
(U.C.J. Reports 1951, p. 139, emphasis added.)

24. It should first be noted that the Resolution of the Council of
Ministers of 28 March 1968 was published both in the Libyan Official Ga-
zetté (4 May 1968) and in Middle East Economic Survey (9 August 1968),
in the latter publication with the editorial explanation that it related to
“6846 sq. kms. of offshore acreage in the Zuara area near the Tunisian
border” (emphasis added). Secondly, in a Note of 13 April 1976 addressed
to Libya Tunisia stated that

“From 1968 onwards the Tunisian Government has contested the
concession No. 137 granted by the Libyan Government, since it extends
within the Tunisian continental shelf as defined by international law
and usage.”

The “Tunisian continental shelf” certainly included the areas within the
Tunisian permit, the co-ordinates of which were included in the material
before the Court in 1982 (though only in a form requiring some expert
knowledge to plot them on a map). In what way the Tunisian Government
had “contested” the Concession is not clear, since Libya’s Note of
30 March 1976 stated that its concession limits had “encountered no oppo-
sition or reservation”. However, the reasonable and appropriate course of
action to be taken by Tunisia, in 1976 at the latest, would have been to seek to
know the co-ordinates of the Concession, so as to establish the precise extent
of the encroachment on what it regarded as Tunisian continental shelf.

25. Libya has pointed out that, although it is not its practice to publish
the co-ordinates of oil concessions granted by it, the Libyan Petroleum

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206 APPLICATION FOR REVISION (JUDGMENT)

Regulations of 1955 do provide for access by the public to the Petroleum
Register, and to status maps which show “the areas indicated in all pending
applications, the areas of all currently valid concessions and all open areas”.
Thus while the co-ordinates of Concession No. 137 were never published,
they were, according to Libya “readily obtainable in Tripoli”. It was also
possible, according to Libya, to obtain the information from the Libyan
National Oil Corporation. It has been shown by Libya in the present pro-
ceedings that an independent firm of consultants in the petroleum industry
was thus able to obtain the information in question in 1976 ; and Tunisia has
neither explained why it would not have been possible for it to do the same —
or indeed itself to apply to the firm of consultants in question — nor proved
that if it had made such approaches, they would have been unsuccessful.

26. In this respect Tunisia has urged that

“The Tunisian Government cannot be held negligent in any way, as
its representatives have vainly requested their Libyan counterparts to
communicate this text to them during the meetings between the two
sides ever since 1968.”

Libya, it should be observed, denies that such requests were made. However,
even if Tunisia’s assertion be accepted, it is clear from the Notes exchanged
between the Parties and produced to the Court, and not contested by Tunisia,
that Libya had expressed its willingness to assist Tunisia to obtain maps of
the area claimed by Libya; Tunisia had been told that these maps had
already been published, registered and distributed and were available to all ;
but that Tunisia commented that it would have been “simpler” for the Libyan
Government itself to transmit the maps in auton to Tunisia. While it was
no doubt correct as a matter of diplomatic practice for Tunisia to invite the
Libyan Government to supply the relevant information, there was no reason
why Tunisia, particularly if it was not receiving from the Libyan Government
the co-operation which it apparently expected, should not employ other,
perfectly lawful and proper, means to obtain it.

27. Normal diligence would require that, when sending a delegation to
negotiate a continental shelf delimitation, following the grant by each side of
neighbouring or conflicting concessions, a State should first try to learn the
exact co-ordinates of the other party’s concession. Furthermore, it is to be
expected that a State would not assert that such concession extended to its
own area of continental shelf without knowing, or making efforts to discover,
the exact limits of the concession. It is also to be expected that, in litigation
the ultimate purpose of which is the establishment of a continental shelf
delimitation, and in the course of which a petroleum concession in the
relevant area is described by one party without precision, the other party will
not limit itself to commenting on the matter in its pleading, but itself seek out
the information.

28. The Court must therefore conclude that in the present case, the fact

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207 APPLICATION FOR REVISION (JUDGMENT)

that the concession boundary co-ordinates were obtainable by Tunisia, and
the fact that it was in its own interests to ascertain them, together signify that
one of the essential conditions of admissibility of a request for revision
laid down in paragraph 1 of Article 61 of the Statute, namely ignorance
of a new fact not due to negligence, is lacking. In view of this conclusion,
there is no need to enquire into the question whether the application
for revision was made within six months of the discovery of the fact of
the co-ordinates, as required by paragraph 4 of Article 61 of the
Statute.

29. There remains however a further requirement of Article 61, namely
that the fact, the discovery of which is relied on, must be “of such a nature as
to be a decisive factor”. Strictly speaking, once it is established that the
request for revision fails to meet one of the conditions for admissibility,
the Court is not required to go further and investigate whether the other
conditions are fulfilled. However, in the special circumstances of the present
case, in which the request for revision is accompanied by a request for
interpretation, the Court finds it useful to consider also whether the fact of
the concession co-ordinates was “of such a nature as to be a decisive factor”.
The request by Tunisia for interpretation of the 1982 Judgment as regards the
first sector of the delimitation — which, it will be recalled, is made “altogether
subsidiarily” to the request for revision — is closely bound up with the
question of which aspects of the case were to be regarded as constituting a
“decisive factor” in that Judgment and which were not. In the exercise of its
“freedom to select the ground upon which it will base its judgment” (Appli-
cation of the Convention of 1902 Governing the Guardianship of Infants, I.C.J.
Reports 1958, p. 62), the Court considers that it should therefore deal with this
aspect of the admissibility of the request for revision before turning to the
requests for interpretation.

30. In its Application, Tunisia refers to the relevant passage from para-
graph 133 C of the 1982 Judgment (see paragraph 13 above) and deduces that
“the Judgment’s definition of the determining line” — the line from the
frontier point determining the point on the boundary of the territorial sea
from which the delimitation line was to run, and by extension also the
delimitation line itself — “draws on three distinct factors”, which it finds in
the operative clause of the Judgment,

“for the line in question is the straight line :

— ‘drawn from the land frontier point of Ras Ajdir through the point
33° 55’ N, 12° E,

— ‘at a bearing of approximately 26° east of north’,

— ‘corresponding to the angle followed by the north-western boundary
of Libyan petroleum concessions Nos. NC 76, 137, NC 41 and NC 53,
which was aligned on the south-eastern boundary of Tunisian petro-
leum concession “Permis complémentaire offshore du golfe de
Gabés” (21 October 1966)’.”

Tunisia emphasizes the word “approximately” in the phrase “at a bearing

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208 APPLICATION FOR REVISION (JUDGMENT)

of approximately 26° east of north”, which it understands as signifying “that
the degree mentioned is not given as an exact bearing”. In Tunisia’s inter-
pretation therefore,

“The exact bearing of the line in question will, therefore, finally
depend on the other two factors mentioned by the Court, which do not
admit of any variation.

For, on the one hand, only one straight line can be drawn through two
specified points : in this case, the frontier point of Ras Ajdir and the
point 33° 55’ N, 12° E. On the other hand, the boundaries of the Libyan
concessions and the Tunisian permit were of course defined in terms of
precise co-ordinates by the official deeds granting them and can be
discovered without risk of error simply by consulting those deeds.”

31. Tunisia then goes on to argue not merely that it is insufficient to draw a
straight line from the frontier point through the point 33° 55’ N, 12° E,
without checking that the bearing of the line actually corresponds to the angle
formed by aligning the Libyan concessions on the Tunisian permit, but even
that the criterion constituted by such alignment is “not a secondary cri-
terion”, but “an essential element on which the equitable character of the
delimitation depends and, in truth the ratio decidendi of the Judgment”. This
criterion is, it is said, the most important, because it is “the only one to be
meaningful”. This Tunisia deduces from the fact that

“in the Court’s eyes, the line that must be adopted in order to ensure an
equitable delimitation must be determined having regard to ‘one cir-
cumstance in particular’ which it ‘finds to be highly relevant to the
determination of the method of delimitation’ that the Parties have to
follow (Judgment, paras. 113 and 117). This ‘one circumstance in par-
ticular’, according to the Court, is related to the conduct of the Parties in
granting petroleum concessions from 1955 to the signature of the Spe-
cial Agreement. The Court states that the result of that conduct ‘was the
appearance on the map of a de facto line dividing concession areas which
were the subject of active claims’ and stemming from the fact that, when
the Libyan concessions were granted, their western boundary fitted
alongside the ‘stepped’ line forming the eastern boundary of the Tuni-
sian permit of 21 October 1966.”

32. The view of Tunisia as to the decisive character of the fact of the
coincidence of the concession boundaries is based upon its own reading of the
operative clause of the 1982 Judgment. That clause, however, falls into two
distinct parts. It first defines what may be called the “determining line”, for
the purpose of establishing the starting point of the delimitation line ; as the
Court explained in paragraph 116 of the 1982 Judgment :

“Since the continental shelf begins, for purposes of delimitation,

20
209 APPLICATION FOR REVISION (JUDGMENT)

from the outer limit of the territorial sea, the starting point for the line of
delimitation in this case must be from the boundary of the territorial sea
off Ras Ajdir, the exact point (and thus the relationship of the delimi-
tation line to the unsettled lateral boundary of the territorial sea)
depending upon the direction of the line with respect to Ras Ajdir.”
(LCJ. Reports 1982, p. 83.)

Thus the operative clause defines the starting point as

“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
approximately 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’ ” (ibid., p. 93, para. 133 C (2)).

The definition of the “determining line” — which is not itself the delimitation
line — is solely that it is to be “drawn from the land frontier point of Ras
Ajdir through the point 33° 55’ N, 12° E” ; the Court then adds, by way
of explanation, but not of definition, that the line runs at a speci-
fied approximate bearing, and that that bearing corresponds to the angle
formed by the boundary of the concessions mentioned. The Court goes
on to define the actual delimitation line as follows :

“from the intersection point so determined, the line of delimitation
between the two continental shelves is to run north-east through the
point 33° 55’ N, 12° E, thus on that same bearing [i.e., approximately
26° east of north]” (ibid, pp. 93-94).

33. In the operative clause of the Judgment there is therefore a single
precise criterion for the drawing of the delimitation line, namely that the
line is to be drawn through two specifically defined points. The consi-
derations which led the Court to arrive at the choice of that line are reflec-
ted in the operative clause only in so far as they are indicated as an explana-
tion of the “determining line” ; they are not mentioned at all as part of
the description of the delimitation line itself. The role of the Parties’ experts
was consequently limited to establishing with accuracy, and according to an
appropriate geodetic system of reference, the two points defined by the
Court, and drawing a straight line between them, which involves agreement
between the experts as to whether such line is to be orthodromic or loxo-
dromic. They are not required to concern themselves with any re-
lationship between that line and the boundaries of the Libyan concessions
or the Tunisian permit.

34. This does not of course fully answer the question whether know-
ledge of the precise co-ordinates of Concession No. 137 would have led the
Court to give a different decision. The factual situation may be said to have

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210 APPLICATION FOR REVISION (JUDGMENT)

differed in two respects from that described by the Court in its Judgment.
First, there was in fact a phenomenon of overlapping, albeit slight, as soon as
Concession No. 137 was granted in 1968 ; and this would have been the case
even if the western boundary of Concession No. 137 had run at 26° from Ras
Ajdir. Secondly, the western boundary of successive Libyan concessions did
not follow a consistent line at 26° from Ras Ajdir, but began one mile to the
east of Ras Ajdir, ran to the point 33° 55’ N, 12° E (which point is at 26° from
Ras Ajdir), and then turned slightly east so as to run at 26° from there on
(boundaries of Concessions NC 41 and NC 53). This was still the case after
part of Concession No. 137 was surrendered and regranted in 1977 as Con-
cession No. NC 76.

35. Tunisia considers that the “entire decision” of the Court was “based
on the idea of alignment between the permits and concessions granted by the
two Parties and on the resultant absence of any overlapping of claims up to
1974 and in the nearest offshore areas, up to 50 miles from the coast”, and
therefore contends that since the Libyan concessions did not, on the western
side, “match up with” the Tunisian stepped boundary, this is “certainly a fact
which, if it had been known to the Court, would have led it to adopt a
different approach”. This however seems to the Court to be an over-simpli-
fication of its reasoning. In the first place, it should be recalled that in the
operative clause of its Judgment the Court defined the relevant circumstances
to be taken into account in achieving an equitable delimitation as including
the following : the definition of the area relevant to the delimitation, the
general configuration of the coasts of the Parties, in particular the marked
change in direction of the Tunisian coastline between Ras Ajdir and Ras
Kaboudia, the existence and position of the Kerkennah Islands, the land
frontier between the Parties, and their conduct prior to 1974 in the grant of
petroleum concessions, resulting in the employment of “a line seawards from
Ras Ajdir at an angle of approximately 26° east of the meridian, which line
corresponds to the line perpendicular to the coast at the frontier point which
had in the past” (for over 60 years) “been observed as a de facto maritime
limit” (including the respective zones of sponge fishing), and the element of a
reasonable degree of proportionality between continental shelf areas and the
length of the relevant part of the coast (cf. para. 133 B of the 1982 Judgment).
The line resulting from the grant of petroleum concessions was thus by no
means the sole consideration taken into account by the Court. As was
explained in the reasoning part of the Judgment,

“the factor of perpendicularity to the coast and the concept of prolon-
gation 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”
(.CJ. Reports 1982, p. 85, para. 120).

22
211 APPLICATION FOR REVISION (JUDGMENT)

The method for ensuring an equitable delimitation indicated by the Court
derived in fact from a balance struck between a number of considerations, a
process which has always been regarded as inherent in the application of
equity in this domain :

“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.” (North Sea Continental Shelf, I.C.J. Reports
1969, p. 50, para. 93.)

Tunisia itself, when explaining in its Application the difficulties encountered
in implementing the Judgment, treated the perpendicular to the general
direction of the coastline as a “criterion” to be met by the delimita-
tion line. While this view attaches too great an importance to one of the
relevant circumstances identified by the Court, it does highlight the fact that
the petroleum concessions line was by no means the sole basis of the entire
decision. Any “new fact” discovered in connection with the conduct of the
Parties in the grant of petroleum concessions is therefore not necessarily to be
regarded as a decisive factor.

36. Secondly, the argument of Tunisia proceeds on the implicit basis of a
narrow interpretation of the term “aligned” employed in the operative clause
of the 1982 Judgment. The Court there refers to the north-western boundary
of Libyan petroleum concessions numbers NC 76, 137, NC 41 and NC 53
as having been “aligned on the south-eastern boundary” of the Tunisian
permit. According to Tunisia, discovery of the exact co-ordinates of Con-
cession No. 137 reveals that the north-western boundary of the Libyan
petroleum concessions, and in particular that of Concession No. 137,
“is not aligned on” the north-eastern boundary of the Tunisian permit
of 1966. It is evident that the Court did not mean by “aligned” that the
boundaries of the relevant concessions formed a perfect match in the sense
that there was neither any overlap of the concessions nor any sea-bed areas
left open between the two boundaries. The Libyan line was, according to
all the references made to it during the proceedings, a straight line (at a
bearing of 26° to the meridian) ; the Tunisian boundary was a stepped line.
Thus the Libyan boundary would necessarily either leave a succession of
triangular areas between itself and the Tunisian boundary, or create a
succession of triangular areas of overlap of the two concessions, or both.
Tunisia argues further that in view of the chronological priority of the
Tunisian permit, “if there was to be any alignment, this could only arise
from the Libyan concession being aligned with the south-eastern boundary
of the Tunisian permit”, and that the delimitation line should pass through
the most easterly point of the Tunisian permit. It should however be
recalled that Libya, both in its Counter-Memorial and at the hearings in
1981, referred to the Tunisian permit boundary as a 26° line from Ras
Ajdir (paragraph 14 above), without correction or contradiction by Tuni-

23
212 APPLICATION FOR REVISION (JUDGMENT)

sia ; and this description was adopted by Tunisia itself in its Reply, where it
stated that its own permit was “delimited on the east by a stepped line
trending north-northeast at an angle of approximately 26° from the Ras
Ajdir meridian”. The Court is of course aware that, according to the expert
consulted by Tunisia, the alignment of the stepped boundary may be
assessed in different ways, because the points of the zig-zag do not lie on a
straight line, and that the orientation of the line is calculated by that expert
at bearings varying from 26° 59’ 22” to 27° 50’ 01”. In 1982, these calcu-
lations were not however before the Court, which was simply informed by
both Parties that the Tunisian stepped boundary ran in a direction of 26°
from Ras Ajdir. It is therefore evident that, in relation to the Tunisian
stepped boundary, a bearing of 26° from Ras Ajdir was adopted as
expressing its general direction ; and it was with that general direction that
the Libyan concession boundary was said by the Court to be “aligned”.
The mention by the Court in its decision of the point 33° 55’ N, 12° E,
which had been indicated by Libya as the corner point of Concession
No. 137 (and thus also of the adjoining Concession NC 41), and as lying at
26° to the meridian “viewed from Ras Ajdir”, was a convenient concrete
means of defining the 26° line. Since the Court was well aware, as it had
indicated, that the alignment of the Tunisian permit and the Libyan
concessions was not the co-incidence of two straight lines, it was not
relevant whether or not that point also lay on the zig-zag boundary of the
permit — a matter which would have been very difficult to establish from
the material then before the Court.

37. Thirdly, it is necessary to emphasize in what way the “alignment” of
the concession boundaries was significant for the Court. After referring to
that alignment as resulting in

“the appearance on the map of a de facto line dividing concession
areas which were the subject of active claims, in the sense that explo-
ration activities were authorized by one Party, without interference, or
(until 1976) protests, by the other” U.C.J. Reports 1982, p. 84,
para. 117),

the Court continued :

“It should be made clear that the Court is not here making a finding
of tacit agreement between the Parties — which, in view of their more
extensive and firmly maintained claims, would not be possible — nor
is it holding that they are debarred by conduct from pressing claims
inconsistent with such conduct on some such basis as estoppel. The
aspect now under consideration of the dispute which the Parties have
referred to the Court, as an alternative to settling it by agreement
between themselves, is what method of delimitation would ensure an
equitable result ; and 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 affecting part only of the area to
be delimited.” (/bid., para. 118.)

24
213 APPLICATION FOR REVISION (JUDGMENT)

In other words, what the Court regarded as significant was not merely the
fact that Libya had, apparently, limited its 1968 concession so as not to
encroach on Tunisia’s 1966 concession ; it was the fact that both Parties
had chosen to use as boundary of the permits or concessions granted by
them a line corresponding, with whatever degree of approximation, to a
line drawn from Ras Ajdir at 26° to the meridian. It was the conduct of
Tunisia which was relevant, just as much as that of Libya, even though
when the Tunisian permit was granted in 1966, there was no existing
Libyan concession in the area. Thus the choice of a stepped south-eastern
boundary corresponding approximately to a 26° line was an indication of
what line Tunisia considered equitable. Similarly, the choice by Libya of
the point 33° 55’ N, 12° Eas the point of origin for Concession No. 137 —
that point being, it should be reiterated, at a bearing of 26° from Ras Ajdir
— suggested that a 26° line was at that time also regarded by Libya as
equitable, an interpretation confirmed by Libya’s use of that line for
Concessions NC 41 and NC 53.

38. Consequently the Court’s reasoning is wholly unaffected by the
evidence now produced as to the boundaries of Concession No. 137. The
slight overlap between the Libyan line and the tips of the zig-zags of the
Tunisian line, while possibly of importance for some purposes, could only
be of legal significance if the argument were based on an alleged recog-
nition of the Tunisian line by Libya giving rise to estoppel ; but the Court
specifically said that that was not the nature of its reasoning. As noted
above, the Tunisian stepped line, for its part, supports a finding of an
indication that Tunisia regarded a line at approximately 26° to the meri-
dian as equitable. As to the north-western boundary of Concession
No. 137, the fact that it runs at 24° 57’ is of no significance : what matters
is that its most seaward point lies at 26° from Ras Ajdir, which would have
to be the starting point for any agreed delimitation of maritime areas
between the Parties. The only straight delimitation line from Ras Ajdir
which would have been consistent with the choice by Libya of the point
33° 55’ N, 12° Eas the north-western corner of its concession, would be a
line at some 26° to the meridian.

39. This is not of course to say that if the co-ordinates of Concession
No. 137 had been clearly indicated to the Court, the 1982 Judgment would
nevertheless have been identically worded. The explanation, given above,
of the distinction between the bearing of the actual boundary of Conces-
sion No. 137 (24° 57’ 03”) and the bearing of the boundary from Ras Ajdir
implied by the choice of the point 33° 55’ N, 12° E (26°), might usefully
have been included. If the Court had found it necessary to enter into such
precise cartographic detail, it might also have made more precise its find-
ing that “the phenomenon of actual overlapping of claims did not appear
until 1974, and then only in respect of areas some 50 miles from the coast”
(para. 117). But what is required for the admissibility of an application for
revision is not that the new fact relied on might, had it been known, have
made it possible for the Court to be more specific in its decision ; it must

25
214 APPLICATION FOR REVISION (JUDGMENT)

also have been a “fact of such a nature as to be a decisive factor”. So far
from constituting such a fact, the details of the correct co-ordinates of
Concession No. 137 would not have changed the decision of the Court as to
the first sector of the delimitation.

40. Accordingly, for all the foregoing reasons, the Court must find that
the Application by Tunisia for revision of the 1982 Judgment is not
admissible according to the terms of Article 61 of the Statute.

41. The above examination by the Court of the meaning and scope of
the 1982 Judgment for the purposes of its decision on the admissibility of
the application for revision of that Judgment considerably simplifies the
task of the Court in dealing with the subsidiary request by Tunisia for the
interpretation of the Judgment as regards the first sector of the delimita-
tion line, as will be seen below. However, it is first necessary to deal with a
jurisdictional objection raised by Libya. That objection, made in reliance
on the provisions of the Special Agreement on the basis of which the case
was originally brought before the Court, is directed in effect to the juris-
diction of the Court to entertain any request by Tunisia for interpretation
of the 1982 Judgment. That Special Agreement, signed on 10 June 1977
and notified to the Court on 1 December 1978, provided :

“article 2

Following the delivery of the Judgment of the Court, the two
Parties shall meet to apply these principles and rules in order to
determine the line of delimitation of the area of the continental shelf
appertaining to each of the two countries, with a view to the conclu-
sion of a treaty in this respect.

Article 3

In case the agreement mentioned in Article 2 is not reached within a
period of three months, renewable by mutual agreement from the date
of delivery of the Court’s Judgment, the two Parties shall together go
back to the Court and request any explanations or clarifications which
would facilitate the task of the two delegations to arrive at the line
separating the two areas of the continental shelf, and the two Parties
shall comply with the Judgment of the Court and with its explanations
and clarifications.”

Tunisia’s present approach to the Court was not made jointly with Libya,
and was — so far as it seeks an interpretation — based upon Article 60 of the
Statute rather than upon Article 3 of the Special Agreement. Tunisia did
however in its Application request the Court :

26
215 APPLICATION FOR REVISION (JUDGMENT)

“in the event it should deem it possible to construe Article 3 of the
Special Agreement as authorizing its seisin by one Party only (which
seisin would have the effect of obliging the other to return to the Court
alongside the Applicant), to consider the present request as also
founded upon that Article”.

Libya’s contention is that :

“the provisions of Article 3 of the Special Agreement should be
respected by both Parties, and that if explanations and clarifications
are required of the Court, the Parties should go back ‘together’. Such a
return, however, presupposes that the experts of the Parties would
have made a good faith effort to implement the Court’s Judgment and
that, if they were not successful, they would have been obligated to
indicate the precise points of difference to be included in the reference
to the Court” ;

and that Tunisia has neither endeavoured in good faith to implement the
Court’s Judgment, nor indicated the precise points of difference.

42. The question thus arises of the relationship between the procedure
contemplated by Article 3 of the Special Agreement and the possibility for
either Party to request an interpretation of a judgment under Article 60 of
the Statute. Counsel for Tunisia conceded that the recourse provided for in
Article 3 of the Special Agreement is itself a recourse of interpretation, but
contended that the effect of that provision could not be to exclude
Article 60 of the Statute. Libya’s argument is that :

“Article 3 requires the Parties to follow a certain procedure : that is,
the evident obligation for them first to exhaust the remedy of seeking
explanations and clarifications under Article 3 of the Special Agree-
ment. For this reason, Libya considers that the Court does not possess
the requisite jurisdiction to admit the Tunisian request for interpre-
tation.”

In other words, Libya’s approach is that the jurisdiction of the Court to
entertain a request for interpretation under Article 60 is subject to a
condition requiring the exhaustion of the alternative interpretation pro-
cedure, by joint application to the Court, instituted by Article 3 of the
Special Agreement. In reply to a question put by a Member of the Court,
the Agent of Libya explained further that

“Tunisia had not made a bona fide attempt to agree on points of
explanation or clarification for the purpose of a joint request to the
Court under Article 3 of the Special Agreement. Such a joint request
is a necessary condition for return to the Court under Article 3. The
failure of Tunisia to attempt to specify the point or points of expla-
nation or clarification for the purposes of a joint request could well be
regarded as debarring Tunisia’s resort to Article 60 of the Statute”.

27
216 APPLICATION FOR REVISION (JUDGMENT)
Libya had, however,

“chosen not to rely on what might be regarded by Tunisia as a purely
technical bar to the present Application. Libya believes that the
application is so lacking in merit that Libya has preferred to oppose
it.”

It is by no means clear that Libya intended to waive a jurisdictional
objection based on Article 3 of the Special Agreement, which it considered
itself entitled to raise.

43. In view of the importance of the question, the Court finds it ne-
cessary to deal with it. It is of course a fundamental principle that “The
consent of States, parties to a dispute, is the basis of the Court’s jurisdiction
in contentious cases” (1.CJ. Reports 1950, p. 71). It follows, first that
parties to treaties or special agreements are free to make their consent to
the seisin of the Court, and hence the Court’s jurisdiction, subject to
whatever pre-conditions, consistent with the Statute, as may be agreed
between them ; and secondly, that in principle a State may validly waive an
objection to jurisdiction which it might otherwise have been entitled to
raise. When examining its jurisdiction under Article 36 of the Statute, the
Court is accordingly bound to examine and give effect both to any such
jurisdictional pre-conditions, and to any unambiguous waiver of a juris-
dictional objection. The jurisdiction of the Court to give an interpretation
of one of its own judgments, on the other hand, is a special jurisdiction
deriving directly from Article 60 of the Statute. Thus the Court has in any
event to consider whether the conditions for the existence of that juris-
diction are fulfilled. Furthermore, the Parties to this case, in becoming
parties to the Statute of the Court, have consented to that jurisdiction
without pre-condition. The effect of Article 3 of the Special Agreement, as
interpreted by Libya as being in pari materia with Article 60 of the Statute,
would be to make the right of each Party to request an interpretation — a
right exercisable unilaterally — subject to the prior employment of a
procedure requiring the participation of both Parties. In other words, the
exercise of the right of one party to seek an interpretation under Article 60
of the Statute would be effectively blocked by the other party, if that party
chose not to co-operate. Whether or not such an agreement could validly
derogate — as between the parties thereto — from the Statute, it is not
lightly to be presumed that a State would renounce or fetter its right under
Article 60 of the Statute to request an interpretation unilaterally. Accord-
ingly, the Court is unable to interpret the Special Agreement in that sense,
and does not consider that the request made by Tunisia for interpretation
in reliance on Article 60 of the Statute is affected by the existence of
Article 3 of the Special Agreement...

44. Libya further contends however that the Tunisian request based
upon Article 60 fails in a number of respects to comply with what the Court
in 1950 defined as the conditions for the admissibility of such a request,
namely :

28
217 APPLICATION FOR REVISION (JUDGMENT)

“(1) The real purpose of the request must be to obtain an interpre-
tation of the judgment. This signifies that its object must be
solely to obtain clarification of the meaning and the scope of
what the Court has decided with binding force, and not to obtain
an answer to questions not so decided. Any other construction of
Article 60 of the Statute would nullify the provision of the article
that the judgment is final and without appeal.

(2) In addition, it is necessary that there should exist a dispute as to
the meaning or scope of the judgment.” (Request for Interpreta-
tion of the Judgment of 20 November 1950 in the Asylum Case,
IC J. Reports 1950, p. 402.)

45. Libya contends that “the essence of the Tunisian request is not
interpretation, but something quite different”, namely a “plea for revision
of the Court’s Judgment”, an attempt “to alter what the Court has already
decided with binding force”, namely the indication that the delimitation
line was to run through the point 33° 55’ N, 12° E. Tunisia however argues
that the co-ordinates of that point have no intrinsic significance, and “in all
probability were merely calculated by reference to prior elements”, i.e.,
that the line had to correspond to the criterion which Tunisia regarded as
“the only one to be meaningful”, as explained in paragraph 31 above, the
“alignment” of the Tunisian permit and the Libyan concessions ; in other
words Tunisia contends that the indication in the 1982 Judgment that the
line should pass through the point 33° 55’ N, 12° E, does not constitute a
matter decided with binding force. It will be apparent from what has
already been said on the request for revision that the Court is unable to
uphold Tunisia’s view on this issue ; but this is not in itself a reason for
holding the request for interpretation to have been inadmissible. Similarly,
the argument of Libya that the object of Tunisia’s request for interpreta-
tion is to alter what the Court has decided with binding force rests upon a
particular view as to what has been so decided ; it is therefore a refutation
of the interpretation proposed by Tunisia rather than an objection to its
admissibility.

46. On the question whether there exists a “dispute between the Parties
as to the meaning or scope of the judgment”, the Court notes that in
Libya’s contention, Tunisia has failed to specify precisely what differences
it had with Libya’s position on the implementation of the 1982 Judgment
as set out in a Libyan diplomatic Note of 10 August 1982. Tunisia has
therefore, it is contended, failed to show the existence of such a dispute.
Libya has emphasized the reluctance of Tunisia to define exactly what
were the difficulties which it claimed to encounter in the implementation
of the Judgment, so that it was not until the Application was filed that
Libya was really informed of the basis of Tunisia’s objection. In this
respect, the Court would recall the ruling of the Permanent Court of
International Justice, in its decision on the Interpretation of Judgments

29
218 APPLICATION FOR REVISION (JUDGMENT)

Nos. 7 and 8 (Factory at Chorzôw), concerning the application of Article 60
of the Statute of that Court :

“In so far as concerns the word ‘dispute’, the Court observes that,
according to the tenor of Article 60 of the Statute, the manifestation of
the existence of the dispute in a specific manner, as for instance by
diplomatic negotiations, is not required. It would no doubt be desir-
able that a State should not proceed to take as serious a step as
summoning another State to appear before the Court without having
previously, within reasonable limits, endeavoured to make it quite
clear that a difference of views is in question which has not been
capable of being otherwise overcome. But in view of the wording of
the article, the Court considers that it cannot require that the dispute
should have manifested itself in a formal way ; according to the
Court’s view, it should be sufficient if the two Governments have in
fact shown themselves as holding opposite views in regard to the
meaning or scope of a judgment of the Court.” (Judgment No. 11,
1927, P.CLJ., Series A, No. 13, pp. 10-11.)

The question is therefore limited to whether the difference of views
between the Parties which has manifested itself before the Court is “a
difference of opinion between the Parties as to those points in thejudgment
in question which have been decided with binding force”, including “A
difference of opinion as to whether a particular point has or has not been
decided with binding force” (ibid., pp. 11-12).

47. In this respect, the Court considers it useful, before proceeding
further, to make certain observations as to the meaning of “binding force”
and the significance of the principle of res judicata in the circumstances of
the present case. Under the Special Agreement by which the Court was
originally seised, the role of the Court was limited to indicating the prin-
ciples and rules of international law applicable to the delimitation, and
specifying precisely the practical way in which they apply in the particular
situation ; the Parties undertook to meet to put into effect the principles
and rules to determine the line of delimitation, with a view to the conclu-
sion of a treaty (Art. 2 of the Special Agreement). It is always open to the
parties to a dispute to have recourse to a conjunction of judicial determi-
nation and settlement by agreement. In the special case of continental shelf
delimitation, one of the underlying principles is that “delimitation must be
the object of agreement between the States concerned” (North Sea Con-
tinental Shelf, I. C.J. Reports 1969, p. 46, para. 85).

48. The fact however that the Parties did not entrust the Court in this
case with the task of drawing the delimitation line itself in no way affects
the Judgment of the Court or its binding effect on the Parties as a matter of
res judicata ; and indeed the Court noted in 1982 that

“Articles 2 and 3 of the Special Agreement make it clear that the
Parties recognize the obligation to comply with the Judgment of the
Court.” (CJ. Reports 1982, p. 40, para. 30.)

30
219 APPLICATION FOR REVISION (JUDGMENT)

It will be the treaty contemplated by Article 2 of the Special Agreement
which will contain the final delimitation. The treaty will however be the
implementation of an obligation already entered into, in Article 2 of the
Special Agreement ; and that provision is not a bare pactum de contra-
hendo. The Parties have undertaken not merely to conclude a treaty, but in
doing so to apply the principles and rules indicated by the Court in its 1982
Judgment. While the Parties requested the Court to indicate “what prin-
ciples and rules of international law may be applied for the delimitation of
the area of the continental shelf”, they may of course still reach mutual
agreement upon a delimitation that does not correspond to that decision.
Nevertheless, it must be understood that in such circumstances their
accord will constitute an instrument superseding their Special Agreement.
What should be emphasized is that, failing such mutual agreement, the
terms of the Court’s Judgment are definitive and binding. In any event
moreover, they stand, not as something proposed to the Parties by the
Court, but as something established by the Court.

49. It follows that it is not possible to argue a priori that any specific
indications as to angles, distances or co-ordinates to be found in the 1982
Judgment are necessarily, because of the limitations placed on the role of
the Court by the Special Agreement, to be read as no more than approxi-
mations or “guidance” — a term used by Libya in 1982, and specifically
rejected by the Court (1.C.J. Reports 1982, p. 40, para. 29). The Court made
it clear that

“the degree of precision which is, in its view, called for, will be
apparent when it comes to indicate the practical method for appli-
cation of the relevant principles and rules” (ibid, para. 30) ;

and the method in fact differed for the two sectors of the delimitation.
However, the opposite presumption would also be false : in particular, it is
not to be supposed that all figures used in the Judgment would have to be
regarded as absolute. Each such reference must be read in its context,
to establish whether the Court intended it as a precise statement, an ap-
proximation for working purposes, or a simple indication subject to
variation.

50. In its Application, Tunisia states that the object of the request for
interpretation, so far as concerns the first sector of the delimitation, is

“to obtain some clarifications, notably as regards the hierarchy to be
established between the criteria adopted by the Court, having regard
to the impossibility of simultaneously applying these criteria to deter-
mine the starting-point of the delimitation line as well as the bearing
of that line from due north”.

Tunisia further argues that “the boundary to be taken into consideration
for the establishment of a delimitation line can only be the south-eastern
boundary of the Tunisian permit of 1966” ; it has presented a detailed
submission on the question of interpretation designed to give effect to that
contention. However, in the course of its examination of the request for re-

31
220 APPLICATION FOR REVISION (JUDGMENT)

vision of the 1982 Judgment, the Court has already explained (paragraph 33
above) that that Judgment laid down a single precise criterion for the
drawing of the line, namely that it is to bea straight line drawn through two
specifically defined points, a criterion involving simply the application of
the experts’ professional knowledge in the field of geodesy and cartogra-
phy. The request for interpretation is therefore founded upon a misreading
of the purport of the relevant passage of the operative clause of the 1982
Judgment. The Court therefore finds the Tunisian request for interpreta-
tion in the first sector to be admissible, but is unable to uphold Tunisia’s
submission as to the correct interpretation of the Judgment in this respect ;
and since it has been possible for the Court to clear up the misunder-
standing in the course of its reasoning on the admissibility of the request
for revision, the Court considers that there is nothing to be added to what it
has already said as to the meaning and scope of the 1982 Judgment in that
reasoning.

*
* *

51. Tunisia has also sought from the Court in the present proceedings
“The rectification of an error”, the final submission of Tunisia in this
respect being

“That there is cause to replace the co-ordinates 33° 55’ N, 12° E,
mentioned in section C (2) of paragraph 133 of the Judgment of
24 February 1982, with the co-ordinates 33° 50’ 17” N, 11° 59’ 53” E

If this correction is made, the point so defined will be the point at
sea through which the delimitation line must pass ; there will there-
fore be no need for the experts to calculate it.”

This submission is based upon the view expressed by Tunisia that the
criterion whereby the delimitation line should run at the angle formed by
aligning the Libyan concessions on the Tunisian permit is “in truth the ratio
decidendi of the Judgment”. As noted in paragraph 36 above, Tunisia
recalls that its permit chronologically preceded the Libyan concessions,
and deduces that

“If there was to be any alignment, this could only arise from the
Libyan concession being aligned with the south-eastern boundary of
the Tunisian permit...”

Accordingly, in Tunisia’s view,

“alignment on the Tunisian permit without encroachment in the
delimitation area . . . can be achieved solely by drawing a straight line
from the frontier point of Ras Ajdir through point 33° 50’ 17” N and
11° 59° 53” E, which is the most easterly point of the Tunisian per-
mit... There is therefore cause to correct an error by substituting the
co-ordinates of that point for the co-ordinates 33° 55’ N 12° E mis-
takenly mentioned by the Court on the basis of the inexact indications
given by Libya in its pleadings.”

32
221 APPLICATION FOR REVISION (JUDGMENT)

52. It will be apparent from what has gone before that the choice by the
Court of the point 33° 55’ N, 12° E to define the delimitation line drawn
seawards from the intersection of the line joining that point to Ras Ajdir
was not the result of the application of a criterion whereby the delimitation
line had to avoid encroachment on the Tunisian permit, or a more general
criterion of avoidance of overlapping. As observed above (paragraph 36),
that point, taken from the description by Libya of the position of its
Concession No. 137, was chosen as a convenient concrete means of
defining the 26° line from Ras Ajdir which appeared to the Court, from the
balancing-up of relevant considerations, to be the appropriate method of
effecting an equitable delimitation, and is integral to the whole construc-
tion. Accordingly, the application. of Tunisia proves in this respect to be
based upon a misreading of the Judgment, and has thus become without
object. There is therefore no need for the Court to examine the wider
question of the correction of an error in a judgment.

*
* *

53. The Court now turns to the request made by Tunisia for an inter-
pretation of the 1982 Judgment in so far as it concerns the second sector of
the delimitation line contemplated by that Judgment. The turning point
between the two sectors of that line was defined by the Court as follows.
After noting that there was a radical change in the general direction of the
Tunisian coastline marked by the Gulf of Gabes (para. 122), the Court
said :

“The change in direction of the coast is... a fact which must be
taken into account ; and the Court considers that an appropriate
point on the coast to be employed as a reference-point for reflecting
that change in the delimitation, and one which has the advantage of
being susceptible of objective determination, as a matter of geogra-
phy, is the most westerly point of the Tunisian coastline between Ras
Kaboudia and Ras Ajdir, that is to say, the most westerly point on the
shoreline (low-water mark) of the Gulf of Gabes. Again the precise
co-ordinates of this point will be for the experts to determine, but it
appears to the Court that it will be approximately 34° 10’ 30” north.”
U.C.J. Reports 1982, p. 87, para. 124.)

In the operative clause of the Judgment, it was provided that the first sector
of the line was to run on the bearing of approximately 26°, defined as
explained above,

“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 shoreline
(low-water mark) of the Gulf of Gabes” (ibid, p. 94, para. 133 C

(2)).
33
222 APPLICATION FOR REVISION (JUDGMENT)

No co-ordinates, even approximate, were indicated in the operative part of
the Judgment to identify what in the Court’s view was “the most westerly
point” of the Gulf of Gabes. According to Tunisia, the role of the Parties’
experts is “to determine the precise location of this point [the most westerly
point on the shoreline] by all existing means, including the use of maps and
topographical surveys” ; and the indication of the parallel 34° 10’ 30”
north was given by the Court “without rigour (‘approximately’) and for the
purpose of facilitating the description of the method to be prescribed by
the Court for drawing the second sector of the delimitation line”. The
Libyan experts, Tunisia states, “have clung to co-ordinate 34° 10’ 30” N,
insisting that it had been given by the Court’s Judgment and that the
experts should confine themselves to a strict application of that Judg-
ment”.

54. The dispute between the Parties as regards the second sector thus
centres round the relationship between

“the most westerly point of the Tunisian coastline between Ras
Kaboudia and Ras Ajdir, that is to say, the most westerly point on the
shoreline (low-water mark) of the Gulf of Gabes”,

and the intersection of the shoreline by the parallel 34° 10’ 30” north,
mentioned in paragraph 124 of the Judgment. In reply to a question by a
Member of the Court, Tunisia explained that in its view the co-ordinates
34° 10’ 30” north given in the Judgment do not have any binding character
on the Parties, since they are not repeated in the operative part of the
Judgment. The expert consulted by Tunisia advises that the most westerly
point on the shoreline of the Gulf is at 34° 05’ 20” N (on the Carthage
geodetic system) or 34° 05’ 30” N (on the ED 50 geodetic system). For
reasons to be examined in a moment, that expert rejects the point, in the
region of 34° 10’, where “a tidal channel runs into [the mouth of a wadi] as
far as a more westerly longitude than that of the points considered” earlier
in his report. Libya, on the other hand, regards the task of the experts as
“technical but of a very narrow scope, since the Court had already made its
own preliminary, yet very precise, calculation” ; the plotting of the point left
to the experts was “a matter perhaps of seconds, not minutes or degrees”.
For Libya, the 1982 Judgment makes it clear that, in the Court’s view,
the change in the direction of the Tunisian coast occurs at the point des-
cribed by the Court with some precision, namely at the latitude of
34° 10’ 30” N.

55. For the purposes of the conditions of admissibility of a request for
interpretation, set out in paragraph 44 above, it may be noted that there is
thus clearly a dispute between the Parties as to the significance, for the
interpretation of the expression “the most westerly point” of the Gulf of
Gabes, of the presence of a tidal channel in the region of latitude 34° 10’.
More fundamentally, there is a dispute as to what in the 1982 Judgment has
been decided with binding force : whether it was decided that the turning
point between the first and second sectors of the delimitation line should

34
223 APPLICATION FOR REVISION (JUDGMENT)

be on the parallel of a point on the Tunisian shoreline already identified by
the Court as furthest to the west, and lying on, or very near, the parallel
34° 10’ 30” ; or whether the Court merely found that the parallel to
determine the turning point should be drawn through whatever the Parties’
experts might regard as the most westerly point of the Gulf, whether or not
it lay in the neighbourhood of 34° 10’ 30”. This formulation of the dispute
does not however imply that the Court has to choose between the two
possible interpretations thus enunciated. As the Permanent Court ob-
served, “the Court does not consider itself as bound simply to reply ‘yes’ or
‘no’ to the propositions formulated in the submissions” of one or the other
party, “because, for the purpose of the interpretation of a judgment, it
cannot be bound by formulae chosen by the Parties concerned, but must
be able to take an unhampered decision” (P.C.LJ., Series A, No. 13,
pp. 15-16).

56. It is however a condition of admissibility of a request for interpre-
tation, as already noted, not only that there be a dispute between the
parties as to the meaning or scope of the judgment, but also that the real
purpose of the request be to obtain an interpretation — a clarification of
that meaning and scope. In the present case Libya has contended that
while in form the submission of Tunisia in respect of the second sector of
the delimitation is a request for interpretation, behind it “lies another
request for revision of the Judgment” ; that “the real object of the Appli-
cation is a substantial revision of the Court’s Judgment”. However, the
Court has established that there is a dispute between the Parties as to what,
on a particular question, the Court decided with binding force in the 1982
Judgment ; and it is also clear that Tunisia is asking the Court for “clari-
fication of the meaning and scope of what the Court has decided” in that
respect. So far as the Tunisian request for interpretation may go further,
and seek “to obtain an answer to questions not so decided”, or to achieve a
revision of the Judgment, no effect can be given to it ; but within the limits
defined by Article 60 of the Statute, it is admissible. Consequently, the
Court will examine the contentions of Tunisia under this head solely in so
far as they relate to the subject of Article 60 of the Statute, namely, the
meaning and scope of the 1982 Judgment.

57. As already noted, ever the expert consulted by Tunisia recognizes
that there is on the Tunisian coast, in the region of the parallel 34° 10’ 30”
north indicated by the Court, a point where tidal waters extend as far as a
more westerly longitude than any of the other points considered by him.
The reason why the expert nevertheless rejects the point appears to be
twofold : in the first place, he assimilates it to

“a localized feature which is entirely independent of the general
morphology of the Gulf and cannot reasonably be considered as
marking the point where the general direction of the coastline moves
from northwest to northeast — that being the criterion chosen by the
Court to determine the latitude at which the bearing of the maritime

35
224 APPLICATION FOR REVISION (JUDGMENT)

delimitation line should be modified (Judgment, paras. 123 and
124)”.

Secondly, the expert expresses the view that

“For the purpose of [the] determination [of the latitude where the
coast changes direction], the low-water line must be considered as
closed by the continuity existing on either side of the low-tide eleva-
tion which splits the channel in two where it meets the sea. Despite the
insignificant size of the channels, this closure may, if one so wishes, be
interpreted as an estuary closing line replacing at this spot the phy-
sical low-water line in conformity with the law governing the defini-
tion of baselines.”

In its reply to a question put by a Member of the Court, Tunisia indicated
more specifically that, in its contention, if the Court had been aware that
the parallel 34° 10’ 30” north intersected the coast in the mouth of a
wadi,

“it would have borne in mind that, under Article 13 of the 1958
Convention on the Territorial Sea and the Contiguous Zone, the text
of which embodies customary law and has been taken up into Article 9
of the Montego Bay Convention, the shoreline (low-water mark) at a
mouth is a straight line drawn between the points on the low-tide line
of the banks”.

Libya on the other hand dismisses the presence of a wadi as irrelevant,
since “in Libya’s view the task assigned to the experts was not to identify
baselines but, quite specifically, to identify the most westerly point on the
low-water mark”.

58. So far as the first difficulty raised by the expert consulted by Tunisia
is concerned, it should be recalled that in its 1982 Judgment the Court was
careful not to indicate that the delimitation line should “change direction
in relation to the point at which the coastline changes direction”, since it
considered that the latter point would “not necessarily be the subject of
agreement among geographers or cartographers, and in short cannot be
objectively determined as a matter of fact” (C.J. Reports 1982, p. 87,
para. 123). If the Court were to employ the change of direction as criterion,

“it would be leaving room for extensive disagreement between the
experts of the Parties, which would not necessarily be capable of final
resolution. This would not, it seems to the Court, be a proper dis-
charge of its duty to indicate the practical method of delimitation in
such a way as to enable the experts to effect the delimitation ‘without
any difficulties’.” (Ibid.)

The Court took the view that

“an appropriate point on the coast to be employed as a reference-
point for reflecting that change in the delimitation, and one which has
the advantage of being susceptible of objective determination as a

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matter of geography, is the most westerly point of the Tunisian
coastline between Ras Kaboudia and Ras Ajdir, that is to say the most
westerly point on the shoreline (low-water mark) of the Gulf of
Gabes” (.C.J. Reports 1982, p. 87, para. 124).

If however one of the criteria for determining the “most westerly point on
the shoreline” were whether a given point could “reasonably be considered
as marking the point where the general direction of the coastline moves
from northwest to northeast”, the experts of the Parties would be thrown
back on to the problem of the location of the point of change of direction,
which the Court had excluded as one which “cannot be objectively deter-
mined as a matter of fact”. The Court meant by “the most westerly point
on the shoreline (low-water mark) of the Gulf of Gabes” simply the point
on the shoreline which is further to the west than any other point on the
shoreline ; it did not mean “the most westerly point which could reason-
ably be considered as marking the point where the general direction of the
coastline changes”. The relationship between the two concepts, that of the
“most westerly point” and that of the “change of direction” is not that the
one defines the other, but simply that, bearing in mind the difficulties of
definition of the latter concept, the former is “an appropriate point . . . to
be employed as a reference-point for reflecting” the latter.

59. As to the relevance of the alleged presence of a wadi at approxi-
mately the latitude referred to by the Court, the fact is again that the Court,
by referring to “the most westerly point on the shoreline (low-water mark)
of the Gulf of Gabes” meant exactly what it said, the expression “low-
water mark” being intended to refer to an established concept. Had its
intention been to refer to the most westerly point on the baselines from
which the breadth of the territorial sea was, or might be, measured, it would
have said so. Furthermore, the Court itself recorded in the 1982 Judg-
ment that a Tunisian Law of 2 August 1973 and a Tunisian Decree of
3 November 1973 had in fact defined straight baselines in the area, declared
the closing of the Gulf of Gabes by a straight line, and declared that the
waters of the Gulf were “internal waters”. The Court also noted that Libya
considered that those lines were not opposable to Libya U.C.J. Reports 1982,
pp. 74-75, para. 101). The Court was therefore well aware that Tunisia was
not claiming to draw straight baselines between comparatively minor fea-
tures of the coast of the Gulf of Gabes, since it regarded the whole of the Gulf
as internal waters. The Court also took care to avoid making any unnecessary
ruling on the validity of the Tunisian baselines and claim to internal waters
(ibid, pp. 76-77, para. 105). In these circumstances, the contention that the
Court would have applied the law relating to straight baselines, and speci-
fically Article 13 of the 1958 Geneva Convention on the Territorial Sea and
the Contiguous Zone, within the Gulf of Gabes, to exclude from its definition
of the “most westerly point” a point lying in the mouth of a wadi, must be
regarded as untenable.

60. The above explanation suffices to dispose of one of the questions in

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dispute between the Parties as to the meaning and scope of the 1982
Judgment. There remains the question of the significance to be attached to
the Court’s reference to the latitude 34° 10’ 30” north. As Tunisia has
pointed out, that specific reference is not to be found in the operative part
of the 1982 Judgment ; yet Libya contends that it has been decided by the
Court that the change in direction of the coastline in the Gulf of Gabes
occurs at 34° 10’ 30” north, and that it is not open to the experts of either
Party to substitute their own views on that point. It must however be
reiterated that the Court in 1982 was not concerned to identify the point of
change of direction — a question on which it recognized that there was
room for disagreement — but simply the most westerly point on the
shoreline of the Gulf of Gabes “as a reference-point for reflecting that
change” (1. C.J. Reports 1982, p. 87, para. 124). The Court then expressly
stated that “the precise co-ordinates of this point will be for the experts to
determine” before adding that “it appears to the Court that it will be
approximately 34° 10’ 30” north” (ibid). The Court had thus already
indicated the approximate position of that point. It should not be over-
looked that during the proceedings leading up to the 1982 Judgment
neither Party submitted to the Court any large-scale charts or maps of the
Gulf ; and on the small-scale maps then before the Court, the “most
westerly point” appears within a small nick in the coastline. While leaving
it to the experts to determine its “precise co-ordinates”, the Court never-
theless stated that it appeared to it that the point was at approximately
34° 10’ 30” north.

61. It was of course necessary for the Court in 1982 to have some
reasonably accurate idea of the latitude of the most westerly point in order
to assess properly the effect on the delimitation of the change in direction
of the line which it had found to be appropriate (paras. 122 to 123 of the
1982 Judgment). The discussion by the Court of the effect to be attributed
to the Kerkennah Islands (paras. 127-129), and of the requirements of the
test of proportionality (paras. 130-131) would have been wholly unrealistic
unless the Court had before it some indication of the latitude at which the
angle of the delimitation line was to change. It therefore employed a
specified latitude, namely 34° 10’ 30” north, as a working definition of the
point it had in mind. The working definition thus employed was not
binding on the Parties ; in this respect, it is significant, first that the
mention of that latitude was qualified by the word “approximately”, and
secondly that the operative part of the Judgment did not mention the
latitude in question. However, what was specified in the operative part of
the Judgment (para. 133 C (3)) was the effect to be given to the Kerkennah
Islands, a paragraph of the decision the whole of which must be respected
as given with binding force.

62. It follows that the Court is unable to uphold the final submission of
Tunisia on this point, that “the most westerly point of the Gulf of Gabes
lies on latitude 34° 05’ 20” N (Carthage). The Court expressly decided in
1982 that “the precise co-ordinates of this point will be for the experts to
determine” (para. 124), and it would not be consistent with that decision

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227 APPLICATION FOR REVISION (JUDGMENT)

for the Court to state that a specific co-ordinate constituted the most
westerly point of the Gulf of Gabes.

63. To sum up, the task of the experts of the Parties is, so far as regards
the determination of the latitude at which the bearing of the delimitation
line is to change, as follows. That latitude is, as made clear in the 1982
Judgment, to be that of the most westerly point on the shoreline (low-water
mark) of the Gulf of Gabes. It has however also to be borne in mind that
the working definition of the latitude in question, though stated “approxi-
mately”, was the basis for the effect given to the Kerkennah Islands in
paragraph 133 C (3) of the Judgment. Employing for the purpose whatever
charts and maps they may consider appropriate, but disregarding any
actual or potential straight baselines, the experts should seek to define on
the low-water mark the most westerly point of the Gulf of Gabes. If, as
appears from the report of the expert consulted by Tunisia, the tidal waters
of the Gulf attain their most westerly reach in a channel leading up to a
wadi, that geographical circumstance should be accepted as it is. Should it
prove that such channel clearly extends further west than any other point
on the low-water mark of the coast of the Gulf, but the cartographic or
other material available does not suffice to establish the exact position of
the most westerly point on the low-water mark within the channel, then it
will be for the Parties, with the assistance of their experts, to decide
whether to adopt in this respect the indications given by the existing maps,
or whether to proceed to a special survey in loco.

64. The Court must now deal with the final submission of Tunisia,
namely

“That there is cause to order an expert survey for the purpose of
ascertaining the exact co-ordinates of the most westerly point of the
Gulf of Gabes.”

This submission was presented by Tunisia “altogether subsidiarily”. How-
ever, since the Court is unable to uphold Tunisia’s main submission as
regards the second sector of the delimitation indicated in the 1982 Judg-
ment (namely “That the most westerly point of the Gulf of Gabes lies on
latitude 34° 05’ 20” N (Carthage)”), the Court would not be disposing
fully of the case if it were not to deal with the subsidiary submission. That
submission was presented only in the course of the oral. proceedings ;
Libya, which contends that the application by Tunisia for interpretation is,
as a whole, unjustified, has not commented specifically on the request for
an expert survey. The request by Tunisia must therefore be regarded as a
unilateral one, but one to which Libya has not expressly objected.

65. Under Article 50 of its Statute, the Court has power “at any time” to

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228 APPLICATION FOR REVISION (JUDGMENT)

direct the carrying out of an enquiry, or to obtain an expert opinion. The
wording used in this provision is quite clear. At any time during proceed-
ings in a case, the Court is empowered to “entrust any individual, body,
bureau, commission, or other organization that it may select, with the task
of ... giving an expert opinion”. However, this provision must be read in
relation to the terms in which jurisdiction is conferred upon the Court in a
specific case ; the purpose of the expert opinion must be to assist the Court
in giving judgment upon the issues submitted to it for decision. In the
present case, therefore, it would be appropriate to accede to the request of
Tunisia only if the determination of the exact co-ordinates of the most
westerly point of the Gulf of Gabes were required to enable the Court to
give judgment on the matters submitted to it. The Court is however at
present seised of a request for interpretation of a previous judgment ; and
as the Permanent Court of International Justice observed, such an inter-
pretation :

“adds nothing to the decision, which has acquired the force of res
judicata, and can only have binding force within the limits of what was
decided in the judgment construed” (Interpretation of Judgments
Nos. 7 and 8 (Factory at Chorzôw), Judgment No. 11, 1927, P.C.LJ.,
Series A, No. 13, p. 21).

Already, in its 1982 Judgment, the Court stipulated that it did not purport
to determine the exact co-ordinates of the most westerly point of the Gulf
of Gabes ; on the contrary, as pointed out in paragraph 60 above, it stated
expressly that “the precise co-ordinates of this point will be for the experts
to determine” (1.C.J. Reports 1982, p. 87, para. 124). It is clear that it is to
the experts of the Parties that the Court is referring, even if it does not
specifically say so, not to an expert appointed by the Court.

66. The question before the Court is what it can now do in regard to
Tunisia’s subsidiary request relating to the second sector of delimitation,
having taken a decision, within the jurisdiction conferred upon it by the
Parties’ Special Agreement, to leave to the experts of these Parties the task
of establishing the exact co-ordinates of the most westerly point of the
shoreline (low-water mark) of the Gulf of Gabes. The Court in its 1982
Judgment could of course have determined this point, if necessary by
appointing an expert for the purpose, since according to the Court the
point was a necessary element in the decision as to the practical method to
be used. Nevertheless it did not do so, preferring to leave this task to the
experts of the Parties. Its decision in this respect is covered by the force of
res judicata. This does not, however, mean that the force of res judicata is
such as to prevent the Parties returning to the Court to present a joint
request that it should order an expert survey to establish the precise
co-ordinates of the most westerly point of the Gulf of Gabes. But they
would have to do so by means of an agreement. At all events, this point is
susceptible of geographical determination, despite the circumstances that
it may lie in the mouth of a wadi.

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229 APPLICATION FOR REVISION (JUDGMENT)

67. Whether, and in what circumstances, the Court might in the future
give effect to a request to appoint an expert submitted by one party only,
does not fall to be considered at the present time. The Parties have, in their
Special Agreement, undertaken an obligation to conclude a treaty for the
purpose of the delimitation. An obligation to negotiate entails for the
parties to it

“an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when either of them insists
upon its own position without contemplating any modification of it”
(North Sea Continental Shelf, C.J. Reports 1969, p. 47, para. 85
(a).
This must a fortiori be so where, as the Court has noted above (para-
graph 48), there is an obligation to conclude a treaty. It is not for the Court
to contemplate the contingency of such an obligation not being complied
with (cf. S.S. “Wimbledon”, Judgments, 1923, P.C.I.J., Series A, No. 1,
p. 32; Factory at Chorzéw, Merits, Judgment No. 13, 1928, P.C.LJ.,
Series A, No. 17, pp. 62-63). Yet, judging by what has been brought to the
attention of the Court by the two Parties in the present proceedings, no
progress has been made in implementing the Special Agreement following
the 1982 Judgment.

68. Thus the Court is bound to note that the obligation still rests upon
both Parties to carry out the Special Agreement to the very end, and to have
the 1982 Judgment implemented so that the dispute is finally disposed of.
Thus the Parties must ensure that their experts and representatives engage
in a Sincere exercise involving a genuine effort to determine the precise
co-ordinates of the most westerly point on the shoreline (low-water mark)
of the Gulf of Gabes, in the light of the indications furnished in the present
Judgment, with a view to the conclusion of the delimitation treaty.

69. For these reasons,

THE COURT,

A. Unanimously,

Finds inadmissible the request submitted by the Republic of Tunisia for
revision, under Article 61 of the Statute of the Court, of the Judgment given
by the Court on 24 February 1982 ; -

B. Unanimously,

(1) Finds admissible the request submitted by the Republic of Tunisia
for interpretation, under Article 60 of the Statute of the Court, of the

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230 APPLICATION FOR REVISION (JUDGMENT)

Judgment of 24 February 1982 as far as it relates to the first sector of the
delimitation contemplated by that Judgment ;

(2) Declares, by way of interpretation of the Judgment of 24 February
1982, that the meaning and scope of that part of the Judgment which
relates to the first sector of the delimitation are to be understood according
to paragraphs 32 to 39 of the present Judgment ;

(3) Finds that the submission of the Republic of Tunisia of 14 June 1985
relating to the first sector of the delimitation, cannot be upheld ;

C. Unanimously,

Finds that the request of the Republic of Tunisia for the correction of an
error is without object and that the Court is therefore not called upon to
give a decision thereon ;

D. Unanimously,

(1) Finds admissible the request submitted by the Republic of Tunisia
for interpretation, under Article 60 of the Statute of the Court, of the
Judgment of 24 February 1982 as far as it relates to the “most westerly
point of the Gulf of Gabes” ;

(2) Declares, by way of interpretation of the Judgment of 24 February
1982,

(a) that the reference in paragraph 124 of that Judgment to “approxi-
mately 34° 10’ 30” north” is a general indication of the latitude of the
point which appeared to the Court to be the most westerly point on the
shoreline (low-water mark) of the Gulf of Gabes, it being left to the
experts of the Parties to determine the precise co-ordinates of that
point ; that the latitude of 34° 10’ 30” was therefore not intended to be
itself binding on the Parties but was employed for the purpose of
clarifying what was decided with binding force in paragraph 133 C (3)
of that Judgment ;

(b) that the reference in paragraph 133 C (2) of that Judgment to “the most
westerly point of the Tunisian coastline between Ras Kaboudia and
Ras Ajdir, that is to say, the most westerly point on the shoreline
(low-water mark) of the Gulf of Gabes”, and the similar reference in
paragraph 133 C (3) are to be understood as meaning the point on that
shoreline which is furthest to the west on the low-water mark ; and

{c) that it will be for the experts of the Parties, making use of all available
cartographic documents and, if necessary, carrying out an ad hoc
survey in loco, to determine the precise co-ordinates of that point,
whether or not it lies within a channel or the mouth of a wadi, and
regardless of whether or not such point might be regarded by the
experts as marking a change in direction of the coastline ;

(3) Finds that the submission of the Republic of Tunisia, “that the most
westerly point of the Gulf of Gabes lies on latitude 34° 05’ 20” N (Car-
thage)’, cannot be upheld ;

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231 APPLICATION FOR REVISION (JUDGMENT)

E. Unanimously,

Finds that, with respect to the submission of the Republic of Tunisia of
14 June 1985, there is at the present time no cause for the Court to order an
expert survey for the purpose of ascertaining the precise co-ordinates of the
most westerly point of the Gulf of Gabes.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this tenth day of December, one thousand
nine hundred and eighty-five, in three copies, one of which will be placed in
the archives of the Court and the others transmitted to the Government of
the Republic of Tunisia and to the Government of the Socialist People’s
Libyan Arab Jamahiriya, respectively.

(Signed) NAGENDRA SINGH,
President.

(Signed) Santiago TORRES BERNARDEZ,
Registrar.

Judges RUDA, Opa and SCHWEBEL and Judge ad hoc BASTID append
separate opinions to the Judgment of the Court.

(Initialled) N.S.
(Initialled) S.T.B.

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