157

DISSENTING OPINION OF JUDGE ODA*

1. To my profound regret, I find myself unable to share the views of the
Court on many essential points. First of all, the Court fails, in my view, to
arrive at a proper appreciation of the “trends” at the Third United Nations
Conference on the Law of the Sea, and interprets them simply by looking at
a few provisions now standing in the draft convention. The Court largely
ignores the changes that have occurred in the concept of the continental
shelf and the impact that the new concept of the Exclusive Economic Zone
may have on the exploitation of submarine mineral resources. It will be
surprising to any student of the law of the sea to find that the words
“Exclusive Economic Zone” appear only once in this lengthy Judgment,
and then only in connection with historic sedentary-fishing rights
(para. 100). Secondly, the Court suggests as the positive principles and
rules of international law to apply in this case only equitable principles and
the taking into account of all relevant circumstances (para. 133, A). This
merely amounts to an uninformative rearrangement of the terms of the
main question put to it. It appears simply to suggest the principle of
non-principle. The Judgment does not even attempt to prove how the equi-
distance method, which has often been maintained to embody a rule of law
for delimitation of the continental shelf, would lead to an inequitable
result. Indeed, it gives that method rather short shrift. Furthermore, the
line suggested by the Court in dealing with the practical method to be
employed in application of the (unspecified) principles is not grounded on
any persuasive considerations. It is in particular entirely obscure why it
should feature a veering point at the parallel of the most westerly point on
the coastline of the Gulf of Gabes. The Judgment appears, to my eyes,
simply as one appropriate to a case ex aequo et bono such as might have
been decided, if the Parties so agreed, in accordance with Article 38,
paragraph 2, of the Statute. But the present case is certainly not one of that
kind. Thus I feel bound to submit my own analysis of it, and, since it is my
duty to found my assertions, this will involve going into considerable detail
upon most of the essential points.

2. My analysis will be presented in the following order : Chapter I —
Trends at the Third United Nations Conference on the Law of the Sea and
the status of the draft convention on the Law of the Sea ; Chapter II — The
traditional concept of the continental shelf ; Chapter III — Sedentary
fisheries and historic rights ; Chapter IV — New trends in the concept of

* A synoptical table of contents appears at the end.

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the continental shelf ; Chapter V — Impact of the concept of the exclusive
economic zone on the concept of the continental shelf; Chapter VI —
Trends in the delimitation of the continental shelf/exclusive economic
zone at the Third United Nations Conference on the Law of the Sea ;
Chapter VII — Principles and rules of the delimitation of the continental
shelf/exclusive economic zone ; Chapter VIII — Practical method sug-
gested.

CHAPTER I. TRENDS AT THE THIRD UNITED NATIONS CONFERENCE
ON THE LAW OF THE SEA AND THE STATUS OF THE
DRAFT CONVENTION ON THE LAW OF THE SEA

Section I. “Trends” as Interpreted by Tunisia and Libya

3. The Court had been requested, under Article 1, paragraph 1, of the
Special Agreement signed by Tunisia and Libya on 10 June 1977, to render
its judgment as to “Quels sont les principes et règles du droit international
qui peuvent être appliqués pour la délimitation” (according to the French
text supplied by Tunisia), or “What principles and rules of international
law may be applied for the delimitation” (according to the English text
furnished by Libya), of the area of the continental shelf appertaining to
Tunisia and the area of the continental shelf appertaining to Libya, and in
rendering its judgment the Court (according to the Tunisian text) is
required “de tenir compte” of equitable principles and the relevant cir-
cumstances which characterize the area, as well as the “tendances récentes
admises”, or (according to the Libyan text), “the Court shall take its
decision according to equitable principles, and the relevant circumstances
which characterize the area, as well as the new accepted trends” in the
Third United Nations Conference on the Law of the Sea (UNCLOS HI). I
use these French expressions in addition to the English ones because of
alleged discrepancies between the translations made from the original
Arabic into French by Tunisia and into English by Libya. Putting the last
part first, it seemed clear that it would be indispensable, in ascertaining
“the principles and rules of international law” to apply for the delimitation
of the continental shelf, to take account of “equitable principles” and of
“the relevant circumstances which characterize the area”. However, the
Parties professed to have divergent interpretations of the meaning of the
“tendances récentes admises” or “the new accepted trends” at UNCLOS
III, and of the role these should play in determining the “principles and
rules of international law”.

4. There were certain differences of opinion between Tunisia and Libya
as to how the “tendances récentes admises” or “the new accepted trends”
had taken shape. According to Tunisia, replying to a question I put to the
Parties at the hearing on 9 October 1981 :

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CONTINENTAL SHELF (DISS. OP. ODA)

“The Conference itself has determined the process whereby the
negotiating texts examined by it become admitted trends in the law of
the sea. Thus in 1978 (A/CONF.62/62 of 13 April 1978) it decided to
identify the outstanding issues still requiring negotiation, which
signified that any non-contested provision of the Informal Composite
Negotiating Text (ICNT), or any the contestation of which had been
deferred, constituted a trend admitted at that date (which was the case
with the concept of the exclusive economic zone, the régime of islands,
etc.).

The process of identifying the hard-core issues calling for further
negotiation and consultation with a view to reaching compromise
solutions, which would be adopted by consensus or be found gener-
ally acceptable, led to the specification of seven issues of which one
was the delimitation of maritime boundaries between adjacent and
opposite States. This means that Articles 74 and 83 of the 1977 ICNT
did not, at that stage, constitute trends admitted by the Confer-
ence.

The Conference had also laid down a process for the revision of the
ICNT whereby a provision could only be modified if the new wording
were adopted by a consensus or found by the “college” of the Con-
ference to be likely to offer a substantially improved prospect of a
consensus.

Thus this procedure, decided by consensus at a plenary sitting of
the Conference, does not leave any room at all for individual inter-
pretation of what may constitute an admitted trend. It is the Con-
ference itself which decides what is admitted, among the points which
had been left over for discussion, and its decision is expressed in the
form of amendment of the negotiating text, known as the ICNT in the
initial phase and as the draft convention (informal text) in the second
phase. Finally, the officialization of the draft convention decided at
the latest session definitively reinforced and crystallized the trends
admitted within the Conference, which now cover the whole of the
draft.”

Thus Tunisia considered the provisions of the draft convention on the Law
of the Sea (A/CONF.62/L.78) as reinforcing and crystallizing the “ten-
dances récentes admises”. Libya, on the other hand, took the following
view in its reply :

145

“The process by which new trends were accepted in the conference
was the ‘consensus method’ — which may or may not represent the
position of each State on the point. ‘Consensus’ is a device to permit
an appearance of agreement where voting would not. ‘Consensus’
may be influential in development of a rule of customary interna-
tional law, but adoption of a provision by ‘consensus’ at an interna-
tional conference does not by itself create such a rule.”
160 "CONTINENTAL SHELF (DISS. OP. ODA)

Libya thus did not make clear its views on how the draft convention
reflected new trends at UNCLOS III, but it does not apparently seem to
have been its opinion that the actual provisions of the draft convention
necessarily represented the “trends” of UNCLOS HI. What is more, in
1977, when the Special Agreement between Tunisia and Libya was con-
cluded, the decision of UNCLOS III recorded as A/CONF.62/62, and
quoted by Tunisia;had not yet been taken. Thus it must be pointed out that
both in 1977, the time of the conclusion of the Special Agreement, and in
1981, the time of the hearing, no common interpretation existed as to what
would reflect the “tendances récentes admises” or “the new accepted
trends”.

5. If the trends of UNCLOS III or the provisions of the draft conven-
tion on the Law of the Sea had become established principles and rules of
international law, particularly so far as concerns the delimitation of the
continental shelf, the Court would naturally have been bound to take them
into consideration in its judgment, even if it had not explicitly been asked
to do so by the provisions of the Special Agreement. However, neither
Tunisia nor Libya made the semantically contradictory suggestion that the
“tendances” or “trends” as such formed part of the principles and rules of
international law. Instead, Tunisia stated :

“The Tunisian Government considers that the ‘recent trends admit-
ted’ can form part of the principles and rules of international law to the
extent that they may already have given rise to a sufficiently abundant
practice to be considered as customary rules.” (Emphasis added.)

Libya, on the other hand, stated :

“ ‘Consensus’ may be influential in development of a rule of cus-
tomary international law, but adoption of a provision by ‘consensus’
at an international conference does not by itself create such a
tule” ;

and

“New accepted trends, within the meaning of Article 1 of the Spe-
cial Agreement, fall within the purview of the principles and rules of
international law for the purposes of that Article only if and so far as
the Court concludes that they are generally accepted by States so as to
have become principles and rules of customary international law.”
(Emphasis added.)

6. If the trends of UNCLOS III or the very provisions of the draft
convention on the Law of the Sea had not achieved the status of established
rules and principles of international law, how should the Court have
taken them into account under the Special Agreement of 1977 ? Tunisia
Stated :

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161 CONTINENTAL SHELF (DISS. OP. ODA)

“The ‘recent trends admitted’ which have not yet reached the
threshold of customary law are nevertheless to be taken into consid-
eration within the framework of Article 1, paragraph 1, of the Special
Agreement, not as elements of the applicable law, for the two Parties
are in agreement that the reference to these trends does not confer
upon the Court a power to decide ex aequo et bono, but as factors in the
interpretation of the existing rules.”

On the other hand, Libya stated simply: “[I]t is for the Court to decide
what weight should be given to any ‘new accepted trends’.” In view of
these cautious interpretations, and given the care taken by both Parties to
qualify even such limited endorsement as they accord the provisional
results of the Conference, it would seem that the express reference to the
trends of UNCLOS III in the Special Agreement of 1977 did not, in 1981,
have such great significance as is generally thought or may once have been
expected. The Court was not requested in delivering its Judgment to take
the trends of UNCLOS III into account as an element separate from the
principles and rules of international law, but was simply asked to have due
_ regard to those trends as material to aiding an understanding of what the
principles and rules of international law are. Yet it would have been
natural for the Court, even without any request to that effect, to pay due
regard to recent developments seen during the past decade in the course of
the deliberations of the United Nations Sea-bed Committee and UNCLOS
III, which may reflect the principles and rules of international law
today.

7. Furthermore, since some provisions of the draft convention on the
Law of the Sea were often referred to, both in the pleadings and at the
hearing, in connection with the delimitation of the continental shelf, it
would have been appropriate for the Court to express its general view on
the status of that document in relation to the principles and rules of
international law, and more especially to the development of that branch
of the law of the sea concerned with lateral delimitation. Such a pro-
nouncement would have involved the Court as a whole in a closer analysis
of prevailing trends than it has seen fit to perform, and such an analysis, as
I see it, ought to have led it to a more fundamental conclusion than
underlies its judgment, and to a correspondingly different approach. As
this analysis is essential to an explanation of my position, I propose to
begin it by first sketching out how the draft convention was prepared.

Section II. The “Consensus” Formula of the Third United
Nations Conference on the Law of the Sea

8. On 16 November 1973 the United Nations General Assembly, by
General Assembly resolution 3067 (XXVIII, adopted by 117-0-10 votes,
dissolved the United Nations Committee on the Peaceful Uses of the
Sea-bed and the Ocean Floor beyond the Limits of National Jurisdiction
(Sea-bed Committee), which had been functioning for the previous six

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years, and confirmed the decision taken by General Assembly resolution
3029 A (XXVIT) to hold UNCLOS III from the end of 1973 onwards. In
proposing the draft of this resolution to the Plenary Meeting, the First
Committee on 25 October 1973 approved the following “gentlemen’s
agreement” :

“Recognizing that the Conference at its inaugural session will
adopt... its procedures, including its rules regarding methods of
voting, and bearing in mind that the problems of ocean space are
closely interrelated and need to be considered as a whole and the
desirability of adopting a Convention on the Law of the Sea which will
secure the widest possible acceptance,

[The General Assembly] expresses the view that the Conference
should make every effort to reach agreement on substantive matters
by way of consensus ; that there should be no voting on such matters
until all efforts at consensus have been exhausted ; and further
expresses the view that the Conference at its inaugural session will
consider devising appropriate means to that end.” (A/C.1/PV.1936
(provisional).) (Emphasis added.)

9. However, at the first (organizational) session of UNCLOS IIL, held in
December 1973, no agreement was reached on the rules of procedure.
Efforts to achieve an agreement during the inter-sessional meetings in
February and June 1974 were also in vain. Difficulties mainly concerned
the voting procedure, which, the delegates considered, might determine the
character of the text to be adopted. The rules of procedure, discussions on
which were prolonged for more than a week at the second session in
Caracas, were finally adopted by the Conference on 27 June 1974. Just
before their adoption, Mr. H. S. Amerasinghe, the President of UNCLOS
Il, read out the following declaration, which was adopted by consen-
sus :

“Bearing in mind that the problems of ocean space are closely
interrelated and need to be considered as a whole and the desirability
of adopting a convention on the law of the sea which will secure the
widest possible acceptance,

The Conference should make every effort to reach agreement on
substantive matters by way of consensus and there should be no
voting on such matters until all efforts at consensus have been
exhausted.” (UNCLOS III, Official Records, Vol. I, p. 52.)

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Section III. Negotiating Texts

10. In the course of the second session, held in Caracas in 1974, which
was actually the first substantive session, a great number of proposals was
presented on subjects relating to the general problem of the law of the sea.
The Secretariat of the Conference prepared a Working Paper of the Second
Committee : Main Trends, the purpose of which was to “reflect in gen-
erally acceptable formulations the main trends which have emerged from
the proposals submitted” either to the Sea-bed Committee or to the Con-
ference itself and were to form a basis for its future work (A/CONF.62/
C.2/WP.1, UNCLOS III, Official Records, Vol. III, p. 106).

11. At the third session, in 1975, there were very few official sessions of
either the plenary or the three main committees. On 18 April 1975, the
only day of substantive discussions at the plenary meetings, the President
suggested that the chairmen of the three main committees should each
prepare a single negotiating text covering the subjects entrusted to his
committee, to take account of all the formal and informal discussions held
thus far. It was understood that the texts would not prejudice the position
of any delegation, and would not represent any negotiated text or accepted
compromise, and that they would be a basis for negotiation (UNCLOS III,
Official Records, Vol. IV, p. 26). Thereafter all the efforts of the chairmen
of the three main committees were directed towards the preparation of
such draft articles. Of course individual delegates were likely to have
submitted suggestions for inclusion in these draft articles, but no consul-
tations or negotiations among the delegates, or between the delegates and
the respective chairmen, were reported at all. However, on the final day of
the session, i.e., 9 May 1975, the President stated that the chairmen of the
three main committees had each drafted a single negotiating text (ibid, p.
27). The Informal Single Negotiating Text (ISNT) (A/CONF.62/ WP.8 ;
ibid., pp. 137 ff.) was circulated at the close of the session. The ISNT was a
mere compilation of the draft articles prepared and submitted separ-
ately by the chairmen of the three main committees, without even
a continuous through-numbering of the articles belonging to the three
separately prepared parts.

12. A note placed by the President of the Conference at the beginning of
the ISNT explained its character very well :

“In his concluding statement [on 18 April 1975]... the President
stressed that the single text should take account of all the formal and
informal discussions held so far, would be informal in character and
would not prejudice the position of any delegation nor would it
represent any negotiated text or accepted compromise. It should,
therefore, be quite clear that the single negotiating text will serve as a
procedural device and only provide a basis for negotiation. It must not

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in any way be regarded as affecting either the status of the proposals
already made by delegations or the right of delegations to submit
amendments or new proposals.” (Ibid. p. 137.)

The introduction to Part II, covering the subjects entrusted to the Second
Committee and written by the Chairman of the Second Committee, reads
in part as follows :

“The particular nature of this text did not allow the retention of all
the trends refiected in document A/CONF.62/C.2/WP.1 [Working
Paper : Main Trends, as referred to in para. 10 above] and in other
proposals submitted either to the Committee on the Peaceful Uses of
the Sea-Bed and the Ocean Floor beyond the Limits of National
Jurisdiction or to the Conference. The aim of the Conference in
adopting the new method for the future stage of its work would have
been defeated had all trends been retained in this text. It was possible
to amalgamate some of the alternative formulations but in other cases
it was necessary to choose between conflicting proposals. In certain
cases, a middle course was adopted.

The justification for the task entrusted to me is to be found in the
particular nature of the single negotiating text as defined by the
President and in the need to have a working instrument on the basis of
which the process of negotiations can be intensified. I have endeav-
oured to accomplish this task to the best of my ability and express the
hope that it will fulfil the purposes for which it was requested by the
Conference.” (Ibid., p. 153.)

13. At the beginning of the fourth session, in the spring of 1976, the
President of the Conference indicated that the next step should be the
preparation by the chairmen of the three main committees of a revised
single negotiating text in respect of each of their committees, and that this
revised text would reflect, as far as possible, the result of the informal
negotiations which had already taken place. Almost all the deliberations at
this session were, in fact, held during informal meetings in camera, but
various groups, regional or functional, also held a number of informal
consultations. No report was submitted to the plenary meeting by the
chairmen of the three main committees, and no single report on the work of
the working groups within the main committees is to be found. What is
clear is that on the last day of the session the Revised Single Negotiating
Text (RSNT), consisting of three separate texts, with again separately
numbered articles submitted by each of the three committees, was circu-
lated (A/CONF.62/WP.8/Rev.1 ; UNCLOS III, Official Records, Vol. V,

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pp. 125 f.). The note by the President, attached to this text, reads in part as
follows :

“These texts have been prepared entirely on their own responsi-
bility [i.e., that of the chairmen of the three committees] and will have
no other status than that of serving as a basis for continued negoti-
ation without prejudice to the right of any delegation to move any
amendments or to introduce any new proposals. The texts must
not be regarded as committing any delegation or delegations to any
of their provisions.” (Ibid.)

14. During the fifth session, in the summer of 1976, there was not one
official meeting of the Second Committee. All the deliberations concerning
general problems of the law of the sea were held in informal meetings of the
committee or in its negotiating groups. However, the report by the Chair-
man of the Second Committee, presented to the Plenary, reflects a general
idea of the work which had been done in the Second Committee during this
session. Six important subjects were given priority in this session and
entrusted to five different negotiating groups for discussion, among them
being “Definition of the outer edge of the continental margin” and “De-
limitation of the territorial sea, the exclusive economic zone and the
continental shelf between adjacent or opposite States”. (Zbid, Vol. VI,
p. 136.)

15. For the sixth session, in 1977, there are also very few documents
describing the deliberations on the subject, but immediately after the
adjournment of this session the Informal Composite Negotiating Text
(ICNT) (A/CONF.62/WP.10 ; ibid, Vol. VIII) was circulated, in which,
for the first time, articles were consecutively numbered from 1 to 303. A
memorandum by the President of the Conference, attached to the ICNT
reads, in part, as follows :

“It was understood that while the President would be free to proffer
his own. suggestions on the proposed provisions of any part of the
composite text, in regard to any matter which fell within the exclusive
domain of a particular chairman that chairman’s judgement as to the
precise formulation to be incorporated in the text should prevail. The
adoption of this procedure was a recognition of the fact that each
chairman was in the best position to determine, having regard to the
negotiations that had taken place, the extent to which changes in his
revised single negotiating text should be made in order to reflect the
progress achieved in the course of negotiations where, in the chair-
man’s opinion, such progress justified changes in the revised single
negotiating text and also to decide, even where the negotiations had
not resulted in substantial agreement, whether such progress as had
been achieved warranted changes which would be conducive to the

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ultimate attainment of general agreement. It was also understood
that, so far as issues on which negotiations had not taken place were
concerned, there should be no departure from the revised single
negotiating text unless it was of a consequential character. This
understanding was scrupulously observed in the course of the prepa-
ration of the informal composite negotiating text. There is no ques-
tion, therefore, of joint responsibility being assumed for the provi-
sions of the text by the President and the chairmen of the three
committees. The chairman of each committee bears the full respon-
sibility for those provisions of the informal composite negotiating text
which are the exclusive and special concern of his committee. This is
not an enunciation of a new doctrine of collective irresponsibility.

The Conference also agreed that the composite negotiating text
would be informal in character and would have the same status as the
informal single negotiating text and the revised single negotiating text
and would, therefore, serve purely as a procedural device and only
provide a basis for negotiation without affecting the right of any
delegation to suggest revisions in the search for a consensus. It would
be relevant to recall here the observation made in my proposals
regarding the preparation of this text that it would not have the
character and status of the text which was prepared by the Interna-
tional Law Commission and presented to the Geneva Conference of
1958 and would, therefore, not have the status of a basic proposal that
would stand unless rejected by the requisite majority.

Special attention was given, in the course of the preparation of the
informal composite negotiating text, to the need for co-ordination
between the different parts of the revised single negotiating text where
there appeared to be contradictions or unnecessary repetition.” (A/
CONF.62/WP.10/Add.1 ; ibid., p. 65.)

16. The seventh session in 1978 needed two weeks to agree on the
organization of the work of the session and on 12 April 1978 it adopted the
report of the General Committee (A/CONF.62/61) as amended. (Deci-
sions printed as A/CONF.62/62 ; UNCLOS III, Official Records, Vol. X,
p. 6.) It was agreed that this session should give priority to the identifi-
cation and resolution of the outstanding core issues and that the Confer-
ence should also discuss and resolve all other issues which remained
outstanding. Negotiating groups of limited size, but in which all delega-
tions were free to participate, were established to deal with seven hard-core
issues, which included the subjects “Definition of the outer limits of the
Continental Shelf and the question of payments and contributions with
respect to the exploitation of the continental shelf beyond 200 miles ;
Definition of the outer limits of the continental shelf and the question of
revenue sharing” and “Delimitation of maritime boundaries between
adjacent and opposite States and settlement of disputes thereon”. It was

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further agreed that any modifications or revisions of the ICNT should be
made in the following ways :

“10. Any modifications or revisions to be made in the Informal
Composite Negotiating Text should emerge from the negotiations
themselves and should not be introduced on the initiative of any single
person, whether it be the President or a Chairman of a Committee,
unless presented to the Plenary and found, from the widespread and
substantial support prevailing in Plenary, to offer a substantially
improved prospect of a consensus.

il. The revision of the Informal Composite Negotiating Text
should be the collective responsibility of the President and the Chair-
men of the main committees, acting together as a team headed by the
President. The Chairman of the Drafting Committee and the Rap-
porteur-General should be associated with the team as the former
should be fully aware of the considerations that determined any
revision and the latter should, ex officio, be kept informed of the
manner in which the Conference has proceeded at all stages.” (A/
CONF.62/62 ; ibid, p. 8.)

17. The seventh session, in the spring of 1978, and the resumed seventh
session, in the summer of 1978, did not succeed in revising the ICNT,
though a number of reports of committees and negotiating groups were
presented at plenary meetings. Apart from the fact that the plenary held
several formal meetings to discuss substantive matters in the spring, most
of the discussions are believed to have taken place either at informal
meetings of the committees or in the negotiating groups. The reports
presented at the plenary meetings indicated that it was extremely difficult
to reach agreement on outstanding issues in any committee or negotiating
group.

18. Towards the end of the eighth session, held in the spring of 1979,
letters from various regional groups were addressed to the President of the
Conference, and several reports of committees and negotiating groups
were presented to the Plenary, which held several formal meetings to deal
with them. At the close of the eighth session, on 27 April 1979, the Presi-
dent and the chairmen of the main committees, together with the Chair-
man of the Drafting Committee and the Rapporteur-General, met, in
conformity with paragraphs 10 and 11 of the decisions taken by the Con-
ference on 12 April 1978 regarding the organization of work, as quoted in
paragraph 16 above, to consider revision of the ICNT. The subject-matter
that the team was expected to deal with was the outcome of the work of the
negotiating groups on certain hard-core issues. According to the explana-
tory memorandum of the President of the Conference attached to the
ICNT/ Revision 1 :

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“ÎThe team] . . . recognized that it had to assume the responsibility
of determining what criteria to apply in deciding whether a given text
enjoyed widespread and substantial support in Plenary and, there-
fore, offered a substantially improved prospect of consensus. The
President, it was recalled, had reiterated that the very nature of the
concept of a package deal must mean that no delegation’s position on
a particular issue would be treated as irrevocable until at least all the
elements of the ‘package’ as contemplated had formed the subject of
agreement. Every delegation, therefore, had the right to reserve its
position on any particular issue until it had received satisfaction on
other issues which it considered to be of vital importance to it.

The team recognized that the discussion in Plenary had proceeded
on the basis of the reports made by the Chairmen of Committees and
Negotiating Groups and of the proposals and suggestions placed by
them before the Plenary. In those circumstances, it did not feel
empowered to consider any proposals not covered by these reports for
the purpose of determining whether they commanded sufficient sup-
port in the Plenary to justify their incorporation in any revision at this
stage. The President recalled that he had very clearly stressed in the
Plenary that all outstanding proposals and issues would receive fur-
ther consideration and that the revision contemplated would remain a
negotiating and not a negotiated, text. It was accordingly agreed that
the proper description of the status of the text could best be conveyed
by the title ‘Informal Composite Negotiating Text/Rev.1’.

The team agreed that it was most important that the President
should stress, in this explanatory memorandum, that it had been able
to address itself only to the texts placed before the Plenary by the
respective Chairmen and by the President and that, accordingly, as
the President had already recognized in the Plenary, many issues and
proposals had not yet received adequate consideration and should
form the subject of further negotiation during the resumed session.”
(A/CONF.62/WP.10/Rev.1, pp. 18 f.)

Thus the first revision of the ICNT was prepared as Informal Composite
Negotiating Text/Revision 1 (A/CONF.62/WP.10/Rev.1), on 28 April
1979. Further efforts were made at the resumed eighth session, in the
summer of 1979, when a number of reports were received by the Plenary
from the regional groups and the negotiating groups, as well as from the
committees.

19. At the ninth session, in the spring of 1980, the Conference was able
to carry negotiations to the stage where, after a formal debate in the
Plenary on some reports from various groups, the collegium (previously
called the team) found itself in a position to undertake the second revision,

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thus producing Informal Composite Negotiating Text/Revision 2 (A/
CONF.62/ WP.10/Rev.2). In the explanatory memorandum by the Presi-
dent of the Conference, it was stated :

“To avoid any misunderstanding as to the status of the second
revision which is now presented, the President would wish to empha-
size that it must be regarded as a negotiating text which provides, in
the best judgement of the collegium, a better basis of negotiation and
one that offers a substantially improved prospect of a consensus.”
(Ibid. p. 22.)

20. During the resumed ninth session, in the summer of 1980, the results
of the negotiations on outstanding issues in the main committee and in the
Plenary were discussed during the general debate, and the collegium took
note of those results and of the statements made in the course of the general
debate. The conclusions reached by the collegium were reflected in the
revision of the ICNT/Revision 2, and the collegium unanimously decided
to adopt the title “Draft Convention (Informal Text)” for this third revi-
sion (A/CONF.62/WP.10/Rev.3). It was stated in the explanatory mem-
orandum by the President that the observations made by him with regard
to the nature of the ICNT/Revision 2 would apply with equal force to this
new text. In other words, the draft convention (Informal Text) was not a
negotiated text but still remained a “negotiating text”, i.e., a basis for
negotiation which had not itself been negotiated, and therefore was not to
be represented as a set of proposals already enjoying a measure of mul-
tilateral acceptance.

Section IV. Draft Convention on the Law of the Sea

21. At the resumed tenth session, in the summer of 1981, the text of the
draft convention was revised as the draft convention on the Law of the Sea
(A/CONF.62/L.78) and the Conference recognized that the text as so
revised would no longer be an informal text. It would now be

“the official Draft Convention, subject to the following three condi-
tions :

First, the door would be kept open for the continuation of consul-
tations and negotiations on certain outstanding issues. The results of
these consultations and negotiations, if they satisfy the criterion in
A/CONF.62/62, will be incorporated in the Draft Convention by the
collegium without the need for formal amendments.

Secondly, the Drafting Committee will complete its work and its
further recommendations, approved by the Informal Plenary, will be
incorporated in the text.

Thirdly, in view of the fact that the process of consultations and

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negotiations on certain outstanding issues will continue, the time has,
therefore, not arrived for the application of Rule 33 of the Rules of
Procedure of the Conference. At this stage, delegations will not
be permitted to submit amendments. Formal amendments may
only be submitted after the termination of all negotiations.” (Jbid.,

p. xix.)

Thus even the 1981 draft convention is not yet a finalized text to be put
to the Conference at its final stage for adoption.

22. Although the document entitled “Draft Convention on the Law of
the Sea”, which started as a paper suggested by the President of UNCLOS
III, now has the status of an official document of the Conference, the draft
still requires various procedures and ample time before it can eventuate in
treaty law. It is expected that the “informally” edited draft convention on
the Law of the Sea as a whole will be put to a vote or, preferably, adopted
by consensus (or acclamation) at one of the sessions of the Conference to
be held in 1982. Even if the Conference agrees to adopt this comprehensive
text, it will still have to be signed by the plenipotentiary delegates of States.
Even after being signed by States, the Convention must still be ratified in
order to become effective. According to Article 308 of the draft conven-
tion, the Convention will enter into force 12 months after the date of
deposit of the sixtieth instrument of ratification or accession, but of course
this article itself may be changed before being finally adopted by the
Conference. Whether or not the obtaining of the specified number of
ratifications will be difficult was, of course, not a matter for the Court to
estimate. Although there is no doubt that when that number of ratifica-
tions has been obtained the Convention will be binding upon those States
which have ratified or acceded to it, even this does not necessarily mean
that the text of the Convention will then have embodied or crystallized
pre-existing or emergent rules of customary law. (Cf. Z.C.J. Reports 1969,
p. 41, para. 69.)

23. It is however possible that, before the draft of a multilateral treaty
becomes effective and binding upon the States parties in accordance with
its final clause, some of its provisions will have become customary inter-
national law through repeated practice by the States concerned. In this
connection, certain provisions of the draft convention, which have been
inherited from the provisions of the 1958 Conventions on the Law of the
Sea, may of course be regarded as already representing customary inter-
national law. In addition, what has been formulated with almost world-
wide co-operation throughout the decade may contribute to the develop-
ment of customary international law, quite apart from the entry into force
of the draft as treaty law. However, the simple fact that the draft conven-
tion was prepared on the basis of the consensus formula adopted at
UNCLOS III, and that this document was formalized at the suggestion of
the President of the Conference and was declared as being no longer an

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informal text, can hardly mean that the provisions of the draft convention
are now regarded or should be regarded as reflecting the principles and
rules of international law.

24, In UNCLOS II it was tacitly agreed that all items should be dealt
with as a “package”, and the suggestion of strict adherence to the con-
sensus method as an axiomatic procedure has been closely followed. Such
procedure and method is an experiment without precedent in the history of
international law, and thus UNCLOS III can be described as a great
laboratory or workshop of international law. The experiment started in an
age when the ocean, occupying two-thirds of the globe, which had hitherto
been considered mainly as an area for communication and the transport of
goods between nations, began to attract the interest of all nations as an
arena for the acquisition of natural resources. To the extent that the ocean
was utilized only for purposes of communication and transport, there had
been no cause to exclude interests other than one’s own. In the present day,
however, interests in the resources of the ocean, inevitably reflecting
individual national goals, have become mutually exclusive. In these
changed circumstances, what was really necessary was a new vision of the
ocean to replace the longstanding concept of the freedom of the seas which
had been valid during the age of maritime traffic. In point of fact, all the
efforts deployed in the great workshop of UNCLOS III have been directed
towards constructing an imposing edifice representing a régime of the
ocean likely to be voted into existence irrespective of what it may bode for
the future. Unable to cling to the aim of true world harmony, the delegates
have felt compelled to content themselves with cobbling together a patch-
work of ideas which are not necessarily harmonious. I would be the last
person to underestimate the difficulty of securing acceptance of an entirely
coherent vision, but as the views of some individual nations are bound to
be sacrificed in the end, I have to say that such a sacrifice would only be
worth making for the sake of such a vision.

25. As can be seen from the process whereby the ISNT, the RSNT and
the ICNT were drafted, the draft convention on the Law of the Sea started
as simply a compilation of texts separately presented by the three main
committees of UNCLOS III on their own individual responsibility. In
1975, working in complete isolation, not only from one another but also
from the majority of the member States, each chairman had to prepare the
ISNT as a first draft of the series in the few weeks granted to him. Each
chairman simply borrowed some provisions from the 1958 Conventions on
the Law of the Sea, some of which, on the basis of long-term practice, had
been considered established as customary rules without much reconsider-
ation of their merits, or picked up some completely new institutions, which
being formally or informally presented to the Sea-bed Committee or
UNCLOS UI, put forward a political compromise to settle strongly-
opposed national interests which had by that time not received any exten-

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sive discussion. Few efforts have been made to align these notions with the
longstanding rules of customary international law, and a somewhat short-
sighted political compromise is reflected in the so-called “package deal”.
This statement of mine is not meant to blame or criticize the persons
engaged in the preparation of the draft at UNCLOS III, but is made simply
to indicate the process of the preparation of the negotiating texts. Thus
while neither collaboration among the main committees nor exhaustive
studies by the delegates had presided over the completion of the first draft,
in other words the ISNT, thereafter efforts to closely examine each pro-
vision were sometimes considered as hampering the progress of the Con-
ference, again because of the “package deal” procedure and the consensus
method. The delegates, discouraged from dealing with the various pro-
posals put before them, and, despite their probably feeling some doubts
and dissatisfaction, had to co-operate for the sake of building up a new
uniform text. Thus we now have the draft convention on the Law of the
Sea. Whether the result produced by this great laboratory of international
law will prove to be really workable is something that will have to be judged
in the future. The Court was not in a position, at least while the experiment
was still going on in the laboratory, to depend on a half-finished product,
and did not have to regard a simple glance at the formulated text of the
draft convention as indicative of established or embryonic principles and
rules of international law.

26. As stated before, there was at least agreement between the two
Parties that the new (UNCLOS) trends could be applicable in the present
case only to the extent that they had become customary international law.
In this light, the above outline and summing up of the UNCLOS process
should suffice to show that the Court did not have to attach great impor-
tance to the actual provisions of the draft convention on the Law of the Sea,
at least at the stage they have reached at the beginning of 1982. Thus the
Court should have sought enlightenment from UNCLOS III not in those
provisions alone, but much rather in the progress of the discussions
underlying them. By the same token, it should have cast the net wider and
based its considerations of trends in the law of the sea over the past few
decades on an altogether broader survey. In order to understand the trends
in the law of the sea over the past few decades, in the context of the present
case, it is extremely important to realize, for one thing, that the concept of
the continental shelf has fluctuated for the past ten years or so and, for
another, that the introduction of the new concept of the exclusive eco-
nomic zone was calculated to have a great impact on the concept of the
continental shelf.

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CHAPTER II. THE TRADITIONAL CONCEPT OF THE CONTINENTAL SHELF

Section I. Early Claims to the Continental Shelf and
Scholarly Views Thereon

1. Pre-history of the claims to the continental shelf

27. To deal with the delimitation of the continental shelf in early 1982,
when the status of the 1981 draft convention on the Law of the Sea is not
yet certain and it cannot, therefore, be regarded as a sure guide, it is
essential to reflect upon how the concept of the continental shelf has
emerged and become established in international law and to plot the curve
of its development. The term “continental shelf” was not unknown even to
lawyers before the Second World War. In the late 1930s, learning that a
foreign fleet might be sent to the Eastern Bering Sea for the scientific
investigation of salmon, the fishing industry on the Pacific coast of the
United States successfully sought to have Bills introduced into Congress
for the extension of the territorial seas, with a view chiefly towards
monopolizing fishing sites. Accordingly a Bill passed by the Senate on
5 May 1938 provided that United States jurisdiction was to extend to all
the waters and submerged land adjacent to the coast of Alaska lying within
the limits of the continental shelf having a depth of water of 100 fathoms
(approximately 200 metres) (US, 8.3744, 75th Congress, 3rd Sess. (1938) ;
83 Congressional Records, IV, 4260, 6423). No action was taken on this Bill
by the House of Representatives prior to adjournment. Further Bills were
introduced in both Houses of Congress in order to extend jurisdiction, not
so much in terms of the continental shelf, but rather by reference to certain
geographical features, such as a depth of water of 100 or 200 fathoms.
Nothing came of those Bills either.

28. However, the régime of the continental shelf had never constituted a
part of international law prior to 1945. In this respect, mention should be
made of the arbitral award given by Lord Asquith of Bishopstone in 1951
in a dispute between a British oil company and the Ruler of Abu Dhabi
(International Law Reports, 1951, pp. 144 ff.). The question at issue was
whether the British company which had been granted an exclusive oil con-
cession covering the territory of Abu Dhabi should simultaneously have
been granted an exclusive oil concession covering the continental shelf. The
award rejected the contention of the British company that the concept of
the continental shelf as territory of the coastal State was an accepted fact,
particularly in 1939, when the company had been granted the concession,
and that Abu Dhabi therefore could not grant it to others. This award
clearly indicated the fallacy of considering the continental shelf as belong-
ing ipso jure to the coastal State. It was thus a fortiori impossible to regard
the continental shelf as being ipso facto subject to the jurisdiction of
the coastal State within the ambit of any positive international law.

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29. The methods for extracting oi! advanced so far in the period after
the Second World War that it became possible to build artificial installa-
tions out to sea. The possibility of exploiting resources, especially petro-
leum, contained in the continental shelf attracted the attention of the
world. A number of States made claims to their offshore submerged areas
with a view to securing the resources contained therein. The United States
proceeded by claiming the submarine areas described in the well-known
Truman Proclamation of 1945 :

“I, Harry S. Truman, President of the United States of America do
hereby proclaim the following policy of the United States of America
with respect to the natural resources of the subsoil and sea bed of the
continental shelf.

Having concern for the urgency of conserving and prudently uti-
lizing its natural resources, the Government of the United States
regards the natural resources of the subsoil and sea bed of the con-
tinental shelf beneath the high seas but contiguous to the coasts of the
United States as appertaining to the United States subject to its
jurisdiction and control...”

It was obviously the aim of the United States to prevent other States from
drawing near the United States coast for the purpose of exploiting sub-
marine mineral resources. It was at the same time indicated by the gov-
ernment authorities that, within the meaning of the Proclamation, the term
“continental shelf” applied to areas where the sea-bed lay at depths not
exceeding 100 fathoms. Many other coastal States followed this precedent,
probably because they would have much to gain and nothing to lose by
claiming the resources off their coasts. Some States asserted that the
continental shelf formed part of their national territory ; others claimed a
limited jurisdiction over the shelf for the purposes of exploitation of its
resources ; while still others claimed ownership of the resources contained
in the continental shelf. All these claimants, however, in one way or
another, asserted an exclusive right to certain limited areas of the subsoil
beneath the high seas. The areas defined as being subject to the control of
their respective coastal States were sometimes measured in terms of dis-
tance from the coast. However, the 100-fathom isobath, as employed in the
United States claim, or the 200-metre isobath became commonly under-
stood as being the limit of the continental shelf.

2. Scholarly views on the continental shelf doctrine prior to the 1958 United
Nations Conference on the Law of the Sea

30. While the concept of the continental shelf was quite new to inter-
national law in the post-war period, there were many arguments about
it among scholars until the Convention on the Continental Shelf was
adopted by the United Nations Conference on the Law of the Sea in 1958.
These arguments may have been overtaken by events, but awareness of
them enhances understanding of the basic character of the concept. Views

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on the status of submarine areas varied greatly from scholar to scholar.
Some simply took the concept of the continental shelf for granted, while
others used borrowed ideas and views. Perhaps because of their lack of
confidence in formulating a cohesive doctrine, many were content simply
to list the various views on the subject. Hence it was not easy in the
post-war period to glean from any scholar any solidly grounded views
which could properly be considered as valid support for a claim to the
continental shelf. This difficulty was aggravated by the failure of some
publicists to make sufficiently clear distinction between /ex lata and lex
ferenda.

31. As often pointed out, there were certain precedents for the exploi-
tation of submarine areas, and some scholars discussed the status of the
latter in this connection. During the last century a coal mine which
extended far out to sea was excavated off the coast of Cornwall. The
decision of Sir John Patteson, arbitrator, in 1856 was that the right to own
all mines and minerals lying under the high seas was vested in the Crown
and, to give effect to the recommendation of the arbitrator, the Cornwall
Submarine Mines Act was enacted in 1858 (21 & 22 Vic., Chap. 109,
p. 624). As another example, the use of the subsoil beneath the sea had
attracted a great deal of attention since the project of building a tunnel
between England and France was first mooted in the 1870s. No question
was raised as to the right of these two countries to build a tunnel under the
high seas. These two examples indicate that there was nothing in interna-
tional law prohibiting the utilization of the subsoil for the purposes of the
exploitation of resources or communication.

In these cases the legal status of the submarine area was never discussed
except in relation to their actual use ; that is, there was no examination of
the concept in the abstract. No claim to anything more than a tunnel or a
mine had ever been asserted in relation to submerged areas. It was well
understood that the jurisdiction of the coastal State could be extended into
the tunnel or the mine, though only so long as they might exist, but that it
would not extend to any of the submarine areas as a whole. It should be
noted that the principle of the occupation of submarine areas as terra
nullius was taken to be applicable only to a coal mine or a tunnel.

32. Oppenheim-Lauterpacht held that the subsoil of the sea could be
occupied only by the construction of a tunnel extending from the territory
of the coastal State (/nternational Law, Vol. I, 8th ed., 1955, p. 630).
The views maintained by Colombos are expressed in his statement that

“[ilt would . . . be unreasonable to withhold recognition of the right of
a littoral State to drive mines or build tunnels in the subsoil, even
when they extend considerably beyond the three-mile limit of terri-
torial waters, provided that they do not affect or endanger the surface
of the sea” (International Law of the Sea, 4th ed., 1959, p. 62).

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176 CONTINENTAL SHELF (DISS. OP. ODA)

H. A. Smith understands the principle of occupation to mean the building
of a tunnel or the digging of a coal mine (The Law of the Sea, 3rd ed., 1959,
p. 82). This view was widely held by scholars (such as Kelsen and Gidel)
who concluded that submarine areas were terra nullius. A fair inference to
be drawn from these views was that there was no principle of international
law to prevent the driving of a tunnel or a mine through submarine areas,
and that jurisdiction thereover would be vested exclusively in the exca-
vating State. Those publicists did not seem to have considered the principle
of occupation or control of submarine areas in general, and it is open to
doubt whether their description of submarine areas as terra nullius ever
really reflected the true state of affairs. In any case, explanation of the use
of submarine areas in terms of occupation of terra nullius appears both
superfluous and misleading. The doctrine of occupation in international
law had generally been invoked solely for the exercise of State jurisdiction,
quite independently of simple use of the area. The fact that submarine
areas could be utilized for transportation by means of tunnels and explored
for exploitation by means of mines should not have led to the conclusion
that the entire submarine area could be possessed by a State in terms of the
occupation of terra nullius. If the areas were indeed terra nullius, it might
have been maintained that submarine areas in general would be possessed
by any State, by virtue of contiguity or geographical identity, whenever a
tunnel or a coal mine was constructed. But, so far as we know, few scholars
considered the territoriality of submarine areas in general. Hence it can be
concluded that submarine areas were never viewed as an area, like a
landmass, that could be acquired by a State. These scholars who presup-
posed that the submarine areas were terra nullius seemed to adopt an
incorrect approach to the problem.

33. The claim to the continental shelf initiated by the United States in
1945 was different from certain of the precedents mentioned above, and
was quite unique under international law in the way that not the use of the
specific part of the submarine regions, but the exercise of exclusive juris-
diction over vast areas of the high seas, was claimed by the coastal State for
the purpose of exploiting the mineral resources in the areas beneath
them.

34. Realizing that the doctrine of the continental shelf required theo-
retical underpinning in order to enable the coastal State to reserve to itself
exclusive jurisdiction over the exploitation of submarine mineral re-
sources, some scholars maintained that the continental shelf belonged ipso
jure to the coastal State. This idea of the continental shelf as being ipso jure
subject to the jurisdiction of the coastal State had its roots in the geological
unity or geographical contiguity of the continental shelf in relation to the
coast. Those specialists who favoured this idea, however, were not always
consistent, since they had to attach some legal significance to unilateral
declaratory claims to the continental shelf.

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177 CONTINENTAL SHELF (DISS. OP. ODA)

First, according to one view, the submarine shelves were appropriated
by a unilateral proclamation. But, if effective control was required for the
acquisition of a terra nullius, the continental shelf could not have been
possessed by any State, given the then state of development of technology.
Accordingly the concept of notional occupation was introduced. A dif-
ferent view was also suggested, to the effect that, while the continental shelf
was not appropriated by an individual proclamation, customary law had
evolved from the great number of proclamations concerning the shelf. This
doctrine emphasized that, since no objection had been lodged by other
States to dispute such claims, they had been tacitly accepted, effective
control being dispensed with as a pre-requisite to effective appropriation.
Some scholars were of the opinion that the doctrine of the continental
shelf, while not yet expressive of a norm of general customary law, could be
considered as embodying a norm of general customary international law in
fieri, in statu nascendi. Without reference to customary international law, a
similar conclusion was reached by some who maintained that the compe-
tence of the coastal State to regulate the exploitation of natural resources in
the offshore submerged lands was now one of the general principles of law
recognized by civilized nations, and therefore a rule of existing interna-
tional law. These doctrines presupposed a theory of continental shelf rights
based on the contiguity or continuity of the area with the coast, which was,
in fact, obviously something new to international law. Secondly, there was
also a group of scholars who were reluctant to admit that the continental
shelf had so far been subject to the control and regulation of the coastal
State. While not denying the possibility that the continental shelf might be
susceptible to occupation, they did not believe that current attempts at
control were sufficient to meet international standards for the acquisition
of the space. All of those who relied either upon the significance of
proclamations or upon effective occupation seemed to depend, perhaps
subconsciously, on a premise that the space contained within the conti-
nental shelf must be conceived of as terra nullius in the existing interna-
tional legal order. The continental shelf was analogized to a dry landmass
which could be the object of national possession. This premise, by remov-
ing the submarine areas from the sphere of law pertaining to the high seas,
implied that there was a point in time at which the continental shelf ceased
to be terra nullius and became national territory. A number of publicists
had not the slightest doubt of the validity of their own assumption of the
analogy of submarine areas to the landmass.

35. There was, further, a different scholarly view which maintained that
the submarine areas had always been tacitly regarded as an international
realm which could never be possessed by any State. According to it, the
submarine areas, like the superjacent waters, were not terra nullius, and
there was no reason for subjecting the two domains to radically different
régimes. Theoretically, just as each State had been free to catch fish, so it
had always been free to utilize the resources contained in the subsoil under
the high seas, either by “driving out” from the coast under its jurisdiction,

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or by installations embedded in the floor of the sea. But no State could
incorporate submarine areas beneath the high seas into its national terri-
tory. It necessarily followed that any doctrine of acquisition or appropria-
tion was a radical break with the traditional development of international
law. It was thus suggested that by introducing the régime of the continental
shelf in the post-war period the attempt was being made to effect a
revolutionary change in the principle of the freedom of the high seas, which
previously had prevented any State from exercising jurisdiction over that
area.

36. I presume that one of the characteristics of the legal doctrine on the
continental shelf advocated by a number of scholars after the Second
World War was that the claim to exclusive contro! and jurisdiction of the
coastal State over the submarine areas was substituted for the demand for
use of the submarine resources. The doctrine of the continental shelf — that
is, the claim to exclusive control — was restricted by some to the simple
legalization of national exploitation of the shelf’s mineral resources. While
any doctrine which would make it impossible to utilize the natural
resources would certainly be undesirable, it should be noted that the
exploitation of submarine areas beneath the high seas had not been pro-
hibited under international law. The scholars in question simply over-
looked the fact that a regime of the continental shelf would not necessarily
be required for the actual exploitation of submarine areas. Secondly, most
scholars were not fully alert to the fact that exploitation of submarine
resources being conducted in the high seas came under the head of use of
the sea and, while failing to deal with such exploitation in connection with
the régime of the high seas, they tended to discuss simply the status of the
sea-bed or the subsoil for this exploitation. Yet if the resources beneath the
high seas had created any difficulties in international law, this would have
been simply for the reason that the mode of utilization might sometimes
hinder other uses of the seas, such as navigation or fishing.

Section II. Basic Concept of the Continental Shelf in the
1958 Convention on the Continental Shelf

1. Draft prepared by the International Law Commission

37. While the régime of the continental shelf as /ex lata had been
discussed by many scholars, primarily from the theoretical point of view,
the United Nations International Law Commission endeavoured to estab-
lish a /ex ferenda for the monopolistic exploitation by coastal States of
offshore submarine resources. Since 1950, the question of the continental
shelf had been treated by the Commission as one of the most important
parts of the régime of the high seas. The received concept underlying the
régime of the continental shelf had gone largely unchallenged in the course
of seven years’ debate by the Commission. The Commission never ques-

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tioned the advisability of endorsing it as a basis of positive /ex ferenda. On
the other hand, the views of the Commission on the outer limit of the
continental shelf fluctuated continually throughout this seven-year period,
and no firm decision could be taken on this point.

38. At its 1950 session, the International Law Commission took the
view that a coastal State could exercise control and jurisdiction over the
sea-bed and subsoil of the submarine area off its coast in order to explore
and exploit the natural resources existing there. It held that the continental
shelf was not to be considered as either res nullius or res communis, and that
the right of a coastal State was independent of the concept of occupa-
tion.

39. The fundamental principle contained in the 1951 draft did not differ
in nature from what had been discussed in 1950, and was stated as fol-
lows :

“Article 2

The continental shelf is subject to the exercise by the coastal State
of control and jurisdiction for the purpose of exploring it and exploit-
ing its natural resources.” (International Law Commission Yearbook,
1951, Vol. II, p. 141.)

Thus the exercise of control and jurisdiction for the purpose of exploring
the continental shelf and exploiting its natural resources was held to fall
within the competence of each coastal State. The Commission, however,
remained consistent in excluding the treatment of submarine areas as res
nullius, hence in defining the right of the coastal State over the continental
shelf without reference to the notion of occupation or any formal assertion
by the sovereign State. It further rejected the proposition that any number
of proclamations over the previous decade would have created new cus-
tomary law. It took the position that

“Tilt is sufficient to say that the principal of the continental shelf is
based upon general principles of law which serve the present-day
needs of the international community” (ibid, p. 142).

In the 1951 draft the continental shelf was defined as covering submarine
areas “where the depth of the superjacent waters admits of the exploitation
of natural resources of the sea-bed and subsoil”. The Commission con-
sidered that “technical developments in the near future might make it
possible to exploit resources of the sea-bed at a depth of over 200 metres”,
and, moreover, that

“the continental shelf might well include submarine areas lying at a
depth of over 200 metres but capabie of being exploited by means of

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installations erected in neighbouring areas where the depth does not
exceed this limit” (International Law Commission Yearbook, 1951,
Vol. IL p. 141).

40. In its 1953 draft, however, the International Law Commission,
mindful of the need for clear definition of the outer limit of the continental
shelf, adopted a depth of 200 metres as the sole criterion, taking the view
that “the text previously adopted does not satisfy the requirement of
certainty and... is calculated to give rise to disputes” (International Law
Commission Yearbook, 1953, p. 213). For the rest, the 1953 draft followed
the basic idea adopted in 1951, except that the right of control and juris-
diction was replaced by “sovereign rights”, and Article 2 was accordingly
framed in the following terms :

“The coastal State exercises over the continental shelf sovereign
rights for the purpose of exploring and exploiting its natural re-
sources.” ([bid., Vol. II, p. 212.)

41. Inits 1956 final draft the Commission reaffirmed this basic concept
of sovereign rights for the purpose of exploring the continental shelf and
exploiting its natural resources, and retained the last-mentioned position,
in identical terms, as Article 68 (International Law Commission Yearbook,
1956, Vol. IT, p. 264). It was understood that the rights conferred upon the
coastal State covered all rights necessary for and connected with the
exploration and exploitation of the natural resources of the continental
shelf and that such rights included jurisdiction in connection with the
prevention and punishment of violations of the law. The rights of the
coastal State were to be exclusive in the sense that, if it did not exploit the
continental shelf, it was only with its consent that anyone else might do so.
The following views expressed by the Commission in 1956 are worth
quoting in order properly to understand the fundamental concept of the
continental shelf :

“(7) The rights of the coastal State over the continental shelf do not
depend on occupation, effective or notional, or on any express pro-
clamation.

(8) The Commission does not deem it necessary to expatiate on the
question of the nature and legal basis of the sovereign rights attributed
to the coastal State. The considerations relevant to this matter cannot
be reduced to a single factor. In particular, it is not possible to base the
sovereign rights of the coastal State exclusively on recent practice, for
there is no question in the present case of giving the authority of a legal
rule to a unilateral practice resting solely upon the will of the States
concerned. However, that practice itself is considered by the Com-
mission to be supported by considerations of law and of fact. In
particular, once the seabed and the subsoil have become an object of
active interest to coastal States with a view to the exploration and
exploitation of their resources, they cannot be considered as res nul-

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lius, 1.e., capable of being appropriated by the first occupier. It is
natural that coastal States should resist any such solution. Moreover,
in most cases the effective exploitation of natural resources must
presuppose the existence of installations on the territory of the coastal
State. Neither is it possible to disregard the geographical phenomenon
whatever the term — propinquity, contiguity, geographical continuity,
appurtenance or identity — used to define the relationship between
the submarine areas in question and the adjacent non-submerged
land. All these considerations of general utility provide a sufficient
basis for the principle of the sovereign rights of the coastal State as
now formulated by the Commission.” (International Law Commission
Yearbook, 1956, Vol. IT, p. 298.)

With regard to the outer limit of the continental shelf, however, the
Commission’s draft was again revised in 1956 so as to cover not only areas
within the 200-metre isobath but also areas outside it, provided that
exploitation of the natural resources there remained feasible :

“Article 67

[T]he term ‘continental shelf’ is used as referring to the seabed and
subsoil of the submarine areas adjacent to the coast but outside the
area of the territorial sea, to a depth of 200 metres (approximately 100
fathoms) or, beyond that limit, to where the depth of the superjacent
waters admits of exploitation of the natural resources of the said
areas.” (Ibid. p. 264.)

2. The régime of the continental shelf adopted in the 1958 Convention on the
Continental Shelf

42. At the Geneva Conference on the Law of the Sea of 1958, most, but
certainly not all, States entered upon the deliberations without questioning
the global concept of the continental shelf, and any argument regarding the
fundamental status of this submerged area was soon dropped. Whether the
right to be vested in the coastal State should be sovereign or exclusive was
strenuously debated. The most important question, however, related not to
the formal description but to the substance of that right. The provision of
the draft of the International Law Commission was taken as it stood in
Article 2, paragraph 1, of the Convention on the Continental Shelf, so we
again find : ;

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

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43. However, a few new paragraphs were added to this basic concept of
the continental shelf during the deliberations of the Conference. Para-
graph 3 as it now stands was introduced at the suggestion of Cuba and was
adopted by 41-7-12 votes at the Fourth Committee ; it had, however,
already been clearly stated in the 1956 commentary on the Commission’s
draft. Article 2, paragraph 3, thus now reads as follows :

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

Article 2, paragraph 2, states :

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

This paragraph was based on an Argentine proposal already adumbrated
in the commentary on the 1956 draft and adopted by a 36-6-25 vote, and to
a certain extent on a Yugoslav suggestion, adopted by 37-5-24. It might
well be said, however, that the Yugoslav intention was not properly
reflected because its proposal had been to the effect that “if the coastal
State does not exercise the rights under paragraph I, . .. no one may claim to
its continental shelf without its express agreement’ (emphasis added).
Only the latter part of the Yugoslav proposal was incorporated by the
Drafting Committee into the text of the Convention. It appears that this
error in drafting was due to the fact that in the minds of many delegates the
concept of the right of each coastal State over the continental shelf had
become limited to the sole notion of active exploration and exploitation of
the shelf’s resources. At any rate, it is submitted that paragraph 2 should be
interpreted as meaning that anyone is prevented from exploiting the
resources contained in the continental shelf off the coast of the State
without the express consent of that State, and that any State is prevented
from claiming title to this continental shelf in terms of prescription or
occupation or for any other reason, even in the case where the coastal State
has not undertaken any exploitation of these resources.

44, The 1958 Convention on the Continental Shelf paved the way to
control of the continental shelf. There was some doubt whether this Con-
vention had simply codified existing customary rules or promulgated a
new legal norm. However, it had certainly disposed of various theoretical
controversies concerning individual claims by many States to submarine
areas off their shores.

45. With regard to the outer limit of the continental shelf, France,
Greece, Italy and the United States of America at the 1958 Conference had
hesitated to accept the provision that the limit of the continental shelf be

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measured by such an uncertain criterion as “exploitability”. They had
favoured the depth of 200 metres, but a proposal by France to this effect
(A/CONF.13/C.4/L.7) was rejected. Yugoslavia, the United Kingdom,
India, Canada and the Netherlands had proposed that it might be pref-
erable to specify a depth-line of 550 metres, as being nearer to the deepest
edge of the continental shelf and more likely to result in an agreement
which could remain unaltered for a considerable period (A/CONF.13/
C.4/L.12 as amended, L.24/Rev.1, L.29/Rev.1, L.30 as amended, L.32);
their proposals were, however, either withdrawn or rejected. On the other
hand, the proposal of the Republic of Korea, simply suggesting the “ex-
ploitability” criterion (A/CONF.13/C.4/L.11), and that of Panama, sug-
gesting inclusion of the continental slope within the definition of the
continental shelf (A/CONF.13/C.4/L.4), were both also rejected. Finally,
the original draft prepared by the International Law Commission, with an
additional clause concerning an island (which will be explained later in
para. 149), was adopted, 51-9-10. France, Germany, Italy, Japan and the
Netherlands opposed the original draft. Again, at the plenary meeting, the
French delegate tried to remove the concept of exploitability from the
original text, but in vain. Thus the width of the continental shelf was
provided for as follows :

“Article I

... the term ‘continental shelf’ is used as referring (a) to the seabed
and subsoil of the submarine areas adjacent to the coast but outside
the area of the territorial sea, to a depth of 200 metres or, beyond that
limit, to where the depth of the superjacent waters admits of the
exploitation of the natural resources of the said areas ; (b) to the
seabed and subsoil of similar submarine areas adjacent to the coasts of
islands.”

46. It must be said that the reference to the “exploitability” concept had
been so framed as to express the very opposite of the Conference’s inten-
tion, which had clearly been to sanction extension of the limit of the (legal)
shelf beyond the 200-metre isobath to where the depth of the superjacent
waters ceased to admit of the exploitation of the natural resources. How-
ever, even on that reading, much ambiguity remained over the interpre-
tation of the criterion of exploitability. There was insufficient realization
of the consequences of the fact that each coastal State was free to grant to
any foreign country or foreign nationals the right to explore its continental
shelf or to exploit the natural resources therein contained. Hence coastal
States without sufficiently advanced technology could always encourage
foreign investment or technical assistance with a view to exploration and
exploitation of the resources contained within the continental shelf, their
claim to which, beyond the 200-metre isobath, would thus be ipso facto
substantiated. Thus understood, the concept of exploitability had to be
continuously reinterpreted in terms of the most advanced standards of

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technology in the world. The logical outcome of this is, finally, that the
exploitation of submarine resources beyond even the 200-metre depth
must always be reserved to “the coastal State”, which is empowered to
claim any area where the depth of the superjacent waters admits of
exploitation. Implicitly, therefore, all the submarine areas of the world
were divided among the coastal States by this 1958 Convention on the
Continental Shelf. Solely the problem of delimitation remained. It is
unlikely that such an interpretation was what the delegates at the Con-
ference actually thought they were approving. Generally speaking, most of
them seem to have been under an erroneous impression that thanks to this
exploitability test, exploration and exploitation beyond the 200-metre
isobath would only gradually become permissible in parallal with the
progress of marine technologies.

Section III, Development of Ideas concerning
Delimitation of the Continental Shelf

1. Draft prepared by the International Law Commission

47. In order to understand the proper method for delimitation of the
continental shelf in the case of adjacent or opposite States, as provided for
in the Convention on the Continental Shelf, we have to return to the 1945
Truman Proclamation, which stated :

“In cases where the continental shelf extends to the shores of
another State, or is shared with an adjacent State, the boundary shall
be determined by the United States and the State concerned in
accordance with equitable principles.”

“Equitable principles” in relation to delimitation of the continental shelf
of opposite or adjacent States were mentioned in several of the unilateral
declarations subsequently made by States.

48. At its second session, in 1950, the International Law Commission
agreed that boundaries should be established where two or more neigh-
bouring States were interested in the same continental shelf. The draft
prepared in 1951 contained the following provision :

“Article 7

Two or more States to whose territories the same continental shelf is
contiguous should establish boundaries in the area of the continental
shelf by agreement. Failing agreement, the parties are under the
obligation to have the boundaries fixed by arbitration.” (International
Law Commission Yearbook, 1951, Vol. IL p. 143.)

It was also proposed that, if agreement were not reached and a prompt
solution was needed, the interested States should be under an obligation to

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submit to arbitration ex aequo et bono. The term “arbitration” was used in
the widest sense and included possible recourse to the International Court
of Justice. Meeting objections raised by some governments, Professor
J. P. A. François, Special Rapporteur on this subject in the International
Law Commission, was inclined to replace arbitration ex aequo et bono
by the procedure of conciliation, and thus suggested the following provi-
sion :
“Article 7

Two or more States to whose territories the same continental shelf
is contiguous should establish boundaries in the area of the conti-
nental shelf by agreement. Failing agreement, the parties are under
the obligation to submit the dispute to conciliation procedure.”
(A/CN.4/60, p. 129.)

49. The Committee of Experts on Certain Technical Questions con-
cerning the Territorial Sea met in April 1953 in response to the request by
the Special Rapporteur. The question put by the Special Rapporteur was as
follows :

“How should the (lateral) boundary line be drawn through the
adjoining territorial sea of two adjacent States? Should this be
done

A. By continuing the land frontier ?

B. By a perpendicular line on the coast at the intersection of the land
frontier and the coastline ?

C. By a line drawn vertically on the general direction of the coast-
line ?

D. By a median line ? If so, how should this line be drawn ? To what

extent should islands, shallow waters and navigation channels be

accounted for ?” (A/CN.4/61/Add.1, English Annex, p. 6.)

The reply to this question by the Committee of Experts was as follows :

“1. After thoroughly discussing different methods the Committee
decided that the (lateral) boundary through the territorial sea — if not
already fixed otherwise — should be drawn according to the principle
of equidistance from the respective coastlines.

2. In a number of cases this may not lead to an equitable solution,
which should be then arrived at by negotiation.” (Jbid., pp. 6 f.)

In this connection the Committee of Experts made the following obser-
vations :

“The Committee considered it important to find a formula for
drawing the international boundaries in the territorial waters of

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States, which could also be used for the delimitation of the respective
continental shelves of two States bordering the same continental
shelf.” (Ibid. p. 7.)

In parentheses, the narrative must here be interrupted in order to point out
that the Court, in the present Judgment (see para. 119) seems to have
overlooked the conclusions of this Committee by simply stressing the
questions which that body had had put to it by the Special Rapporteur of
the International Law Commission.

50. In 1953, the International Law Commission, apparently on the basis
of the recommendations of the Committee of Experts, proposed the for-
mulation of a general rule based on the principle of equidistance, recog-
nizing that, while that principle was to provide the general rule, it would be
subject to modification in cases where another boundary line was justified
by special circumstances. The text suggested by the Commission in 1953
for the case of adjacent States was as follows :

“Article 7

1. [The case of opposite States]

2. Where the same continental shelf is contiguous to the territories
of two adjacent States, the boundary of the continental shelf apper-
taining to such States is, in the absence of agreement between those
States or unless another boundary line is justified by special circum-
stances, determined by application of the principle of equidistance
from the base lines from which the width of the territorial sea of each
of the two countries is measured.” (International Law Commission
Yearbook, 1953, Vol. IL p. 213.)

The commentary by the Commission on this provision reads as fol-
lows :

“(While . . . the rule of equidistance is the general rule, it is subject
to modification in cases in which another boundary line is justified by
special circumstances. As in the case of the boundaries of coastal
waters, provision must be made for departures necessitated by any
exceptional configuration of the coast as well as the presence of
islands or of navigable channels. To that extent the rule adopted
partakes of some elasticity.” ([bid., p. 216.)

51. The International Law Commission further revised the text in 1956,
as follows :

“Article 72

1. [The case of opposite States]

2. Where the same continental shelf is adjacent to the territories of
two adjacent States, the boundary of the continental shelf shall be
determined by agreement between them. In the absence of agreement,

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and unless another boundary line is justified by special circumstances,
the boundary shall be determined by application of the principle of
equidistance from the baselines from which the breadth of the terri-
torial sea of each of the two countries is measured.” (International
Law Commission Yearbook, 1956, Vol. II, p. 264.)

The commentary attached to the provision stated :

“As in the case of the boundaries of the territorial sea, provision
must be made for departures necessitated by any exceptional con-
figuration of the coast, as well as the presence of islands or of navi-
gable channels. This case may arise fairly often, so that the rule adop-
ted is fairly elastic.” (Ibid., p. 300.)

The International Law Commission also proposed, in Article 73 of the
draft, that any dispute arising out of the interpretation or application of the
régime of the continental shelf should, in principle, be submitted to the
International Court of Justice.

2. Article 6 of the Convention on the Continental Shelf

52. At the Geneva Conference in 1958, Venezuela could not accept the
idea that, if there were no agreement, the boundary line should, as a general
rule, be the equidistance line, because the situations which existed in
different parts of the world were too various to justify the adoption of any
such general rule. Accordingly, Venezuela suggested that “the boundary of
the continental shelf . . . shall be determined by agreement between them
or by other means recognized in international law” (A/CONF.13/C.4/
L.42). For different reasons, Yugoslavia proposed deletion of the words
“and unless another boundary line is justified by special circumstances”
from the 1956 draft (A/CONF.13/C.4/L.16) because, according to it, that
criterion was vague and arbitrary and likely to give rise to misunderstand-
ing and disagreement. The Yugoslav delegate asked whether, and how,
such special circumstances were enumerated in international law, and who
should be charged with interpreting their application. The proposals of
both Venezuela and Yugoslavia were rejected by the Fourth Committee.
The United Kingdom proposed the following provision :

“In the case of adjacent States, the boundary of the submarine
areas .. . shall, in the absence of agreement on any other boundary, be
determined by the application of the principles of equidistance from
the nearest points of the baselines from which the breadth of the
territorial sea of each of the two States is measured.” (A/CONF.13/
C.4/L.28.)

According to the British delegation —

“T T]he median line would always provide the basis for delimitation.
If both the States involved were satisfied with the boundary provided
by the median line, no further negotiation would be necessary ; if a

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CONTINENTAL SHELF (DISS. OP. ODA)

divergence from the median line appeared to be indicated by special
circumstances, another boundary could be established by negotiation,
but the median line would still serve as the starting point.” (UNCLOS
I, Official Records, Vol. VI, p. 92.)

After some queries had been raised by France and the Netherlands as to
whether such agreements would be limited to cases where there were
special circumstances, the United Kingdom proposal was withdrawn in
favour of the Netherlands proposal, in which the United Kingdom joined
as co-sponsor (A/CONF.13/C.4/L.23). This joint proposal was in fact
substantially identical with the relevant provision of the 1956 draft of the
International Law Commission and was finally adopted by the Fourth
Committee by 29-16-9 votes. Thus Article 6 of the Continental Shelf
Convention came into being.

“Article 6

1. Where the same continental shelf is adjacent to the territories of
two or more States whose coasts are opposite to each other, the
boundary of the continental shelf appertaining to such States shall be
determined by agreement between them. In the absence of agreement,
and unless another boundary line is justified by special circumstances,
the boundary is the median line, every point of which is equidistant
from the nearest points of the baselines from which the breadth of the
territorial sea of each State is measured.

2. Where the same continental shelf is adjacent to the territories of
two adjacent States, the boundary of the continental shelf shall be
determined by agreement between them. In the absence of agree-
ment, and unless another boundary line is justified by special cir-
cumstances, the boundary shall be determined by application
of the principle of equidistance from the nearest points of the base-
lines from which the breadth of the territorial sea of each State is
measured...”

53. Some suggestions were made during the 1958 Conference as to what
“special circumstances” would mean in this context. The United Kingdom
explained that —

174

“Among the special circumstances which might exist there was, for
example, the presence of a small or large island in the area to be
apportioned ; he suggested that, for the purposes of drawing a boun-
dary, islands should be treated on their merits, very small islands or
sand cays on a continuous continental shelf and outside the belts of
territorial sea being neglected as base points for measurement and
having only their own appropriate territorial sea. Other types of
special circumstances were the possession by one of the two States
concerned of special mineral exploitation rights or fishery rights, or
the presence of a navigable channel ; in all such cases, a deviation
189 CONTINENTAL SHELF (DISS. OP. ODA)

from the median line would be justified, but the median line would
still provide the best starting point for negotiations.” (UNCLOS I,
Official Records, Vol. VI, p. 93.)

Although restricted to the case of opposite States, there was also a proposal
by Italy, which read as follows :

“Where in the proximity of coasts which are opposite to each other
there are islands belonging to the said continuous continental shelf, in
the absence of agreement, the boundary is the median line every point
of which is equidistant from the low-water line along the coast of the
said States, unless some other method of drawing the said median
line is justified by special circumstances.” (A/CONF.13/C.4/L.25/
Rev. 1.)

This Italian proposal was rejected by 3-31-18 votes at the Fourth Com-
mittee. No other argument is to be found in the records of the Conference
on what the “special circumstances” could be which might justify a line
other than the equidistance line.

54. With regard to the compulsory settlement by the International
Court of Justice of any dispute concerning the continental shelf, the
Netherlands suggested that the following clause be added :

“In the case of judicial proceedings relating to the application of
Article 72, the [International] Court [of Justice] shall have power to
decide ex aequo et bono whether a boundary line other than that
defined in that article is justified by special circumstances.” (A/
CONF.13/C.4/L.62.)

This provision was adopted by the Fourth Committee following a roll-call
vote of 33-15-14. Both Tunisia and Libya abstained from voting. At the
plenary meeting, this provision was put to a vote only after the Optional
Protocol of Signature concerning the Compulsory Settlement of Disputes
had been adopted and, though obtaining 38-20-7 votes, it was rejected as it
had failed to achieve the required majority of two-thirds of the Conference.
Thus, contrary to the original intention of the International Law Com-
mission, the settlement of disputes concerning the delimitation of the
continental shelf did not become subject to compulsory settlement, either
by the International Court of Justice or by any other means, under the
Convention on the Continental Shelf, in that compulsory settlement was
provided for only in a seperate instrument : the Optional Protocol. In fact,
though the Convention on the Continental Shelf came into force on
10 June 1964, the Optional Protocol had not yet become effective.

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55. Thus the Convention on the Continental Shelf suggests the deter-
mination of the boundary of the continental shelf between opposite or
adjacent States by agreement, without providing for any compulsory set-
tlement of disputes. In so doing, it confers on a principle of general law,
concerning the settlement of disputes, priority over any principles or rules
that may be applicable to the particular subject-matter, without saying
what those may be. Thus there is no compelling principle of delimitation
which must be respected by the terms of such agreement as may be
reached. Hence the Convention refrains from mentioning any specific
principle or rule until it comes to the event of failure to agree. But this, in
my view, does not mean that the Conference intended deliberately to
belittle the importance of such principles or rules during the process of
reaching agreement. On the contrary, considering that it must have had
some doctrinal basis for the second sentence of each paragraph of Arti-
cle 6, I suggest that the Conference meant to provide guidance both before
as well as after the ascertainment of any failure to agree (both being phases
in which there is an “absence of agreement”). The implicit intention of
Article 6 was therefore, I believe, most probably to the following effect :
whether in the case of agreement or impartial third-party determination,
the principles and rules of international law to be applied should be that,
unless another boundary line is justified by special circumstances, the
boundary in the case of adjacent States should be determined by appli-
cation of the equidistance principle. In other words, the Convention may
be interpreted to mean that it suggested the “equidistance/special-circum-
stances” method as a normal basis of agreement as well as of third-party
determination. Certainly some difficulties still remain in determining
whether another boundary line is justified by special circumstances or not,
and this too should have been a matter for negotiation between the parties
or for decision by a third party. This applies with particular force if there
does not exist any established rule as to what is meant by “special cir-
cumstances’. .

Section IV. Significance of the 1969 Judgment of the Court

1. The continental shelf as a rule of customary international law

56. The argument as to whether the concept of the continental shelf was
valid only as between States parties to the 1958 Convention on the Con-
tinental Shelf, which became effective on 10 June 1964, or had been gen-
erally accepted as customary international law, was ended by the Judg-
ment of the Court in 1969, when the Court stated that :

“19... [T]he rights of the coastal State in respect of the area of
continental sheif that constitutes a natural prolongation of its land
territory into and under the °° exist ipso facto and ab initio, by virtue
of its sovereignty over the land, and as an extension of it in an exercise

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of sovereign rights for the purpose of exploring the seabed and
exploiting its natural resources.” (C.J. Reports 1969, p. 22.)

The concept of the continental shelf was thus given a firm place in the
framework of customary international law. However, it is extremely
important to note that the substance or content of the rights enjoyed by the
coastal State were not newly fashioned by the 1969 Judgment. The Court
qualified the rights of the coastal States, in the same way as provided in the
Convention, stating as follows :

“19... .In short, there is here an inherent right. In order to exercise
it, no special legal process has to be gone through, nor have any special
legal acts to be performed. Its existence can be declared . . . but does
not need to be constituted. Furthermore, the right does not depend on
its being exercised. To echo the language of the Geneva Convention, it
is ‘exclusive’ in the sense that if the coastal State does not choose to
explore or exploit the areas of shelf appertaining to it, that is its own
affair, but no one else may do so without its express consent.”
(Ibid.)

57. The phrase “ipso facto and ab initio” should not be interpreted as
meaning anything other than what is expressed in the 1958 Convention. In
spite of this phrase, such a right of the coastal State, not being effective
retroactively, did not exist “ipso facto and ab initio” prior to the time when
the régime of the continental shelf found itself in the realm of customary
international law. The Court did not give any additional interpretation to
the concept of the continental shelf, but simply declared the right defined
by the 1958 Convention to be one established under customary interna-
tional law without necessarily depending upon the specific provisions of
that Convention. The concepts of “ipso facto and ab initio” were employed
by the Court in 1969 simply to strengthen the régime of the continental
shelf, which had not yet achieved a firm status in international law. The
Court observed :

“100... . This régime furnishes an example of a legal theory derived
from a particular source that has secured a general following. As the
Court has recalled in the first part of its Judgment, it was the Truman
Proclamation of 28 September 1945 which was at the origin of the
theory, whose special features reflect that origin. It would therefore
not be in harmony with this history to over-systematize a pragmatic
construct the developments of which have occurred within a relatively
short space of time.” (Ibid. p. 53.)

The Court stated, as quoted above, the concept that “the continental shelf
... constitutes a natural prolongation of its land territory into and under
the sea” and repeated that the “shelf area is the natural prolongation [of the
land domain] into and under the sea” (para. 39). It also talked of “the more
fundamental concept of the continental shelf as being the natural prolon-

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gation of the land domain” (para. 40), and of “the natural prolongation of
continuation of the land territory or domain, or land sovereignty of the
coastal State, into and under the high seas via the bed . . .” (para. 43). In the
context of the 1969 Judgment the outer limit of the continental shelf was
not at issue, the North Sea being a shallow sea with the exception of the
(irrelevant) Norwegian Trough, and thus the area beyond the 200-metre
depth of water was not dealt with at that time. Just as the 1958 Convention
on the Continental Shelf did not reveal any precise idea as to the outer limit
of the continental shelf, so the 1969 Judgment did not attempt to define the
outer limit, or the full expanse of the continental shelf, by use of the
concept of “natural prolongation”. No, that concept was used simply
to justify the appurtenance to the coastal State of the continental shelf
geographically adjacent to it.

58. In this connection I would further point out that the fact that the
continental shelf was given a firm place in the framework of customary
international law did not necessarily mean that the actual provisions of the
Convention on the Continental Shelf reflected customary international
law. In its 1969 Judgment, the Court, partly for the reason that reservation
may not be allowed for Articles 1-3 of the Convention, held the view that —

“63. ...[T]hese three articles [Articles 1-3] [are] the ones which, it is
clear, were then regarded as reflecting, or as crystallizing, received or
at least emergent rules of customary international law relevant to the
continental shelf, amongst them the question of the seaward extent of
the shelf ; the juridical character of the coastal State’s entitlement ;
the nature of the rights exercisable ; the kind of natural resources to
which these relate ; and the preservation intact of the legal status as
high seas of the waters over the shelf, and the legal status of the
superjacent air-space.” (.C./. Reports 1969, p. 39.)

I submit that this statement went too far in saying that “received or at least
emergent rules of customary international law” had appeared not only
with regard to the juridical character of the coastal State’s entitlement and
the nature of the rights exercisable, but also with regard to some other
aspects. I shall have occasion below to refer to the problem regarding the
kind of natural resources to which these rights relate.

2. Meaning of Article 6 of the Convention on the Continental Shelf

59. The Court stated in its 1969 Judgment that Article 6 of the Con-
vention on the Continental Shelf, which provides for the application of the
principle of equidistance in the case of another boundary not being jus-
tified by special circumstances, did not embody or crystallize any pre-
existing emergent rule of customary law and could not be binding upon the
States which were not parties to the Convention (ibid, p. 41, para. 69).
The Court stated as follows :

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CONTINENTAL SHELF (DISS. OP. ODA)

“55....[I]tis clear that at no time was the notion of equidistance as
an inherent necessity of continental shelf doctrine entertained. Quite
a different outlook was indeed manifested from the start in current
legal thinking.” U.C.J. Reports 1969, p. 35.)

It was further of the view that —

“58.... But in fact, whereas a median line divides equally between
the two opposite countries areas that can be regarded as being the
natural prolongation of the territory of each of them, a lateral equi-
distance line often leaves to one of the States concerned areas that are
a natural prolongation of the territory of the other.” (Jbid, p. 37.)

Minimizing the meaning of the principle of equidistance as provided for in
Article 6 of the Convention, the Court seemed to find significance in the
requirement of agreement between the parties and in equitable principles,
both of which are also provided for in Article 6 of the Convention. The
Court stated :

179

“55.... It was, and it really remained to the end, governed by two
beliefs ; — namely, first, that no one single method of delimitation was
likely to prove satisfactory in all circumstances, and that delimitation
should, therefore, be carried out by agreement (or by reference to
arbitration) ; and secondly, that it should be effected on equitable
principles. It was in pursuance of the first of these beliefs that in the
draft that emerged as Article 6 of the Geneva Convention, the [In-
ternational Law] Commission gave priority to delimitation by agree-
ment, — and in pursuance of the second that it introduced the excep-
tion in favour of ‘special circumstances’. Yet the record shows that,
even with these mitigations, doubts persisted, particularly as to
whether the equidistance principle would in all cases prove equi-
table.” (Ibid, pp. 35 f.)

“72....In the first place, Article 6 is so framed as to put second the
obligation to make use of the equidistance method, causing it to come
after a primary obligation to effect delimitation by agreement. Such a
primary obligation constitutes an unusual preface to what is claimed
to be a potential general rule of law. Without attempting to enter into,
still less pronounce upon any question of jus cogens, it is well under-
stood that, in practice, rules of international law can, by agreement, be
derogated from in particular cases, or as between particular parties, —
but this is not normally the subject of any express provision, as it is in
Article 6 of the Geneva Convention. Secondly the part played by the
notion of special circumstances relative to the principle of equidis-
tance as embodied in Article.6, and the very considerable, still unre-
solved controversies as to the exact meaning and scope of this notion,
must raise further doubts as to the potentially norm-creating charac-
ter of the rule.” (bid, p. 42.)
194 CONTINENTAL SHELF (DISS. OP. ODA)

“85... . It emerges from the history of the development of the legal
régime of the continental shelf, . . . that the essential reason why the
equidistance method is not to be regarded as a rule of law is that, if it
were to be compulsorily applied in all situations, this would not be
consonant with certain basic legal notions which, ... have from the
beginning reflected the opinio juris in the matter of delimitation ;
those principles being that delimitation must be the object of agree-
ment between the States concerned, and that such agreement must be
arrived at in accordance with equitable principles.” (C.J. Reports
1969, p. 46.)

60. According to my understanding, the ostensible solution of suggest-
ing that, since there is no obligatory rule applicable in all cases, the
delimitation is to be effected by agreement, is no solution at all. As I have
pointed out above (para. 55) in my analysis of Article 6 of the Convention
on the Continental Shelf, the rule calling for delimitation by agreement
remains simply a rule concerning procedure and cannot constitute a prin-
ciple or rule of delimitation. Neither is there anything specific to delimi-
tation in the requirement to reach such agreement in accordance with
equitable principles, while the declaration that use of the equidistance
method must be denied the status of a rule of law on account of some a
priori incompatibility with this requirement is a dictum that could only be
justified if it had been proved that the line reflecting equitable principles
could not be, or could only by coincidence be, an equidistance line. Suffice
it to say that a rule may be a rule, even a paramount rule, and yet not have
to be “compulsorily applied in all situations”.

61. The Court in 1969 found that the equidistance principle could not
be a rule of law, yet it could not suggest any alternative. It stated :

“83. ... [A]s between States faced with an issue concerning the
lateral delimitation of adjacent continental shelves, there are still rules
and principles of law to be applied ; and in the present case it is not the
fact either that rules are lacking, or that the situation is one for the
unfettered appreciation of the Parties. Equally, it is not the case that if
the equidistance principle is not a rule of law, there has to be as an
alternative some other single equivalent rule.” (Jbid., p. 46.)

It held in the operative paragraph of the Judgment that there was “no other
single method of delimitation, the use of which is in all circumstances
obligatory” (para. 101). In place of suggesting a method, it provided a
definition whereby the appurtenance of a given sea-bed area to a particular
State could be ascertained or recognized : the area in question had to be the
“natural prolongation” of that State’s land territory. Whatever method
could be devised for applying that definition might thus be an aid to
delimitation, but it could hardly be described as a method of delimitation.
This idea of natural prolongation, which was to play a role in the de-
velopment of the legal régime of the continental shelf, was embodied by
the Court in the following requirement :

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“85 (c).. . [T]he continental shelf of any State must be the natural
prolongation of its land territory and must not encroach upon what is
the natural prolongation of the territory of another State.” (CJ.
Reports 1969, p. 47.)

In the operative paragraph of the Judgment the Court further stated :

“101... .[D]elimitation is to be effected . . . in such a way as to leave
as much as possible to each Party all those parts of the continental
shelf that constitute a natural prolongation of its land territory into
and under the sea, without encroachment on the natural prolongation
of the land territory of the other.” (bid. p. 53.)

I find, however, that the Court in 1969 did not make clear what it meant by
“natural prolongation”, despite the enumeration of factors in para-
graph 101 of the Judgment. One senses that, once this concept had served
the purpose of casting doubt on the proximity test (which might have
pointed to the use of the equidistance method), the Court felt reluctant to
be more explicit.

62. One may reasonably wonder whether the equidistance method
would have been so decisively rejected in 1969 had it not been for the
peculiar circumstances of the case under consideration. After all, in several
places the Court then acknowledged that there were some advantages in
the equidistance method, for instance when it said :

“22. ...It has never been doubted that the equidistance method of
delimitation is a very convenient one, the use of which is indicated in a
considerable number of cases. It constitutes a method capable of
being employed in almost all circumstances, however singular the
results might sometimes be, and has the virtue that if necessary... any
cartographer can de facto trace such a boundary on the appropriate
maps and charts, and those traced by competent cartographers will
for all practical purposes agree.

23. In short, it would probably be true to say that no other method
of delimitation has the same combination of practical convenience
and certainty of application.” (bid, p. 23.)

On the other hand, the Court suggested that certain inequities might result
from the application of the equidistance method :

“89. It must next be observed that, in certain geographical circum-
stances which are quite frequently met with, the equidistance method,
despite its known advantages, leads unquestionably to inequity, in the
following sense :

(a) The slightest irregularity in a coastline is automatically magnified
by the equidistance line as regards the consequences for the
delimitation of the continental shelf. Thus it has been seen in the
case of concave or convex coastlines that if the equidistance
method is employed, then the greater the irregularity and the

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further from the coastline the area to be delimited, the more
unreasonable are the results produced. So great an exaggeration of
the consequences of a natural geographical feature must be reme-
died or compensated for as far as possible, being of itself creative
of inequity.” U.CJ. Reports 1969, p. 49.)

63. Even the Federal Republic of Germany, which was opposed to the
application of Article 6 of the Convention as embodying customary rules
of international law, was not necessarily against the “equidistance/special
circumstances” method. At the time, I argued on behalf of that Party as
follows :

“The use of a median line is a method of demarcation which, if used
in proper geographical context, and if no unsound subsequent con-
clusions are drawn from its existence, can lead to commonsense
results and just and equitable solutions.” (1 C.J. Pleadings, North Sea
Continental Shelf, Vol. II, p. 54.)

I then referred to:

“Article 6, paragraph (2), of the Geneva Convention on the Con-
tinental Shelf which, even though not binding on the Federal Repub-
lic of Germany as treaty law does represent a facet of international
law by virtue of the high sentiment which it embodies.” (Ibid,
p- 62.)

It has already been pointed out that, even in 1953, the Committee of
Experts on certain technical matters regarding the territorial sea held the
view that the principle of equidistance might not lead, in certain cases, to
an equitable solution even for the delimitation of the territorial sea, and the
necessity for departure from the general rule of equidistance had repeat-
edly been stressed since the report of the International Law Commission in
1953. In 1969, submitting that the formalistic application of equidistance
lines could quite easily lead to an odd result, I expressed my view on behalf
of the Federal Republic of Germany as follows :

“The use of this method for apportioning the continental shelf was
mentioned as a mere possibility, and could not even remotely imply a
mandate for the use of this method in all situations. The fact that the
equidistance method was designed primarily to delimit territorial
water boundaries is all the more important when we consider that in
such a case relatively short distances from the coastal front are
involved, and the extreme, and even sometimes bizarre, results
reached by strictly applying the equidistance method to apportion the
continental shelf at greater distances from the coastline cannot come
into play.” (Jbid., p. 57.)

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64. I certainly share the view of the Court when it stated :

“24. ...The plea that, however this may be, the results can never be
inequitable, because the equidistance principle is by definition an
equitable principle of delimitation, involves a postulate that clearly
begs the whole question at issue.” (C.J. Reports 1969, p. 24.)

Yet it is not proper to say that because there are some exceptions there
should not be any rule, unless the exceptions are so numerous as to negate
the utility or existence of the rule. The problem was that in certain cases the
application of the equidistance method might bring about some effect of
distortion contrary to the notion of equity. Thus the Convention on the
Continental Shelf suggested the concept of special circumstances, al-
though what was meant by this was not clearly indicated. The Federal
Republic of Germany suggested the notion of the coastal front or fagade,
by the application of which distortion due to application of the equidis-
tance method could have been avoided. The intrinsic merit of an equi-
distance line was not as such rejected in the 1969 Judgment. However, the
Court then seems to have fallen short of a proper appreciation of the
equidistance method and, in particular to have ignored the full potential of
the formula contained in Article 6 of the Convention. In pointing this out, I
wish to make it clear that I am concerned solely with the understanding of
the Convention, and not with the status of its provisions in 1969.

CHAPTER III. SEDENTARY FISHERIES AND HIsToRIC RIGHTS

65. In its Submissions in the Memorial, Tunisia stated as follows :

“2. The delimitation must not, at any point, encroach upon the
area within which Tunisia possesses well-established historic rights,
which is defined laterally on the side towards Libya at line ZV 45°,
and in the direction of the open sea at the 50-metre isobath.”

Libya, on the other hand, stated in its submission in the Counter-Me-
morial :

“4. The ‘fishing rights’ claimed by Tunisia as ‘historic rights’, even
if and where ascertained, are in any event irrelevant to shelf delimi-
tation in the present case.”

As the Judgment properly states, the historic rights remain to be con-
sidered in themselves (para. 104), and whether these historic rights claimed
by Tunisia should be upheld irrespective of the delimitation of the
continental shelf is not a point with which the Court has to deal in the
present case. However, also as properly indicated in the Judgment (para.
103), Tunisia has argued that the longstanding practice of sedentary
fisheries serves to demonstrate that the areas in question belong to the

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Tunisian landmass as its extension under the sea. Tunisia further argued in
the oral proceedings that there is a striking coincidence between the status
of “... Tunisia’s sedentary fisheries and the way they fit into the theory of
the continental shelf [CR 81/9, p. 47]” and claims that this should have an
impact on the delimitation of the continental shelf. Tunisia had also
attempted to prove that

“The delimitation of the continental shelf must logically take
account of the objective situation created from time immemorial by
Tunisia’s historic rights in the Gulf of Gabes, which ... constitutes
one of the oldest and most natural manifestations of natural prolon-
gation [CR 81/13, p. 31].

In view of these arguments put forward by Tunisia, I feel that I have to
expatiate somewhat on the doctrine concerning sedentary fisheries in
relation to the claim to the continental shelf.

Section I. Past Practice and Doctrines

1. Exploitation of sedentary species

66. In some regions of the world, such as the offshore areas of Tunisia,
Sri Lanka and Australia, the exploitation of resources attached to the
sea-bed, such as pearl shell, sponge, béche-de-mer and oysters, has been
conducted for many years in areas more than three miles from the coast.
No complaint has ever been reported that such sedentary fishing in itself
has contravened any articulated rule of international law. Mostly these
activities have been carried on by inhabitants of the coast, and the coastal
authorities have often exercised certain controls over such activities, but
this fact is of little significance, since these controls were exercised over
their own nationals. Only where coastal authorities attempt to appropriate
these fisheries does a real issue arise — and some such attempts have been
made.

67. The pearl fisheries on the banks of Ceylon, extending to a distance
of 6 to 21 miles from the coast, were subject to the 1911 Colonial Act of
Great Britain, which authorized the seizure and condemnation of any boat
found within the limits of the pearl banks, or hovering about them. These
pearl fisheries, however, had been regulated since time immemorial by the
successive rulers of the island, and this practice had met with the acquies-
cence of other nations. Vattel’s statement “Qui doutera que les pécheries
de perles de Bahrein et de Ceylan ne puissent légitimement tomber en
propriété ?” (Le droit des gens ou principes de la loi naturelle, 1758, Car-
negie’s ed., p. 247) has been quoted with approval by many scholars. While
maintaining the freedom of the seas, Vattel recognized a special interest of
the coastal State regarding the area around the coast. He attempted to
assign coastal fishing areas to the exclusive control of the coastal State, but
he did not differentiate between regular and sedentary fishing. It should be
noted that Vattel’s remarks may serve as justification for the institution of

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jurisdictional areas, but his concern was nor particularly sedentary fishing
under the high seas. Furthermore, he was not interested in the bed of the high
seas. In Vattel’s day, no consistent doctrine of the extent of the high seas
had found wide acceptance, and no breadth of the territorial seas had
definitely been fixed. While recognizing that waters adjacent to the coast
and stretching for a commonly-agreed-on distance should be considered as
part of the national territory, he did not attempt to justify the claim to pearl
fisheries on the basis of the special character of sedentary fishing itself in
terms of the occupation of the sea-bed.

68. In 1871, Sir Travers Twiss responded to an enquiry by the British
Government about dues levied by the Bey of Tunis upon the British
subjects engaged in fishing sponge and other marine products off the coast
of Tunis :

“There is no objection on principle to the Bey of Tunis asserting an
exclusive right to the fructus of the banks off the Coast of Tunis to
which Sponges and Polypi attach themselves, although the banks in
question are at a greater distance than three miles from the Coast-line,
provided the Bey can shew a prescriptive enjoyment of such fruc-
tus.” (Smith, Great Britain and the Law of Nations, Vol. IX, 1935,
p. 122.)

At the time Twiss wrote, the concept of a three-mile territorial belt was
gaining general approval. Despite this, Twiss did not believe that sedentary
fisheries should be treated in the same way as the sea-bed. He considered
sedentary fisheries beyond three miles to form a problem distinct from that
of occupation of the sea-bed.

69. The practice of control by Ceylon and Tunis, as well as its justifi-
cation as advanced by Vattel and Twiss, related solely to the right of the
coastal State vis-à-vis certain specific marine products, and this right had
been recognized even before the modern concepts of the high seas and the
territorial seas had evolved. This point cannot be too strongly stressed.
From these special circumstances scholars gratuitously derived the idea of
possession of the sea-bed. Discussing the occupation of the sea-bed by
sedentary fisheries, Sir Cecil Hurst, when, in 1923-1924, he wrote his
influential article “Whose Is the Bed of the Sea ?” (British Year Book of
International Law, Vol. 4), began with the premise that the exclusive right
to pearl shell, a product of the subsoil of the sea-bed, is derived from
ownership of the sea-bed where the shell bank lies. He felt, conversely, that
ownership had been acquired through the exploitation of pearl shell,
sponge and béche-de-mer. We cannot but note the circular reasoning in his
argument, even though, until recently, it was widely accepted in Britain.
Oppenheim-Lauterpacht, one of the outstanding British treatises on inter-
national law, states that —

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200 CONTINENTAL SHELF (DISS. OP. ODA)

“{IJt is not inconsistent with principle, and is more in accord with
practice, to recognise that, as a matter of law, a State may acquire, for
sedentary fisheries and for other purposes, sovereignty and property
in the surface of the sea-bed.” (International Law, Vol. I, 8th ed., 1955,
p. 628.)

This opinion seems to imply that sovereignty over the sea-bed, and hence,
the right of exclusive use, is obtained through positive acts of exploitation.
But if the acts of exploitation are not in themselves exclusive, it is difficult
to see how a right of sovereignty can be derived from them. If, on the other
hand, the use is exclusive, but based upon an assertion of sovereignty, the
argument seems to collapse because of a glaring petitio principii. Smith
mistakenly interpreted the Twiss statement as “recognising the principle
that the bed of the sea can be acquired by prescriptive occupation” (Smith,
Great Britain and the Law of Nations, Vol. II, 1935, p. 121). On another
occasion, he stated his belief that this practice had established that “par-
ticular States may acquire by usage and undisturbed possession an exclu-
sive title to the small portions of the seabed in which these products are to
be found” (Smith, The Law and Custom of the Sea, 3rd ed., 1959, p. 81).
Colombos indicated, in his very worthwhile work on the law of the sea, that
the surface of the sea-bed was of a piece with the waters of the open sea
above it. He allowed, however, that, with reference to the pearl-shelling off
the coast of Ceylon, a limited portion of the bed of the open sea was
susceptible of occupation, “[e]xceptionally, on grounds based on historical
and prescriptive considerations” (The International Law of the Sea, 4th ed.,
1959, p. 61). In my view, the concept of possession or occupation of the
sea-bed need not have been drawn into a situation where the only issue was
control by the coastal State over certain exceptional fishing activities,
conducted beyond the territorial limit.

70. I do not find any compelling logical necessity for considering the
exploitation of resources attached to the sea-bed in terms of the legal status
of the submerged lands. There is no need to talk about the occupation of
the sea-bed, when the activities involved in acquiring the resources occur in
the waters above it. The only time “occupation” may come into play is with
reference to the waters above the resources being exploited while harvest-
ing is being carried on. The question should not be whether resources are
swimming in the ocean or attached to the sea-bed but, rather, what human
activities are required for their exploitation. The so-called sedentary
fisheries pertained rather to the high seas than to the sea-bed. I defend the
view that, since both types of fishing are carried on in the high seas, the
exploitation of resources attached to the sea-bed is not different from
regular fishing, and that there was no reason why the same legal rules
should not have applied to both. Such few reasons as have ever been put
forward to justify either the exclusion of sedentary fisheries from the
general régime of the high seas fisheries, or their inclusion in a régime of the
sea-bed are, in the last analysis, unconvincing. In fact, although their views

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on occupation of the sea-bed were perhaps somewhat wide of the mark, the
ultimate goal of Hurst and like-minded scholars was surely to protect
historic rights ; and their primary argument seems to be based on pre-
scription of fishing, with only secondary importance being attached to
occupation of the seabed. Only a rationale similar to that used for exclud-
ing historic bays from the régime of the high seas might have been invoked
to create an exception for certain coastal States.

2. Fishing by means of embedded equipment

71. Fishing carried on with permanent equipment has been seldom
discussed, and then only on a rather theoretical basis. Gidel is one of the
few who have considered this problem. He was well aware of an inadequate
understanding of sedentary fisheries, in the sense of occupation of the
sea-bed, but he felt that sedentary fishing, comprising, as it did, an excep-
tion to the general rule, was to be permitted only under strict conditions,
while ordinary fishing was an incident of the freedom of the seas. Gidel’s
views are clearly shown in this statement :

[Translation]

“To endeavour to reconcile the lawfulness of sedentary fisheries
outside the limit of the territorial waters with the concept of freedom
of the high seas is... to persist in the attempt to square the circle.
Sedentary fisheries and freedom of the high seas are not compatible as
concepts of like rank and value.” (Le Droit international public de la
mer, Vol. 1, 1922, p. 500.)

Gidel did not completely deny the legality of such usage when the part of
the sea in question had been utilized for the purpose of sedentary fishing
for many years past and such usage had not been protested by other
nations. It should be noted that Gidel was not concerned with any juris-
dictional issue, but solely with the utilization of the seas for the purpose of
exploiting the resources. The reason for this seems to be that Gidel’s
approach to the law of sedentary fishing was coloured by a preoccupation
with the problems posed by permanent installations or equipment (ibid,
p. 488). At any rate, the two-fold use of the term “sedentary fishing” can be
traced back to Gidel and has since been a source of confusion. The
assertion of this great jurist that sedentary fishing conducted from a
permanent installation or with permanent equipment is, in the absence of
long usage, incompatible with freedom of the high seas, has found too-
ready acceptance.

72. For, even when discussing sedentary fishing carried on through
permanent installations or equipment, it was excessive, hence inappro-
priate, to speak in terms of occupation of the sea-bed or of freedom of the
seas. Admittedly, the use of such techniques might interfere to some degree
with navigation and regular fishing, but the difference between “perma-

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nent” equipment and fishing vessels which are stationary for any length of
time was not of great significance. Since exploitation of resources was the
important factor, and since such exploitation had been clearly established
as consistent with the freedom of the seas, there was no reason to attach
different legal rules to equally inoffensive methods. The construction of
permanent installations or equipment might have been subject to technical
rules provided by international law. Even so, the prohibition of exploita-
tion of marine resources from special equipment would not have been
justified. Being legally permissible, such activities may well be claimed by
coastal States as creative of historic fishing rights in suitable cases.

* *

73. To sum up two types of fishing are included in the category of
“sedentary fishing”, but, contrary to the doctrines of scholars in this field, I
do not believe that “sedentary fishing”, in either sense, should have been
treated independently from regular fishing and in terms of the occupation
of the sea-bed. Of course, the peculiar problems arising from different
methods would have required appropriate solutions within the régime of
the high seas. It should have been remembered that sedentary fishing was a
type of human activity long protected by international law. In the age prior
to the Truman Proclamation in 1945, there was no ground for suggesting
that sedentary fishing, and means of occupation of the sea-bed, could have
justified the exclusive claims of the coastal State to wider areas to the
offshore submarine regions. If there was any legal doctrine prior to the
1958 Conference on the Law of the Sea it may have been derived from the
long usage of sedentary fisheries, which could have given rise only to a
claim to historic rights to those specific fisheries. It might have been
claimed that, because of the long-term practice of sedentary fishing, his-
toric rights to such fishing — but not to any submarine areas — were justi-
fied.

Section II. Sedentary Fisheries in the 1958 Conventions
on the Law of the Sea

1. Draft prepared by the International Law Commission

74. Few problems seem to have been discussed by the International
Law Commission involving more complicated concepts and depending on
less reliable data than the problem of sedentary fisheries. In his first report
on the high seas, submitted to the Commission, Professor J. P. A. François,
the Special Rapporteur, stated :

“Fisheries may be described as sedentary either by reason of the
species with which they are concerned, that is to say species attached

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to the soil or irregular surfaces of the sea bed, or by reason of the
equipment employed, for example stakes driven into the sea bed.”
(A/CN.4/17, p. 31.)

Without a doubt François had borrowed this concept from Gidel. He
explained that sedentary fishing, as such, was allowable, although it might
be not in conformity with the principle of freedom of the seas.

75. In his 1951 report, Frangois recognized the existence of two ques-
tions :

“(1) May a State regulate sedentary fisheries unilaterally ?

(2) May a State reserve sedentary fisheries for its own subjects ?”
(A/CN.4/42, p. 51.)

He submitted for approval the following theory :

“Sedentary fisheries characterized by the effective and continued
use of a part of the high seas without any formal and repeated protests
against such use having been made by other States, and particularly
by such States as, by reason of their geographical situation, could have
put forward objections of particular weight, shall be recognized to be
lawful, provided that the rules governing them allow their use by
fishing craft irrespective of nationality and are limited to maintaining
order and conserving the beds in the best interests of the fisheries by
means of duties fairly assessed and collected.” (Ibid., p. 62.)

The first part of this proposal, reading “les pêcheries sédentaires .. . sont
reconnues comme licites” appears irrelevant to either of the two questions
concerning the State’s control which François himself had raised, for it is
concerned solely with the legality of fishing activities. At its 195] session,
while freely admitting its ignorance on the subject of sedentary fisheries,
the International Law Commission adopted the following text :

“The regulation of sedentary fisheries may be undertaken by a State
in areas of the high seas contiguous to its territorial waters, where such
fisheries have long been maintained and conducted by nationals of
that State, provided that non-nationals are permitted to participate in
the fishing activities on an equal footing with nationals. Such regu-
lation will, however, not affect the general status of the areas as
high seas.” (International Law Commission Yearbook, 1951, Vol. I,
p. 143.)

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204 CONTINENTAL SHELF (DISS. OP. ODA)

The discussion on the subject indicates that the majority of the Commis-
sion thought that sedentary fisheries should be regulated independently of
the problems of the continental shelf. The Commission took the view that
the special position of sedentary fisheries justified recognition of special
rights attaching to coastal States whose nationals had been carrying on
fishing there over a long period. The Commission did not discuss the
general problem of sedentary fisheries, considering only the specific case
where coastal States had carried on sedentary fishing off their coasts for a
long period of time. It was somewhat uncertain of its conclusions and
awaited comments by member States before proceeding further. Among
the countries that sent comments on the 1951 draft, Norway stood out
from the rest in that it held the view that so-called sedentary fisheries
should not be treated in a different way from other fisheries. On the basis
of comments by several governments on the provision in the 1951 draft,
Francois, in his 1953 report, prepared a provision on sedentary fisheries
that was not far in substance from the concept in the 1951 draft, which that
body had adopted ({nternational Law Commission Yearbook, 1953, Vol. IL,
p. 49).

76. Only at the 1953 session of the Commission, held almost contem-
poraneously with the outbreak of a dispute between Australia and Japan
concerning pearl-shelling off the former’s coast, Mr. (later Sir Hersch)
Lauterpacht and others were of the opinion that the problem of sedentary
fisheries should be treated together with that of the continental shelf,
where the coastal State is permitted to exercise its sovereign rights to
explore and exploit resources. As a result of these views, the separate article
on sedentary fisheries as proposed in the François report was dropped, and
the topic was included in the 1953 draft of the régime of the continental
shelf. The Commission was of the opinion that, except for cases in which
nationals of other States have existing rights in them, sedentary fisheries
are subject to the sovereign rights of the coastal State over its continental
shelf (ibid., p. 214). In 1951 exploitation of resources of the sea fell into
three categories : regular fisheries, sedentary fisheries and the continental
shelf. By 1953 there were two classifications : regular fisheries on the one
hand, and the continental shelf, including sedentary fisheries, on the other.
“Products of sedentary fisheries” as understood in 1953 meant only
natural resources attached to the bed of the sea. In respect of such seden-
tary fisheries as pearl-shelling, the International Law Commission in 1956
maintained its earlier position. In the commentary to the 1956 draft, it was
Stated that :

“the products of ‘sedentary’ fisheries, in particular, to the extent that
they were natural resources permanently attached to the bed of the sea
should not be left outside the scope of the régime adopted [for the
continental shelf] (International Law Commission Yearbook, 1956,
Vol. IL p. 297).

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It was indicated that the existing rights of nationals of other States should
be respected. However, apart from the case of acquired rights, the sover-
eign rights of the coastal State over its continental shelf were also to cover
sedentary fisheries.

77. On the other hand, fishing by means of equipment embedded in the
floor of the sea-bed, which had been also categorized as sedentary fisheries,
became subject to specific treatment differentiated from the fishing of
resources sedentary at the sea-bed. In his report to the 1956 session, the
Special Rapporteur pointed out that there was one aspect of the question
which the Commission had overlooked, namely fisheries regarded as
sedentary because of the equipment used, e.g., stakes embedded in the
sea-floor. In his opinion, this class of fisheries was not covered by the
Commission’s draft of 1953. He suggested that the original article in the
1951 draft be reintroduced for these fisheries. In 1956 the Commission
accepted the Rapporteur’s view and decided that it was still necessary to
have an article regulating fisheries involving equipment embedded in the
floor of the sea. The 1956 draft provided under the section on fishing, as
follows :

“The regulation of fisheries conducted by means of equipment
embedded in the floor of the sea in areas of the high seas adjacent to
the territorial sea of a State, may be undertaken by that State where
such fisheries have long been maintained and conducted by its
nationals, provided that non-nationals are permitted to participate in
such activities on an equal footing with nationals.” ([bid., p. 293.)

This provision was not essentially different from the wording of the 1951
draft, although the latter was concerned primarily with sedentary fisheries
in the sense first alluded to above: fishing for objects attached to the
sea-bed. The Commission considered in 1956 that :

“Banks where there are fisheries conducted by means of equipment
embedded in the bed of the sea have been regarded by some coastal
States as under their occupation and as forming part of their territory.
Without wishing to describe these areas as ‘occupied’ or as constitut-
ing ‘property’ of the coastal State, the Commission considers that the
special position of these areas justifies special rights being recognized
as pertaining to coastal States whose nationals have been carrying on
fishing there over a long period.

The existing rule of customary law by which nationals of other
States are at liberty to engage in such fishing on the same footing as
the nationals of the coastal State should continue to apply. The
exercise of other kinds of fishing in such areas must not be hindered
except to the extent strictly necessary for the protection of the fish-
eries contemplated by the present article.

The special rights which the coastal State may exercise in such areas
must be strictly limited to such rights as are essential to achieve the

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ends for which they are recognized. The waters covering the seabed
where the fishing grounds are located remain subject to the régime of
the high seas.” (Ibid.)

78. Thus the final draft of 1956 on the law of the sea dealt in completely
different ways with two types of fisheries, both of which may properly be
classified as sedentary fisheries. Article 68 related to the régime of the
continental shelf and Article 60 was a separate provision for fisheries
conducted by means of equipment embedded in the floor of the sea.

2. Provisions of the 1958 Conventions on the Law of the Sea

79. Paralleling the different treatment accorded the two types of sed-
entary fisheries by the International Law Commission, the Geneva Con-
ference in 1958 took up the problem of these fisheries separately. The
fishing of sedentary resources attached to the sea-bed was examined as
part of the problem of the continental shelf in the Fourth Committee, and
fishing carried on with equipment embedded in the sea-floor was dealt
with in the Third Committee in charge of high sea fisheries.

80. In the Fourth Committee the delegates differed on the kind of
resources to be included in the provision which defined the fundamental
concept of the continental shelf. Many European coastal States insisted
that the list should be limited to mineral resources. Thé Japanese delegate
warned that the inclusion of sedentary fisheries in the concept of conti-
nental shelf would lead to a restriction of the freedom of the seas, and he
explained that resources living in the sea should be covered by the general
régime of fishing. A radically opposite view, supported by the delegates
from Burma and the Republic of Korea, maintained that even “bottom-
fish” should be included in the resources of the continental shelf. Proposals
were submitted respectively by Sweden, Greece and the Federal Republic
of Germany to replace the words “natural resources” in the draft of the
International Law Commission with the expression “mineral resources”
(A/CONF.13/C.4/L.9, 39, 43). This would have had the effect of exclud-
ing sedentary fisheries from the régime of the continental shelf.

In contrast, the Burmese proposal stated that :

“{t]he term ‘natural resources’ includes so-called bottom-fish and
other fish which, although living in the sea, occasionally have their
habitat at the bottom of the sea or are bred there” (A/CONF.13/
C.4/L.3). |

As a compromise between the two opposing views, a new proposal was
jointly submitted by Australia, Ceylon, India, Malaya, Norway and the
United Kingdom :

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207 CONTINENTAL SHELF (DISS. OP. ODA)

“The natural resources referred to in these articles consist of
mineral and other non-living resources of the seabed and the subsoil
together with living organisms belonging to sedentary species, that is
to say, organisms which, at the harvestable stage, either are immobile
on or under the seabed or are unable to move except in constant
physical contact with the seabed or the subsoil; but crustacea and
swimming species are not included.” (A/CONF.13/C.4/L.36.)

The sponsoring States intended to draw a line between the mineral and
sedentary resources on the one hand, and fish resources, including crus-
tacea and bottom-fish on the other. Introducing this proposal, the Austra-
lian delegate explained that it was in his view senseless to give the coastal
State sovereign rights over such mineral resources as the sands of the
sea-bed, but not over the coral, sponges and the living organisms which
never moved more than a few inches or a few feet on the floor of the sea. He
emphasized that that did not apply to crabs and other crustacea, which
could move a considerable distance. The proposals of Sweden et a/ and the
proposal of Burma were ali heavily defeated, while the joint proposal of
the six States was eventually adopted by the Committee. At the plenary
meeting, that portion of the joint proposal preceding the semi-colon was
separately voted on and approved by the vote of 62-4-2, and became
Article 2, paragraph 4, of the Convention. However, the exclusion relating
to crustacea (of which Mexico had almost secured the deletion in the
Committee) was disapproved by a vote of 14-43-9.

81. In point of fact, all the provisions except Article 2, paragraph 4, of
the Convention on the Continental Shelf were drafted to be applicable
mainly to the exploitation of the mineral resources of submerged lands,
and not to the exploitation of sedentary species. Although I do not now
hesitate to admit, in view of the lack of protest against this particular
provision and of some repeated practices over the past two decades, that
sedentary species will be treated as continental shelf resources, the un-
necessary nature of the consolidation of the exploitation of sedentary
species with the régime of the continental shelf was quite clear at the time
of the adoption of the 1958 Convention on the Continental Shelf.

82. The original provision concerning fishing by means of embedded
equipment in the 1956 draft of the International Law Commission, which
had nothing to do with the concept of conserving marine resources, was
nevertheless referred to the Third Committee together with the problem of
the conservation of living resources of the high seas. Despite the view of the
Norwegian delegate that it did not deal with an urgent issue of interna-

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tional law such as should concern the Conference, the following provision,
promoted in large measure by Ghana, was finally adopted by the Third
Committee :

“Article 13

1. The regulation of fisheries conducted by means of equipment
embedded in the floor of the sea in areas of the high seas adjacent to
the territorial sea of a State may be undertaken by that State where
such fisheries have long been maintained and conducted by its
nationals, provided that non-nationals are permitted to participate in
such activities on an equal footing with nationals except in areas
where such fisheries have by long usage been exclusively enjoyed by
such nationals. Such regulations will not, however, affect the general
Status of the areas as high seas.

2. In this article, the expression ‘fisheries conducted by means of
equipment embedded in the floor of the sea’ means those fisheries
using gear with supporting members embedded in the sea floor, con-
structed on a site and left there to operate permanently or, if removed,
restored each season on the same site.”

83. Article 13 as thus drafted does not present a general régime of
fishing by means of equipment embedded in the floor of the sea. The
coastal State may regulate such fishing only “where such fisheries have
long been maintained and conducted by its nationals”. The coastal State is
allowed, on this specific condition, to apply its own national legislation to
foreign fishermen who are engaged in this type of fishing in the areas
concerned. This undoubtedly would not have been in conformity with the
traditional principle of freedom of the seas, despite the provision in the
Convention to the effect that “such regulation will not, however, affect the
general status of the areas as high seas”. The only basis I can see for such
derogation is the presence of a historic right. This construction is surely
justified by the fact that participation on an equal footing by foreign
nationals in this type of fishing is prevented “where such fisheries have by
long usage been exclusively enjoyed by. . . nationals [of the coastal State]’”.
This clause may be interpreted to mean that exclusive fishing is allowable
to the coastal State in areas where it has long kept out foreign fishermen
who would otherwise have fished there. However, I believe that no case
exists to which this provision, as thus analysed, would be applicable.

84. After having explained the way in which the two types of sedentary
fisheries had long been interpreted from a legal point of view, particularly
since the last century, I have thus attempted to show that the relevant
provisions of the Geneva Conventions were not necessarily drafted upon
the basis of a correct interpretation of the past practice of such fisheries.

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Leaving aside the problems involved in the provisions relevant to seden-
tary fisheries in the Geneva Conventions, namely Article 2, paragraph 4,
of the Continental Shelf Convention and Article 13 of the High Seas
Fisheries Convention, the thought was never expressed in any of the 1958
Conventions on the Law of the Sea that these sedentary fisheries ought
properly to have been made a ground for claiming such areas of the sea-bed
as continental shelf.

Section III. Sedentary Fisheries at the Third United Nations Conference on
the Law of the Sea

85. The subject of sedentary fisheries is one of those left almost
untouched by delegates in the Sea-bed Committee and UNCLOS III. In
the ISNT of 1975, the treatment of sedentary fisheries as a resource of the
continental shelf was taken for granted in terms of Article 2, paragraph 4,
of the Geneva Convention on the Continental Shelf. This provision was
not touched at all throughout the ISNT, the RSNT and the ICNT and its
revisions, and it now stands as Article 77, paragraph 4, of the 1981 draft
convention on the Law of the Sea. Irrespective of whether this provision is
workable or not, no doubt remains that it cannot constitute a basis for
justifying a title to the continental shelf by reason of sedentary fisheries, as
suggested by Tunisia. A provision concerning fishing carried out from
embedded installations, as in Article 13 of the High Seas Fisheries Con-
vention, completely disappeared in the ISNT. No reason for this disap-
pearance is to be found in the Official Records of UNCLOS III. Practically
no attention was paid to this problem throughout UNCLOS IIL, but it may
well be that, because of the 200-mile exclusive economic zone, sedentary
fisheries in terms of fishing from permanently fixed installations, as a part
of high seas fishing, would not have made any sense under the new
régime.

Section IV. Historic Rights

86. In connection with the Submissions of Tunisia, as referred to in
paragraph 65 above, I would briefly like to touch upon the question as to
whether the areas west of the ZV 45° line within the 50-metre isobath, as
claimed by Tunisia, would have constituted a part of its historic waters
because of its longstanding practice of fisheries, whether sedentary or not.
With regard to historic waters, including historic bays, sufficient expla-
nation is given in paragraph 104 of the Judgment. Inheriting almost word
for word the provisions of the 1958 Convention on the Territorial Sea and
the Contiguous Zone, the draft convention on the Law of the Sea pro-
vides :

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210 CONTINENTAL SHELF (DISS. OP. ODA)

“Article 10. Bays

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

As stated in paragraph 104 of the Judgment, no effort to elaborate on
historic waters, including historic bays, has been made since 1958, yet in
my view the question whether or not the Gulf of Gabes may be claimed by
Tunisia as historic waters or historic bays because of its longstanding
sedentary fisheries is not relevant to the present case. It also seems ne-
cessary to point out that the concept of historic waters may be claimed only
where strict adherence to the geographical conditions required for internal
waters (such as bays, straight baselines) might lead to a somewhat in-
equitable result because of the longstanding exercise of powers by the
coastal State concerned. The area claimed by Tunisia, extending to off-
shore areas west of the ZV 45° line not framed by any part of the Tunisian
coast, apart from the Gulf of Gabes, does not meet the geographical
conditions for internal waters.

87. What, however, the Court fails to recognize is the fact that at the
1958 Conference the question of historic title was taken up in connection
with the delimitation of the territorial sea. In the draft prepared by the
International Law Commission in 1956, at least in the provision concern-
ing the delimitation of the territorial waters between two adjacent States,
there was no reference to historic titles. In the course of the 1958 Con-
ference, Norway suggested a provision concerning the median line for the
delimitation of the territorial shelf between adjacent States :

“shall not apply, however, where one of the States concerned through
prescriptive usage has acquired the right to delimit its territorial sea in
a way which is at variance with the provision” (A/CONF.13/C.1/
L.97).

The words “through prescriptive usage” were replaced by the words “by
reason of historic title”. The Norwegian proposal was adopted by the First
Committee, and thus Article 12 of the 1958 Convention on the Territorial
Sea and the Contiguous Zone provides as follows :

“1. Where the coasts of two States are opposite or adjacent to each
other, neither of the two States is entitled, failing agreement between
them to the contrary, to extend its territorial sea beyond the median
line every point of which is equidistant from the nearest points on the
baselines from which the breadth of the territorial seas of each of the
two States is measured. The provisions of this paragraph shall not
apply, however, where it is necessary by reason of historic title or

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other special circumstances to delimit the territorial seas of the two
States in a way which is at variance with this provision.”

This has also been inherited, almost word for word, as a provision of the
1981 draft convention on the Law of the Sea :

“Article 15. Delimitation of the Territorial Sea Between
States with Opposite or Adjacent Coasts

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

88. It is, however, very important to note that even at the 1958 Con-
ference there was no suggestion that this exception to the median line
method of territorial-sea delimitation should be applied to the case of
delimitation of the continental shelf, and no argument in favour of such an
idea was ever put forward at UNCLOS III. Thus it may be assumed that
historic title by reason of longstanding practice of sedentary fisheries
might justify some deviation in the line of the delimitation of the territorial
sea, but otherwise historic title would not have any impact on delimitation
of the continental shelf. This is not incompatible with the principle that
any historic fishing right based on longstanding practice should be re-
spected whatever the status of the submerged areas under the new régime.
The Court states in paragraph 104 that “it may be that Tunisia’s historic
rights and titles are more nearly related to the concept of the exclusive
economic zone”. I regret to say that I totally disagree with this contention. I
shall explain the concept of the exclusive economic zone at a later stage,
but it has nothing to do with historic titles, as the Court suggests.

CHAPTER IV, NEw TRENDS IN THE CONCEPT OF THE
CONTINENTAL SHELF

Section I. The Halting of the Expansion of the Outer Limit of the
Continental Shelf

89. While the basic legal concept of the continental shelf was strongly
confirmed by the 1958 Convention on the Continental Shelf, and was
further endorsed by the 1969 Judgment of the Court as being established
under customary international law, the actual extent of the legal conti-
nental shelf had been left indeterminate, because of the introduction of the
equivocal notion of exploitability which suggested that the area could

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eventually expand under virtually the whole of the high seas. This trend
was halted by the rise of the new concept of the international sea-bed area
late in the 1960s. The realization that the concept of exploitability could be
interpreted to mean that all sea-bed areas of the world would eventually be
divided among separate States led Malta to take the initiative by intro-
ducing the concept of the common heritage of mankind, to be applied in
the area beyond a redefined continental shelf.

90. Ambassador Pardo of Malta made an historic speech on 1 Novem-
ber 1967, which reads in part as follows :

“67. The ... interpretation of the 1958 Geneva Convention [en-
abling the areas beyond the continental shelf to be placed under
certain international régimes] has, however, not gone unchallenged
since it is in direct contradiction to the explicit wording of Article 1
(a), which states that the continental shelf extends‘... to... the
submarine areas adjacent to the coast... . toa depth of 200 metres and
beyond that limit to where the depth of the superjacent waters admits
of the exploitation of the natural resources of the said areas’. Thus an
influential school of thought denies the possibility of any legal prob-
lem whatsoever. Professor Shigeru Oda of Tohoku University, for
instance, points out that : ‘there is no room to discuss the outer limits
of the continental shelf or any area beyond the continental shelf under
the Geneva Convention since. . . all the submerged lands of the world
are necessarily part of the continental shelf by the very definition of
the Convention’. Under this concept a coastal State, as its technical
capability develops, may extend its jurisdiction across the deep-sea
floor up to the midway point between it and the coastal State oppo-
site, in accordance with the rules contained in Article 6 of the Con-
vention. Such an interpretation gives the governing Powers of islands
such as Clipperton, Guam, the Azores, St. Helen or Easter, sovereign
rights over millions of square miles of invaluable ocean floor.

68. More important than the opinion of jurists, however, and
however distinguished they may be, is the action taken by govern-
ments ; and such action appears to be increasingly based on an
interpretation of the 1958 Geneva Convention even more far-reaching
than that of Professor Oda. For instance, the United States has
already leased tracts of land situated under water several hundred
fathoms deep and well beyond its territorial waters, basing itself on a
Department of Interior legal memorandum which holds that the
leasing authority of the United States under the Outer Continental
Shelf Lands Act “extends as far seaward as technological ability can
cope with the water depth, this is in accord with the Convention of the
Sea adopted at Geneva’. This practice is spreading.” (GAOR, 22nd
Sess., Ist Comm., 1515th Meeting, p. 9.)

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Owing to the initiative taken by Malta, the United Nations General
Assembly adopted on 18 December 1967 resolution 2340 (XXII) called
“Examination of the question of the reservation exclusively for peaceful
purposes of the sea-bed and the ocean floor, and the subsoil thereof,
underlying the high seas beyond the limits of present national jurisdiction,
and the uses of their resources in the interests of mankind”, by which an ad
hoc committee was established to study the scope and various aspects of
this subject. It was thus tacitly understood that there would have to be an
international sea-bed area beyond the limits of national jurisdiction.

91. In parallel with the initiative of Malta, a movement had been
emerging among non-governmental organizations in the United States to
place the deep ocean floor under a certain kind of international control,
and in the late 1960s a number of Bills were introduced in the United States
Congress for a new régime to that effect. On the other hand, the oil industry
in the United States seemed to be more willing to place the safety of its
investments off the coasts of some developing nations under some kind of
international control, in order to minimize the risks of eventual national-
ization. Encouraged by this, President Nixon announced his country’s
policy on the ocean in his report to Congress on 18 February 1970 :

“We also believe it important to make parallel progress toward
establishing an internationally agreed boundary between the Conti-
nental Shelf and the deep seabeds and on a régime for exploitation of
deep seabed resources.” (USDS, Vol. 62, p. 314.)

In a subsequent statement on 23 May 1970 he proposed that :

“All nations [should] adopt as soon as possible a treaty under which
they would renounce all national claims over the natural resources of
the seabed beyond the [200-metre isobath] and would agree to regard
these resources as the common heritage of mankind.”

It was clear, however, in view of his further proposal for an international
trusteeship zone for the continental margins beyond the 200-metre isobath
that, unlike some developing nations seeking the benefits derived from the
exploitation of the “areas beyond” as the common heritage of mankind,
the United States, which wanted certain international controls imposed
upon other coastal States for the security of its own invested capital, yet
attempted to reserve access to the continental margin for its interests.

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92. The United Nations Sea-bed Committee, established pursuant to
General Assembly resolution 2340 (XXII), started its work in 1968. For
three years it deliberated, and during all that time no nation cast doubt on
the principle that the unrestricted expansion of the continental shelf in
terms of exploitability should be abandoned so as to leave some part of the
sea-bed free for the benefit of the international community. Nevertheless,
the Committee failed to adopt any declaration. Despite this, the United
Nations General Assembly, at its twenty-fifth session in 1970, adopted by
108-0-14 votes a Declaration of Principles governing the international
sea-bed area (resolution 2749 (XXV)), which affirmed that :

“[tlhere is an area of the sea-bed and the ocean floor, and the subsoil
thereof, beyond the limits of national jurisdiction, the precise limits of
which are yet to be determined”.

It also adopted by 108-7-6 votes General Assembly resolution 2750 C
(XXV), whereby it :

“Noting that the political and economic realities, scientific devel-
opment and rapid technological advances of the last decade have
accentuated the need for early and progressive development of the law
of the sea, in a framework of close international co-operation...

2. Decide{d] to convene in 1973 .. . a conference on the law of the
sea which would deal with ... a precise definition of the area, and a
broad range of related issues including those concerning the régimes
of... the continental shelf.”

By the same resolution, the Sea-bed Committee was broadened, both in
membership and functions.

93. Thus it was already clear that in the sea-bed areas of the vast oceans
of the world, where the concept of the continental shelf had been the only
applicable régime, the new concept of the common heritage of mankind
had arisen to call a halt to the indefinite expansion of the continental shelf,
in order to preserve the international sea-bed beyond it.

Section II. Fluctuation of the Criteria for the Outer Limit of the
Continental Shelf

I. Suggested criteria

94. The outer limit of the continental shelf was the subject of extensive
argument throughout the duration of the enlarged Sea-bed Committee and
UNCLOS HI. The notion of distance from the coast was proposed in
addition to, or in place of, the existing criterion of the 200-metre depth, and
the distance criterion or a combination of the distance and the depth
criteria were gaining in importance, while the somewhat ambiguous con-

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cept of exploitability had become interpreted in such a way as to allow each
coastal State to claim as far as the foot of the continental margin as a
potential reservoir of petroleum resources, leaving the hard mineral
resources of the deep ocean floor as the common heritage of mankind to be
administered by an international authority.

95. In 1970 the United States, implementing the proposals made by
President Nixon a few months before, introduced a draft convention
proposing an international sea-bed area which would lie beyond the con-
tinental shelf as defined in terms of the 200-metre isobath. However, it also
suggested the institution of an international trusteeship area to comprise
the continental margin beyond the continental shelf and constitute a part
of the international sea-bed area in which each coastal State would be
responsible for licensing, supervision and exercise of jurisdiction. In this
area each coastal State would also be entitled to a portion of the royalties or
profits derived from the exploitation of the resources (A/AC. 138/25). The
real intention of the United States seems to have been for the continental
margin, though given the status of an international sea-bed area, to be
placed under the control of the coastal State, while nevertheless featuring
international protection of the relevant investments from any arbitrary
nationalization or confiscation by such State.

96. In 1972 many landlocked and shelf-locked countries, acting as a
group, took a position opposing the idea of wider continental shelf and/or
narrower international sea-bed areas, while France, on the other hand,
advocated the 200-mile distance criterion for the continental shelf, and the
Netherlands suggested establishing an intermediate zone between the
continental shelf and the international sea-bed areas. In the Kenyan pro-
posal, presented in that year, the control of the coastal State in terms of a
200-mile Exclusive Economic Zone would definitely be extended not only
to living resources but also to minerals. However, States which had even
broader continental shelves in the geological sense, such as the United
States, Canada, Brazil, the Soviet Union and India, contended that that
zone would not be sufficient and accordingly claimed sea-bed areas farther
than 200 miles from the coast as being still part of the continental shelf.
These extensive sea-bed areas could have been defined in terms of the
200-metre depth, as at the Geneva Conference of 1958. However, since
petroleum resources exist not only in the continental shelf itself but also in
the continental slope and margin beyond, the demand of those coastal
States could not simply stop at the 200-metre depth-line, even though this
might lie more than 200 miles from the coast. Thus the continental shelf in
legal terms needed to be interpreted in its widest sense in order to incor-
porate the outermost fringe of the continental margin.

97. In 1973 and 1974 numerous coastal States put forward concrete
proposals, of which that from the Soviet Union was distinguished by a

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combination of the 500-metre depth and the 100-mile distance from the
coast as a criterion for the outer limit of the continental shelf ; and Greece
likewise suggested a combination of distance and depth of water. The other
proposals tended to abandon the depth criterion in favour of distance
and/or geomorphological criteria, but all militated towards the diminution
of the potential international sea-bed. The concept of natural prolongation
returned at Caracas in a nine-State proposal (Canada, Chile, Iceland,
India, Indonesia, Mauritius, Mexico, New Zealand and Norway) which
read, in part:

“Article 19

2. The continental shelf of a coastal State extends beyond its ter-
ritorial sea to a distance of 200 miles from the applicable baselines
and throughout the natural prolongation of its land territory where
such natural prolongation extends byond 200 miles.” (A/CONF.62/
LA.)

98. The United States, in 1973, totally revised its position and suggested
the concept of a coastal sea-bed economic area, which would cover the
expanse from the outer limit of the 12-mile territorial sea to the lower edge
of the continental slope (A/AC.138/SC.II/L.35). The real intention of the
United States was to ensure, on the one hand, that the exploitation of this
sea-bed area should not be impeded by any coastal State except for a public
purpose, on a non-discriminatory basis, and with payment of just com-
pensation, and, on the other hand, to suggest that the coastal State could
bring such an activity under its own jurisdiction on condition that a
portion of the revenues gained from exploiting this area might be dedicated
to the international community. It might be said that although this new
draft ostensibly makes a striking contrast to the United States’ draft
convention of 1970, the aims of both proposals were in fact not so dif-
ferent. However, in 1974 the United States abandoned its 1973 proposal
and switched back to the subject of the outer limit of the continental shelf
with a composite definition involving the economic zone, natural prolon-
gation and geomorphology :

“Article 22

2. The continental shelf is the sea-bed and subsoil of the submarine
areas adjacent to and beyond the territorial sea to the limit of the
economic zone or, beyond that limit, throughout the submerged nat-
ural prolongation of the land territory of the coastal State to the outer
limit of its continental margin, as precisely defined and delimited in
accordance with Article 23 [on limits].” (A/CONF.62/C.2/L.47.)

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2. Negotiating texts

99. At the third session of UNCLOS III in 1975, the ISNT was prepared
as acompilation of the work done by the chairmen of the main committees
in their respective personal capacities. Although they may have had con-
sultations with some groups or delegations and may even have taken into
account the various proposals and ideas presented previously, the end
result was nothing more than the personal work of each chairman. Appar-
ently basing himself on two proposals, one by the nine countries (Canada
and others) and the other by the United States, both of which are quoted
above, the Chairman of the Second Committee drafted the following
provision :

“Article 62. Definition of the Continental Shelf

The continental shelf of a coastal State comprises the sea-bed and
subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolongation of its land territory to the outer
edge of the continental margin, or to a distance of 200 nautical miles
from the baselines from which the breadth of the territorial sea is
measured where the outer edge of the continental margin does not
extend up to that distance.”

The provision in the ISNT remained, without any change, as Article 64 in
the RSNT and Article 76 in the ICNT.

100. In this connection I must refer to a provision of Article 69 of the
ISNT on payments and contributions with respect to the exploitation of
the continental shelf beyond 200 miles. Its background is the fact of
geography that the formation of the continental shelf can be extremely
inequitable for some coastal States. If the legal continental shelf is to
incorporate not only the 200-mile distance from the coast but also the outer
edge of the continental margin — which could lie beyond that distance —
thus embodying sea-bed areas where petroleum deposits can be found, the
geographical inequality of States will be further exaggerated. But the
landlocked or shelf-locked States not having any continental shelf would
not allow the excessive claims made by a handful of States to go unchal-
lenged. The provision thus seems to have been drafted by some geogra-
phically advantaged States simply to appease the dissatisfied States. In
point of fact it originated mainly in Formula A of Provision 80 of the Main
Trends of 1974, referred to above, and partly in Formula B taken from the
United States proposal of 1974 (A/CONF.62/C.2/L.47) ; in any case, to
understand this novel régime, it seems essential to analyse how the United
States position fluctuated from President Nixon’s statement of 23 May
1970 to its proposals in 1974 in “Draft articles for a chapter on the
economic zone and the continental shelf” (A/CONF.62/C.2/L.47), and
through its proposal in 1970 in “Draft United Nations Convention on the
International Sea-bed Area” (A/AC.138/25) to its proposal in 1973 in

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“Draft articles for a chapter on the rights and duties of States in the coastal
sea-bed economic area” (A/AC.138/SC.II/L.35) (emphasis added). The
provision of the ISNT was to the effect that, unlike the proceeds of the
coastal State’s exclusive interests within its 200-mile distance, the revenues
derived from exploitation beyond that limit would be dedicated to the
international community through the authority to be established for the
purpose of exploitation of the deep ocean floor, which would in turn
“distribute them... taking into account” (ISNT, Art. 69, para. 4) the
interests and needs of developing States, particularly the least developed
and the landlocked among them.

101. Thus the continental shelf would be divided into two areas, the first
being the area within 200 miles from the coast, where the exclusive interests
of the coastal State would be established, and the other, the area beyond
that, where a portion of the profits would be dedicated to the international
community, in particular the developing nations. This parallelism is
retained, with some modifications, in the draft convention as Article 82. It
cannot be over-emphasized that this formula never founded part of the
traditional concept of the continental shelf.

102. In 1978, several negotiating groups were established to negotiate
on certain hardcore issues. The sixth negotiating group was entrusted with,
among other things, the definition of the outer limit of the continental
shelf. The discussions of the group were not disclosed, but, following them,
a compromise suggestion by the chairman of the group was presented, at
the eighth session, held in 1979, to the plenary meeting on 27 April 1979
(A/CONF.62/L.37). This text, containing nine paragraphs, was totally
different from ICNT Article 76, a one-paragraph article, particularly in
the way that the continental margin beyond the 200-mile distance would
receive particular treatment in the régime of the continental shelf. At the
close of the eighth session (1979), the ICNT/Revision 1 was prepared,
which modified Article 76 to some extent along the lines suggested by the
chairman of the sixth negotiating group (A/CONF.63/L.37). According to
the explanatory memorandum by the President of the Conference :

“On one major issue, that of the compromise proposal advanced by
the Chairman of the Second Committee in document A/CONF.62/
L.37 relative to certain aspects of the continental shelf, the situation
was rendered more complex by the fact that a number of delegations
had expressed opposition to, or reservations on, the inclusion of these
proposals in a revision at this stage. The team was, therefore, obliged
to examine with the utmost care the question whether those proposals
could be judged as meeting the criterion of enjoying ‘widespread and

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substantial support prevailing in Plenary and to offer a substantially
improved prospect of a consensus’. It noted that support for the
inclusion of these proposals had been expressed by countries from all
regional groups, among which were a number of land-locked or
otherwise geographically disadvantaged States. On the other hand,
opposition to their inclusion had been based chiefly on the ground
that there had been insufficient negotiation or discussion and that the
proposals did not take adequate account of other proposals or posi-
tions. However, as those proposals represented a clear movement
away from the ICNT text which was in the light of the plenary debate
manifestly less acceptable as a continuing basis of negotiation, the
conclusion seemed inescapable that compared with the corresponding
provisions of the ICNT, the new proposals appeared to the team to
merit inclusion in the revision as offering the basis for a substantially
improved prospect of a consensus.

This important conclusion was reached unanimously by the mem-
bers of the team. The discussions in the team on all points were
characterized by a remarkable degree of agreement and understand-
ing which enabled it to arrive at unanimous decisions on all the other
texts and revisions presented to the Plenary by the Chairmen con-
cerned.” (A/CONF.62/ WP. 10/Rev.1, pp. 18 f.)

Article 76, thus redrafted in the ICNT/Revision 1, read as follows :

“1. The continental shelf of a coastal State comprises the sea-bed
and subsoil of the submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its land territory to the
outer edge of the continental margin, or to a distance of 200 nautical
miles from the baselines from which the breadth of the territorial sea is
measured where the outer edge of the continental margin does not
extend up to that distance.

2....

3. The Continental margin comprises the submerged prolongation
of the land mass of the coastal State, and consists of the sea-bed and
subsoil of the shelf, the slope and the rise. It does not include the deep
ocean floor or the subsoil thereof !.

' General understanding has been reached to the effect that on the question of
underwater oceanic ridges there will be additional discussion and a mutually
acceptable formulation to be included in Article 76 will be drawn up.”

103. At the ninth session, in 1980, the sixth negotiating group continued
deliberations on the subject of the outer limit of the continental shelf,
and those discussions were included in the report of the Chairman of
the Second Committee to the Plenary Meetings (A/CONF.62/L.51,

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UNCLOS III, Official Records, Vol. XIII, p. 82). Certain arguments rele-
vant to these issues were spelled out as follows :

“6. 00.
(a) Submarine ridges

This point, referred to in a foot-note to paragraph 3 of Article 76
was the subject of particularly intense consultations and negotiations.
In conjunction with these efforts, I submitted for the consideration of
the group at its informal meeting on 28 March 1980 a compromise
formula worded as follows. Amend the last sentence in paragraph 3 of
Article 76 to read as follows :

‘It does not include the deep ocean floor with its oceanic ridges or
the subsoil thereof.’ ”

In the ICNT/Revision 2, prepared at the close of the ninth session, some
amendments were made to Article 76 along the lines suggested by the sixth
negotiating group, so that paragraph 3 now reads as follows :

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

The text suggested in the ICNT/Revision 2 remained unchanged in the
draft convention (Informal Text) in the summer of 1980 and the draft
convention on the Law of the Sea prepared in August 1981.

104. The above account should suffice to show that there is no com-
parison between the degree to which the actual régime of the continental
shelf has found acceptance, not to mention its endorsement by the Court in
1969 as customary law, and the status of the latest definition of the shelf’s
expanse, as it has hitherto emerged from UNCLOS III. It should be crystal
clear that Article 76 of the draft convention is essentially a product of
compromise — not consensus — between the conflicting positions of var-
ious groups which have different, and sometimes opposite, interests in the
use of sea-bed areas. Well may the draft convention be expected eventually
to become binding upon many nations, once it has become widely accepted
and received a sufficient number of ratifications. Until that time, there is
no doubt that Article 76 is not a provision of any worldwide multilateral
convention, and can hardly be considered as enshrining established rules
of international law.

105. With respect to Article 76, both Tunisia and Libya had occasion to
express their own views, as follows. Tunisia stated :

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221 CONTINENTAL SHELF (DISS. OP. ODA)

“The Tunisian Government considers that Article 76, paragraph 1,
represents one of the recent trends admitted at the Third Conference
on the Law of the Sea. The whole of the text of Article 76 is the result
of long and arduous negotiations, which concerned each paragraph
and each sentence of the various paragraphs of which it is com-
posed.”

Libya’s view, on the other hand, was as follows :

“The Libyan Jamahiriya regard the first part of this paragraph
[Art. 76, para. 1] as representing existing, customary law. This is for
the reason that, on the basis of the Court’s own Judgment, in 1969, it is
clear that a coastal State is already entitled, de jure, to its natural
prolongation, in accordance with customary international law. So far
as the extension to the edge of the continental margin is concerned, it
is arguable that a coastal State’s de jure entitlement to its natural
prolongation extends to the edge of the continental margin.

The same would not be true for an area which lies beyond the edge
of a continental margin, but within 200 miles from the baseline.
Therefore the second part is not customary law so far as it defines the
outer limit of the continental shelf.”

Thus even in the eyes of the Parties to the case, the Court could not (early in
1982) have relied on Article 76 of the draft convention on the Law of the
Sea in determining the principles and rules governing the geographical
extent, or the outer limit, of the continental shelf.

Section II. Changing Concept of the Continental Shelf

106. Both in the United Nations Sea-bed Committee and in UNCLOS
III, hardly any proposal or suggestion dealing with the basic concept of the
continental shelf came to the fore. The ISNT of 1975 had a provision under
Article 63, paragraphs 1-3, which was the same as Article 2, paragraphs 1-3,
of the 1958 Continental Shelf Convention, except for the welcome dele-
tion, from paragraph 2, of the virtually senseless phrase italicized below
(which had surely been included in mistaken response to the Yugoslav
proposal mentioned above — see para. 43) :

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

Article 63, paragraphs 1-3, of the ISNT eventually entered the draft con-
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vention on the Law of the Sea without any change, and reads as fol-
lows :

“Article 77. Rights of the Coastal State Over the Continental Shelf

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

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

3. The rights of the coastal State over the continental shelf do not
depend on occupation, effective or notional, or on any express pro-
clamation.”

107. Thus in the upshot the actual régime of the continental shelf is
represented as remaining in 1981 exactly the same as in 1958. Yet it cannot
be over-emphasized that, in parallel with the change in the outer limit of
the continental shelf, the notion of natural prolongation by which the
concept of the continental shelf was embellished in the 1969 Judgment has
greatly lost its significance, particularly with the introduction of the cri-
terion of the 200-mile distance under the strong influence of the concept of
the exclusive economic zone (with which I shall deal in the next chapter),
not to mention the parallelism between that zone and a possible inner-
continental shelf of 200 miles, coupled with the possibility of a different
régime applying to the continental margin beyond that distance. In spite of
the provision of Article 77 relevant to the rights of the coastal State (which
is essentially identical to that of the 1958 Convention), as mentioned
above, the concept of the continental shelf cannot have escaped change asa
result of the fading-away of the geomorphological notion of natural pro-
longation. This notion may be said to have remained in the case where the
(geomorphological) continental shelf or slope extends farther than 200
miles, yet it must be said that the concept of the continental shelf, which
had been sustained by scholarly views and the imperious necessities of the
1950s, has, early in the 1980s, changed.

CHAPTER V. IMPACT OF THE CONCEPT OF THE EXCLUSIVE ECONOMIC
ZONE ON THE CONCEPT OF THE CONTINENTAL SHELF

108. The present case has been presented both in the Special Agreement
and throughout the pleadings and arguments of the Parties as a case
concerning the principles and methods applicable to delimitation of the
continental shelf. However, in view of the fact that the concept of the
exclusive economic zone has rapidly been accepted in the realm of inter-
national law, one cannot avoid the question whether this case should not
also have been regarded as involving the lateral delimitation of the Exclu-

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sive Economic Zone appertaining to Tunisia and the Exclusive Economic
Zone appertaining to Libya. The question as to whether the sea-bed, at
least within 200 miles of the coast, has been incorporated in the régime of
the Exclusive Economic Zone or whether it should still come under the
separate régime of the Continental Shelf in parallel with the Exclusive
Economic Zone was far more essential than generally thought for making
any judgment on the issues presented for the Court’s consideration. J must
add that the Exclusive Economic Zone cannot be a concept to which
historic rights and titles claimed on the basis of longstanding fisheries are
nearly related, as suggested in the Judgment (para. 100).

Section I. The New Concept of the Exclusive Economic Zone

1. Emergence of the concept

109. No provision concerning an idea similar to that of the Exclusive
Economic Zone is found in any of the 1958 Conventions on the Law of the
Sea, although the idea of the epicontinental sea had been promoted, mainly
by some Latin American countries, in the post-war period. During the
First and Second United Nations Conferences on the Law of the Sea, in
1958 and 1960 respectively, the United States was ready to forsake the
fishery interests if the free navigation of warships in offshore areas of other
coastal States could be guaranteed. Thus a package-deal was suggested by
the United States whereby the 12-mile fishery zone would be traded for a
narrower territorial sea. This idea did not bear fruit.in those conferences.
But the determination of the United States to maintain a narrower terri-
torial sea limit for security and military considerations remained un-
changed, and the question was pursued in order to discover some way of
forestalling the general movement towards a 12-mile territorial sea. How-
ever, it became apparent in the latter half of the 1960s that it was already
impossible to reverse the trend towards the extension of the territorial sea
and persuade the developing nations to withdraw their unilateral legisla-
tion establishing a 12-mile territorial limit. Finding it imperative to pre-
serve free navigation and overflight in certain critical areas, the United
States had to seek some compromise solutions.

110. In announcing its maritime policy, the United States made it clear
in 1970 that, while recognizing the 12-mile territorial sea, it wished to
secure free navigation for warships and overflight for military aircraft in
certain places. In order to achieve this objective, some compensation
would have to be offered to the developing nations. Ten years before, when
the six-mile territorial sea had been at issue, the set-off had been the
recognition of a 12-mile fishery zone, and in 1970 it had to be something
more. Thus the United States offered to some increasingly disgruntled
developing nations the concept of preferential fishing rights beyond the
12-mile territorial sea. In other words, preferential fishing rights of coastal
States were offered at the expense of existing fishing rights of major
distant-water fishing nations, in order to gain freedom of passage for

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warships and military aircraft through and above certain straits. At the
1971 session, the United States presented its idea to the United Nations
Sea-bed Committee in the form of a three-articled draft convention (A/
AC.138/SC.IT/L.4) which, after accepting the 12-mile territorial sea as a
fait accompli, attempted to retrieve the strategic situation with the scheme
outlined above. Yet to some developing nations the United States attempts
appeared to be designed to lure the largest catch with the smallest bait.

111. For the developing countries the 12-mile territorial sea had been a
premise, not something to be granted as a compensation. Hence the United
States claim to free passage through straits as if they were high seas
appeared to them a violation of their sovereignty. Furthermore, exclusive
fishing beyond the territorial sea had been considered by the developing
nations to be an acquired right. They simply wished to institutionalize the
régime of a fishery zone which would extend as far from the coast as
possible, and they were confident that their wishes would eventually be
realized. They were accordingly not willing to wait for the materialization
of the somewhat ambiguous preferential fishing rights promised by the
United States draft. From their point of view, the recognition of the
12-mile territorial sea was but the endorsement of a customary rule of law,
so that its recognition should be unconditional. Moreover, they considered
the fishing resources to be found in their adjacent seas as belonging to them
inherently and not as something that could be bargained for. It is against
this background that the concept of the economic zone came into
being.

112. The Exclusive Economic Zone concept was introduced by Kenya
at the forum of the Asian-African Legal Consultative Committee
(AALCC) held at Lagos in January 1972. A 200-mile limit was suggested,
where “fishery and pollution control would be within the exclusive juris-
diction of the coastal State” (AALCC Report, 1972, p. 157). In fact this was
but the start of the concept of the exclusive economic zone, for at that stage
the question of the exploitation of the mineral resources of the sea-bed
seemed to play no role in the thinking of Kenya. On the other hand, two
conferences which were held only some months after, in the Carribbean
region and Africa respectively, played a decisive role in setting up a more
comprehensive concept. The specialized conference of the Caribbean
countries on problems of the sea, held at Santo Domingo, the Dominican
Republic, in June 1972, adopted the Santo Domingo Declaration, which
put forward the concept of the 200-mile patrimonial sea where the coastal
State would have sovereign rights over the renewable and non-renewable
resources in the waters, the sea-bed and the subsoil. This Declaration also
suggested a concept of the continental shelf which was more or less similar
to that adopted in the 1958 Convention on the subject but it added that in
the part of the continental shelf covered by the patrimonial sea the legal
régime of the latter should apply. The African States Regional Seminar on

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the Law of the Sea, held at Yaoundé, Cameroon, also in June 1972,
adopted a general report in which it was suggested that the African States
should have, in an economic zone, exclusive jurisdiction for control,
regulation and national exploitation of the living resources. With regard
to fishery resources, such economic zone was understood as including
“at least” the continental shelf and, with regard to the continental shelf and
the sea-bed, the economic zone was to embody all economic resources
comprising both living and non-living resources, the latter including oil,
natural gas and other mineral riches.

113. Although both documents adopted by the Santo Domingo Con-
ference or the Yaoundé Seminar referred not only to living resources but
also to mineral resources as being covered by the régime of the patrimonial
sea of the economic zone, it is not easy to determine the real intention
behind these documents regarding the status of the continental shelf or of
the mineral resources of the sea-bed in that connection, yet there was
apparently no positive intention in either Conference to amalgamate the
concept of the continental shelf with that of either of the two new insti-
tutions proposed. It was not at all clear how the régimes of the continental
shelf on the one hand, and the patrimonial sea or economic zone on the
other, would co-exist. But, however that may be, the discussions in the
Sea-bed Committee in 1972 and 1973 were dominated by the concepts
advanced at these two regional meetings. Kenya proceeded formally to
submit the 200-mile economic zone proposal to the Sea-bed Committee in
the summer of 1972. While freedom of navigation was still to be guaran-
teed, coastal States were to

“have exclusive jurisdiction for the purpose of control, regulation and
exploitation of both living and non-living resources of the Zone and
their preservation, and for the purpose of prevention and control of
pollution” (A/AC.138/SC.II/L.10, Art. IT).

This proposal continues to state :

“The exercise of jurisdiction over the Zone shall encompass all the
resources of the area, living and non-living, either on the water surface
or within the water column, or on the soil or subsoil of the sea-bed and
ocean floor below.” (/bid, Art. IV.)

Within two years Kenya’s proposal had attracted many co-sponsors, par-
ticularly in Africa and Asia.

114. In parallel, some developed States, while conceding that the coastal
States should have some jurisdiction with respect to the utilization, con-
servation and management of the living resources of the sea in areas
adjacent to their coasts, were more interested in having the utilization of

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fishery resources in such areas maximized for the benefit of the interna-
tional community, or at least in the interest of geographically disadvan-
taged States. It is important to note that these developed States then took
the concept of the continental shelf as undisturbed, and understood grosso
modo that the areas it was proposed to draw into the Exclusive Economic
Zone would be affected solely in respect of fishing. Thus Canada spoke of
delegating powers to conserve and manage fishery resources within the
proposed zone to coastal States as custodians of the international com-
munity, while Australia and New Zealand had in 1972 submitted a work-
ing paper recognizing the exclusive jurisdiction of the coastal State over
the living resources of the superjacent waters of the continental shelf
(A/AC.138/SC.II/L.11). The responsibility of the coastal State to ensure
proper management and utilization of the living resources was here spelled
out for the first time.

115. It was for the coastal State under this proposal to determine the
allowable catch of any particular species and to allocate to itself that
portion of the allowable catch, up to 100 per cent, that it could harvest.
However, where the coastal State was unable to take 100 per cent of the
allowable catch of a species, it had to allow the entry of foreign fishing
vessels with a view to maintaining the maximum possible food supply. The
Kenyan proposal was re-drafted in 1973 as “Draft Articles on the Exclu-
sive Economic Zone”, sponsored by 14 African States (Algeria, Cameroon,
Ghana, Ivory Coast, Kenya, Liberia, Madagascar, Mauritius, Senegal,
Sierra Leone, Somalia, Sudan, Tunisia and United Republic of Tanzania)
(A/AC.138/SC.II/L.40). In parallel, Kenya, jointly with Canada, India
and Sri Lanka, also presented a proposal on fisheries in which the concept
of the exclusive fishery zone was suggested (A/AC.138/SC_II/L.38). In
these two proposals it was specifically provided that jurisdiction and
control over all fishing activities within the exclusive economic zone would
lie with the coastal State, which would also decide any disagreement over
its limits or the terms and conditions for fishing. However, the imposition
on the coastal State of responsibilities for conservation and management
would distinguish the exclusive economic zone from the territorial sea.

116. Alongside the principally African proposals for an exclusive eco-
nomic zone, various Latin American States continued in 1973, pursuant
to the year-old Santo Domingo Declaration, to promote their concepts of
the patrimonial, epicontinental or expanded territorial sea. However, in
the course of the deliberations of the Sea-bed Committee in 1973 and
UNCLOS III in 1974, these concepts of the patrimonial sea or the epi-
continental sea gradually merged into or were supplanted by the concept of
the exclusive economic zone initiated by Kenya.

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2. Concept of the exclusive economic zone as suggested in the negotiating
texts of UNCLOS III

117. During the preparation of the negotiating text in UNCLOS III
from 1975 to 1980, the suggested 200-mile limit for the Exclusive Economic
Zone remained constant. The relevant provision in the ISNT (Art. 46) did
not undergo any change throughout the RSNT (Art. 45), and the ISNT
(Art. 57) or its revisions. The draft convention on the Law of the Sea of
1981 has the same provision, except for a very minor drafting change. It
reads :

“Article 57. Breadth of the Exclusive Economic Zone

The exclusive economic zone shall not extend beyond 200 nautical
miles from the baselines from which the breadth of the territorial sea is
measured.”

It is to be noted that the 200-mile limit for this zone had never been openly
challenged since Kenya suggested the concept early in 1972. No other
suggestion for the seaward extent of this zone has ever been presented to
the Sea-bed Committee or to UNCLOS HI. Unlike the case of the con-
tinental shelf, there is no trace of the criteria of contiguity or natural
prolongation in the concept of the exclusive economic zone. Just like the
territorial sea or the contiguous zone, the extent of the exclusive economic
zone is to be measured simply by distance from the baseline off the coast. It
is very important to note that this differs greatly from the original concept
of the continental shelf.

118. On the other hand, while the basic concept of the continental shelf
had been firmly established without leaving any room for doubt, the basic
concept of the exclusive economic zone is not quite unequivocal. In order
to avoid any controversies over the basic character of that zone, the ICNT
introduced a novel provision to indicate that its régime would be sui generis
as established by the convention itself. This provision is retained in the
draft convention, rendering meaningless the argument as to whether the
exclusive economic zone still remains part of the high seas :

“Article 55. Specific Legal Régime of the Exclusive Economic Zone

The exclusive economic zone is an area beyond and adjacent to the
territorial sea, subject to the specific legal régime established in this
Part, under which the rights and jurisdiction of the coastal State and
the rights and freedoms of other States are governed by the relevant
provisions of this Convention.”

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119. The provisions relevant to the basic character of the Exclusive
Economic Zone, especially the cardinal provisions on the competence of
the coastal State, had been recast wholesale before the following text
emerged in the ICNT :

“Article 56. Rights, Jurisdiction and Duties of the Coastal
State in the Exclusive Economic Zone

1. In the exclusive economic zone, the coastal State has :

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

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

(i) the establishment and use of artificial islands, installations and
structures ;
(ii) marine scientific research ;
(iii) the preservation of the marine environment ;

(c) other rights and duties provided for in the present Conven-
tion...”

The difference of substance involved in the recasting did not, however,
appear to be crucial, and in fact these provisions had not undergone any
fundamental discussion during their preparation. This text remains in the
draft convention (Art. 56). It is important to note that, while provision is
made for the competence of the coastal State in the exploitation of non-
living as well as living resources, it is control of the latter which receives the
more concrete treatment in the specific provisions. Indeed, it seems evident
that, in line with Kenya’s original proposals, the conservation and proper
utilization of living resources is to be regarded as one of the most essential
features of the régime. The accent was further placed on the coastal State’s
rights and responsibilities in this respect to accommodate the interests of
both landlocked and geographically disadvantaged coastal States to the
Exclusive Economic Zone.

120. It is widely recognized that the concept of the exclusive economic
zone has become irresistible, and the way seems paved towards the insti-
tution of a régime for it under international law, incorporating a uniform
limit of 200 miles. Throughout the history of international law, scarcely
any other major concept has ever stood on the threshold of acceptance
within such a short period. Even apart from the provisions of the 1981 draft
convention, the Court need have few qualms in acknowledging the general

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concept of the exclusive economic zone as having entered the realm of
customary international law. Yet I cannot but point out two problems in
this respect : first, quite apart from the treaty-making process, the sui
generis régime of the exclusive economic zone is going to require much
more careful examination before the rules so far adumbrated may be
viewed as susceptible of adoption into existing international law ;
secondly, the relation of the zone to the continental shelf remains pro-
foundly ambiguous, particularly where such “interface” issues as the
exploitation of ocean-floor minerals are concerned. These ambiguities will
be discussed in the next two sections of this opinion.

Section II. Some Ambiguities in the Concept of the
Exclusive Economic Zone

1. Unclear concept of conservation management

121. This is not the place to make any exhaustive analysis of the concept
of the exclusive economic zone but, in order to understand its status in
existing international law, it will be necessary to touch upon the difficulties
with which it is faced. As suggested before, the coastal State will be placed
under certain obligations for the conservation and optimum utilization of
fishery resources in the Exclusive Economic Zone. This markedly differ-
entiates the régime of the zone from the territorial sea and from the concept
of a fisheries zone which had become institutionalized in the 1960s ; and it
seems apparent from the draft convention on the Law of the Sea that the
obligations for the conservation and promotion of optimum utilization of
the fishery resources to be imposed upon the coastal State in this connec-
tion may confront it with some acute difficulties.

122. First, there is no clarity as to the extent to which responsibility for
conservation entitles, or compels, the coastal State not only to monitor the
allowable catch but also to impose restrictions on seasonal fishing, areas
fished and gear used, not to mention whether it may confine the imposition
of such measures to foreign vessels (Art. 61). Secondly, there is a profound
ambiguity about the importation of foreign capital and equipment for the
purpose of increasing the fishing capacity of the coastal State, as also in
regard to the granting of concessions to foreign enterprises. By such means,
even the least-developed country may take steps towards acquiring the
capacity to harvest the whole of its allowable catch. On this reading, the
notion of the coastal State that “does not have the capacity to harvest”,
assuming that “capacity” implies “potential” — which is normally the
case —, seems pointless (Art. 62, para. 2). Yet its very presence in the text
suggests that some other connotation was implied. Hence uncertainty
prevails.

123. Similar obscurity enshrouds the problem of access to any surplus
of the allowable catch by other States, including especially the landlocked,

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which are given little clue as to which exclusive economic zone they may
seek entry to, what percentage they may expect, and the extent to which the
recognition of traditional fishing and the special needs of developing
countries might affect the result (Art. 62, paras. 2 and 3). Indeed, such is
the complexity and elasticity of the criteria embodied in the draft con-
vention that it is difficult to see how any coastal State, let alone a “least-
developed” one, can be expected to arrive at equitable and technically
correct solutions. Disputes may well occur if other States object to the
coastal State’s determination of the allowable catch and its allocation of
the resources in the Exclusive Economic Zone. It would be extremely
difficult to implement the whole scheme of this process in view of the fact
that the ideas themselves are not all well defined in the draft convention.
What is more, under the text these disputes are exempted from compulsory
settlement.

2. Somewhat unbalanced concept of the enforcement of the laws and regu-
lations of the coastal State

124. The provision of the draft convention on the Law of the Sea
concerning the exercise of jurisdiction in the case of violation of coastal
regulations also leaves many ambiguities (Art. 73). As presented, the mode
of exercise of jurisdiction is no different from that exercised by the coastal
State within its territorial sea and, so far as the development of the natural
resources of the sea is concerned, its competence in the Exclusive Eco-
nomic Zone is equivalent to that it enjoys in the territorial sea. Moreover,
disputes concerning law-enforcement activities in the exercise of sovereign
rights of jurisdiction in the Exclusive Economic Zone are proposed
for exemption from compulsory settlement (Art. 298, para. 1 (b)).
Thus an incident arising out of the enforcement of the fishery regulations
of the coastal State, such as the boarding, inspection and arrest of foreign
vessels, may not be unilaterally submitted by the flag-State of the arrested
vessel to any procedure of compulsory settlement. That the only penalties
the coastal State will be allowed to impose are financial ones does little to
counterbalance this exemption. The same is true of the written-in safe-
guards against undue detention, which remain at the mercy of unilateral
construction of the word “reasonable”, despite the at-first-sight impressive
provisions for judicial remedy.

125. In sum, though the idea of the exclusive economic zone undoubt-
edly seems to have been accepted in international law, the competence of
the coastal State and the mechanism for the functioning of the new régime
do not yet appear to have undergone thorough examination. Until the
draft convention becomes treaty law, it is premature and equivocal to

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speak of the Exclusive Economic Zone as if it had given rise to principles
and rules of international law. It should be pointed out that the pros and
cons of the continental shelf concept, prior to its formulation through the
extensive work of the International Law Commission and the Geneva
Conference of 1958, had been examined by scholars throughout the world,
which greatly contributed to the adoption of the concept in that Confer-
ence, whereas the concept of the exclusive economic zone went through
hardly any scholarly discussion early in the 1970s and required only one or
two years to be formulated at the United Nations Sea-bed Committee.
Yet nobody today doubts the trend towards the Exclusive Economic Zone,
and in this situation the Court was faced with an extremely difficult
problem.

Section III. Relation Between the Continental Shelf and the
Exclusive Economic Zone

1. Parallel régimes of the continental shelf and the exclusive economic
zone

126. The two parallel régimes of the Continental Shelf and the Exclusive
Economic Zone arose from completely different circumstances, and the
histories which the respective régimes have followed are different. If the
régime of the continental shelf, as seen above, was mainly designed for the
exploitation of mineral resources in the subsoil of submarine areas, the real
issue should not necessarily have been related to the status of the bottom of
the sea, but rather to the exercise of the coastal State’s jurisdiction on the
high seas for the purpose of exploring and exploiting those resources. The
exclusive economic zone has essentially been designed to reserve for the
coastal State the right to exercise jurisdiction for the purpose of exploi-
tation of fishery resources. Both these jurisdictions are intended to be
exercised far beyond the traditionally recognized extent of the territorial
seas, in areas where the régime of the high seas used undoubtedly to hold
sway. In this sense, both of these régimes should be considered as dero-
gation from traditional international law. Certainly such derogations can
be justified pari passu with the development of international law. How-
ever, even if the jurisdiction of the coastal State is exercised separately for
the purpose of exploitation of resources — mineral resources on or under
the continental shelf, on the one hand, and living resources within the
exclusive economic zone, on the other — is it feasible to assume that the
area in which such jurisdiction is exercised can or should be different,
depending on what resources are exploited ? Either of the régimes — the
Continental Shelf or the Exclusive Economic Zone — could be claimed to
exist in parallel with the high seas régime, to which the exercise of juris-
diction under either — which at any rate is restrictive — might be regarded
as an exception. Yet if the régimes of the Continental Shelf and Exclusive
Economic Zone co-exist without covering coincident areas, a question may

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arise as to how the jurisdiction of the coastal State can be unambiguously
exercised in the fringes where they fail to overlap. Is it congruous or
conceivable that the same marine/submarine column should be placed
under different national jurisdictions for the same purpose of resource
exploitation, however different the resources may be, and that the same
area of the ocean be consequently policed by two different States ? One is
entitled to enquire whether superimposition of two different boundaries is
tolerable as a matter of international ordre public.

127. In replying to a question I put to both Parties, at the hearing on
9 October 1981, Tunisia and Libya expressed the following views. Tunisia
stated :

“Given that the coastal State, under Article 56 of the draft con-
vention, possesses, in the Exclusive Economic Zone, sovereign rights
for the purpose of exploring and exploiting the natural resources of
the sea-bed and its subsoil, it is difficult to conceive how the limits of
the Exclusive Economic Zone could differ from those of the conti-
nental shelf inside the 200 miles.”

Libya, on the other hand, stated :

“Libya considers that, as between States with opposite or adjacent
coasts, the delimitation of their respective continental shelf areas and
of their economic zones ought not, in the majority of cases, to be
different. Nevertheless, there may be factors relevant to fishing, such
as established fishing practices, which have no relevance to shelf
resources ; and, conversely, there may be factors relevant to shelf
resources — such as geological features controlling the extent of a
natural prolongation — of no relevance to fishing. It therefore follows
that the two boundaries need not necessarily coincide.”

The Parties were thus in apparent disagreement on this point.

2. Exploitation of submarine mineral resources under the different régimes of
the Continental Shelf and Exclusive Economic Zone

128. A further difficulty will arise if the same resources may be
exploited under the two different régimes and each régime is held to apply
to a different area. As previously pointed out, the concept of the exclusive
economic zone had originated in the idea of the fishery zone in the early
1970s. However, by 1973, its expansion to cover the exploitation of mineral
resources had already begun. But in that and the following year, little heed
was paid to the fact that, with regard to mineral resources, the concept of
the Continental Shelf had already been firmly established, and this over-
sight marred the proposals concerning the new zone. The necessity of

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harmonizing the concepts of the Exclusive Economic Zone and the Con-
tinental Shelf, or of clarifying the difference between these two régimes,
virtually went by the board — doubtless because no proposal was made
which focussed a spotlight on the practical consequences of subsuming
mineral resources under the Exclusive Economic Zone.

129. At all events, the sovereign rights to be exercised by the coastal
State for the purpose of exploring and exploiting the mineral resources of
submerged submarine areas have been expressly subsumed under both the
régime of the Continental Shelf and the régime of the Exclusive Economic
Zone. Any concrete issue that may arise concerning the exploitation of
mineral resources within the 200-mile limit will thus, for the time being, be
cloaked in legal ambiguity, for it will not arise bearing the label “Conti-
nental Shelf” or “made in the Exclusive Economic Zone”. The only real-
istic attitude to adopt in the circumstances is to await, and meanwhile to
promote, the harmonization of the two régimes. And it is common sense
that, to that end, what is still malleable in one should be aligned on what
has taken firm shape in the other, rather than the reverse. Now the nature
and régime of the Continental Shelf were solidly established in 1958 and
were confirmed by the 1969 Judgment of the Court, and no doubt can
remain as to the competence to be exercised by the coastal State ; moreover
although the outer limit of the area has as yet hardly been established, even
with the abandonment of the depth/exploitability test, it can at least be
said that a 200-mile distance test has found wide acceptance. On the other
hand, the nature of the Exclusive Economic Zone, and its régime, par-
ticularly in regard to the rights and duties of the coastal State, is still
comparatively unclear, but the 200-mile limit has been firmly estab-
lished.

130. It has therefore fittingly been suggested that the régime of the
Exclusive Economic Zone should be aligned as far as possible on that of
the Continental Shelf. But surely, it will be said, this has been done, for
Article 56 of the draft convention on the Law of the Sea reads, in para-
graph 3 :

“The rights set out in this article [the exclusive economic zone], with
respect to the sea-bed and subsoil shall be exercised in accordance
with Part VI [the Continental Shelf].”

The concrete meaning of this provision is hard to seek, as Part VI of the
text, the chapter on the continental shelf, likewise simply provides for
sovereign rights for the purpose of exploring the submerged areas and
exploiting their resources, but does not specify how the rights set out in
Article 56, 1.e., “sovereign rights for the purpose of exploring and exploit-
ing, conserving and managing [non-living] resources of the sea-bed and
subsoil”, are to be exercised. Was it not, however, the intention of the
authors of the draft convention that Article 56, paragraph 3, should be
interpreted to mean that the régime of the exclusive economic zone will

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incorporate, in principle, the whole régime of the continental shelf ? If that
is indeed the case, and I can see no other interpretation which would not
result in anomaly, then there should be no impediment to aligning what is
still indecisive about the continental shelf concept, namely the question of
the extent of the area involved, upon what is clearly established in the
concept of the exclusive economic zone, namely the extent of the zone. I
draw further consequences from this reasoning below. Suffice it for the
present to say that in my view the question facing the Court could equally
well have concerned the Exclusive Economic Zone as the Continental
Shelf.

CHAPTER VI. TRENDS IN THE DELIMITATION OF THE CONTINENTAL
SHELF/EXCLUSIVE ECONOMIC ZONE AT THE UNITED NATIONS
THIRD CONFERENCE ON THE LAW OF THE SEA

Section I. Various Proposals for Delimitation

131. As delimitation was the subject of the present case, the Court
should in my opinion have devoted considerably more attention to the way
the views of States on this specific topic have been evolving — a topic
strangely neglected by the Parties themselves. The main point in this
connection is that, in most of the relevant proposals presented at the
Sea-bed Committee and UNCLOS III, the delimitation of the Exclusive
Economic Zone and the Continental Shelf were dealt with together or in
virtually identical terms. This may be demonstrated with the aid of some
quotations :

Australia and Norway (A/AC.138/SC.II/L.36 — 16 July 1973) :

“A. Adjacent or opposite States shall use their best endeavours to
reach agreement on the delimitation between them of their (economic
zones — patrimonial seas) and their sea-bed areas in accordance with
equitable principles.

D. Subject to principle[s] A. . . above, and unless the drawing up of
another boundary is justified by special circumstances, the boundary
shall be an equidistant line in the case of adjacent coasts and a median
line in the case of opposite coasts.”

Japan (A/CONF.62/C.2/L.31/Rev.1 — 16 August 1974; Revision of
previous proposal : A/AC.138/SC.II/L.56 — 15 August 1973) :

“3. (a) Where the coasts of two or more States are adjacent or
opposite to each other, the delimitation of the boundary of the con-

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tinental shelf (the coastal sea-bed area) appertaining to such States
shall be determined by agreement between them, taking into account
the principle of equidistance.”

China (A/AC.138/SC.IT/L.34 — 16 July 1973) :
“II. Exclusive Economic Zone or Exclusive Fishery Zone

(8) The delimitation of boundaries between the economic zones
of coastal States adjacent or opposite to each other shall be jointly
determined through consultations on an equal footing. Coastal States
adjacent or opposite to each other shall, on the basis of safeguarding
and respecting the sovereignty of each other, conduct necessary con-
sultations to work out reasonable solutions for the exploitation,
regulation and other matters relating to the natural resources in
the contiguous parts of their economic zones.

ITI. Continental Shelf

(5) States adjacent or opposite to each other, the continental
shelves of each connected together, shall jointly determine the delim-
itation of the limits of jurisdiction of the continental shelves through
consultations on an equal footing.

(6) States adjacent or opposite each other, the continental shelves
of which connect together, shall, on the basis of safeguarding and
respecting the sovereignty of each other, conduct necessary consul-
tations to work out reasonable solutions for the exploitation, regula-
tion and other matters relating to the natural resources in their con-
tiguous parts of their continental shelves.”

Turkey (A/CONF.62/C.2/L.23 — 26 July 1974):

“1. Where the coasts of two or more States are adjacent and/or
opposite, the continental shelf areas appertaining to each State shall
be determined by agreement among them, in accordance with equi-
table principles.

2. In the course of negotiations, the States shall take into account
all the relevant factors, including, inter alia, the geomorphological and
geological structure of the shelf up to the outer limit of the continental
margin, and special circumstances such as the general configuration
of the respective coasts, the existence of islands, islets or rocks of one
State on the continental shelf of the other.”

Turkey (A/CONF.62/C.2/L.34 — 1 August 1974) :

“1. Where the coasts of two or more States are adjacent or opposite
to each other, the delimitation of the respective economic zones shall
be determined by agreement among them in accordance with equi-

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CONTINENTAL SHELF (DISS. OP. ODA)

table principles, taking into account all the relevant factors including,
inter alia, the geomorphological and geological structure of the sea-
bed area involved and special circumstances such as the general
configuration of the respective coasts and the existence of islands,
islets or rocks within the area.”

132. Some other proposals, such as those submitted by the Netherlands,
Romania, Kenya and Tunisia jointly and France, suggested a uniform
formula for the delimitation of both the continental shelf and the exclusive
economic zone :

The Netherlands (A/CONF.62/C.2/L.14 — 19 July 1974):

“1. Where the determination of sea areas under Articles . . . (ter-
ritorial sea, continental shelf, economic zone) by adjacent or opposite
States up to the maximum limit would result in overlapping areas, the
marine boundaries between those States shall be determined by
agreement between them, in accordance with equitable principles,
taking into account all relevant circumstances.”

Romania (A/CONF.62/C.2/L.18 — 23 July 1974) :

222

“Article 1. The delimitation of all the marine or ocean space
between two neighbouring States shall be effected by agreement
between them in accordance with equitable principles, taking into
account all the circumstances affecting the marine or ocean area
concerned and all relevant geographical, geological or other fac-
tors.

Article 2. 1. The delimitation of any marine or ocean space shall,
in principle, be effected between the coasts proper of the neighbour-
ing States, using as a basis the relevant points on the coasts or on the
applicable baselines, so that the areas situated off the sea frontage of
each State are attributed thereto.

2. Islands which are situated in the maritime zones to be delimited
shall be taken into consideration in the light of their size, their
population or the absence thereof, their situation and their geogra-
phical configuration, as well as other relevant factors.

Article 3. The delimitation of space between two neighbouring
States, whether they be adjacent or opposite, or whether they have
both of these two geographical characteristics simultaneously, shall
be governed by the method or combination of methods which pro-
vides the most equitable solution. For example, neighbouring States
may use, exclusively or jointly, the geographical parallel or the per-
pendicular line from the terminal point of the land or river frontier,
equidistance, or the median line of the points closest to the coasts or
their baselines. The terminal point of a river frontier shall be con-
237 CONTINENTAL SHELF (DISS. OP. ODA)

sidered as the immediate confluence of the river and the sea, irre-
spective of whether the river flows into the sea in the form of an
estuary.”

Kenya and Tunisia (A/CONF.62/C.2/L.28 — 30 July 1974) :

“1. The delimitation of the continental shelf or the exclusive eco-
nomic zone between adjacent and/or opposite States must be done by
agreement between them, in accordance with an equitable dividing
line, the median or equidistance line not being necessarily the only
method of delimitation.

2. For this purpose, special account should be taken of geological
and geomorphological criteria, as well as of all the special circum-
stances, including the existence of islands or islets in the area to be
delimited.”

France (A/ CONF.62/C.2/L.74 — 22 August 1974) :

“The delimitation of the continental shelf or of the economic zone
between adjacent and/or opposite States shall be effected by agree-
ment between them in accordance with an equitable dividing line, the
median or equidistance line not being the only method of delimita-
tion.

2. For this purpose, account shall be taken, inter alia, of the special
nature of certain circumstances, including the existence of islands or
islets situated in the area to be delimited or of such a kind that they
might affect the delimitation to be carried out.”

133. No matter whether the equidistance line was suggested or not,
reference to equitable principles was found indispensable in these pro-
posals and “special circumstances’, “relevant circumstances” or “all the
circumstances” were almost always in point. This was well borne out in

the ensuing discussions.

Section II. Negotiating Texts
1. Existence of two schools of thought

134. During the preparation of the ISNT in 1975, the following provi-
sion for the delimitation of the Exclusive Economic Zone/Continental
Shelf was suggested by the Chairman of the Second Committee :

“Articles 61/70

1. The delimitation of the exclusive economic zone/ the continental
shelf between adjacent or opposite States shall be effected by agree-
ment in accordance with equitable principles, employing, where
appropriate, the median or equidistance line, and taking account of all
the relevant circumstances.” (UNCLOS III, Official Records, Vol. IV,
pp. 162 f.)

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238 CONTINENTAL SHELF (DISS. OP. ODA)

It is to be noted that this text omitted all reference to factors to be taken
into account as relevant circumstances, as suggested in proposals submit-
ted by various delegates in 1973 and 1974. It was nonetheless taken as it
stood for inclusion in the ISNT and RSNT and eventually became
Articles 74/83, paragraph 1, of the ICNT.

135. During the seventh session in 1978, as already noted, seven nego-
tiating groups were set up, the seventh of which was charged with, in
addition to the definition of the outer limit of the continental shelf and
other matters, the problem of the “delimitation of maritime boundaries
between adjacent and opposite States and settlement of disputes”. The
seventh group considered the following two main proposals, based on
different schools of thought :

(i) Informal suggestions by Bahamas, Barbados, Canada, Colombia,
Cyprus, Democratic Yemen, Gambia, Greece, Guyana, Italy, Japan,
Kuwait, Malta, Norway, Spain, Sweden, United Arab Emirates,
United Kingdom and Yugoslavia (joined later by Cape Verde,
Chile, Denmark, Guinea-Bissau, and Portugal) :

“1. The delimitation of the Exclusive Economic Zone/Continental
Shelf between adjacent or opposite States shall be effected by agree-
ment employing, as a general principle, the median or equidistance
line, taking into account any special circumstances where this is
justified.” (NG 7/2.)

Gi) Informal suggestions by Algeria, Bangladesh, Benin, Burundi, Congo,
France, Iraq, Ireland, Ivory Coast, Kenya, Liberia, Libyan Arab
Jamahiriya, Madagascar, Maldives, Mali, Mauritania, Morocco, Nica-
ragua, Nigeria, Pakistan, Papua New Guinea, Poland, Romania,
Senegal, Syrian Arab Republic, Somalian Democratic Republic, Tur-
key, Venezuela and Viet Nam:

“1. The delimitation of the Exclusive Economic Zone (or Conti-
nental Shelf) between adjacent or/and opposite States shall be
effected by agreement, in accordance with equitable principles taking
into account all relevant circumstances and employing any methods,
where appropriate, to lead to an equitable solution.” (NG 7/10.)

136. Mr. E. J. Manner, the chairman of the group, suggested the fol-
lowing formula by way of “informal suggestions” :

“Articles 74/83

1. The delimitation of the Exclusive Economic Zone/Continental
Shelf between opposite or adjacent States shall be effected by agree-
ment with a view of reaching a solution based upon equitable prin-
ciples, taking account of all the relevant circumstances, and employ-

224
239 CONTINENTAL SHELF (DISS. OP. ODA)

ing, where local conditions do not make it unjustified, the principle of
equidistance.” (NG 7/11.)

In his report of 17 May 1978 on the work of the group, he stated as
follows :

“Like before, the positions of the delegations differed markedly
between those in support of the equidistance solution and those
favouring delimitation in accordance with equitable principles ... No
compromise on this point did materialize during the discussions held,
although one may note, that there appears to be general agreement as
regards two of the various elements of delimitation : first, consensus
seems to prevail to the effect that any measure of delimitation should
be effected by agreement, and second, all the proposals presented
refer to relevant or special circumstances as factors to be taken into
account in the process of delimitation. As a whole, however, no
approach or formulation received such widespread and substantial
support that would offer a substantially improved prospect of a
consensus in the Plenary. On the other hand, the discussions clearly
indicated that consensus could not, either, be reached upon the
present formulation in the ICNT.” (NG 7/21.)

137. Negotiations were continued in the resumed seventh session. With-
out coming to any positive conclusion, the chairman of the group stated on
6 September 1978 :

“Similarly, reference might be made to the fact that, in essence, we
have been considering the same set of criteria to be applied both to the
economic zone and the continental shelf. One could, perhaps, also
examine whether some kind of distinction in this respect, as related to
the applicable criteria of delimitation, offered elements conducive to
our search for a comparison.

It may also be worthwhile to notice that if no specific criteria are
agreed upon, a more simple approach might be explored. As we all
may recall, there appeared to be, in Geneva, general agreement in
respect of two of the various elements of delimitation : first, consen-
sus seemed to prevail to the effect that any measure of delimitation
should be effected by agreement and second, all the proposals pre-
sented referred to relevant or special circumstances to be taken into
account in the process of delimitation.

To transform this into treaty language would amount to a provision
simply providing that the delimitation of the exclusive economic zone
and the continental shelf between opposite or adjacent States shall be
effected by agreement taking account of all the relevant circum-

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CONTINENTAL SHELF (DISS. OP. ODA)

stances. If desired, a general reference to the rules of international law
might also be included without, however, elaborating their contents in
any further measure.” (NG 7/22.)

His report, issued on 14 September 1978 (NG 7/24), contained a passage
on the delimitation problem which was repeated and enlarged upon in his
opening statement at the group’s meeting of the eighth session, made on
26 March 1979. I quote from the latter : |

226

“Delimitation Criteria

The basic positions relating to the criteria of delimitation are still
maintained by the supporters of the equidistance line on the one hand
and the advocates of equitable principles, on the other. None of the
proposals presented by the members of these two groups, seems to
offer a basis for a consensus. The same would also seem to apply to
any other formula which may be considered to give preference to one
or another of the proposed delimitation criteria.

On the other hand, there seems to prevail general understanding,
that the four main elements reflected in the various proposals should
be included in the definition, namely (1) that any measure of delimi-
tation should be effected by agreement ; (2) that all relevant or special
circumstances should be taken into account ; that there should be (3)
a reference to equitable principles ; as well as (4) a reference to the
equidistance line.

As to the re-drafting of paragraph! of Articles 74/83,it has been
pointed out that the crucial problem is, how to avoid any classification
or hierarchy of the elements concerned which could make the defi-
nition unacceptable to some delegations. In this regard the following
points of view would seem to have relevance.

The provision that the delimitation should be effected by agree-
ment, is as such, a procedural rule, but it also speaks out the principle
that every (new) delimitation must be an agreed delimitation, and
consequently, that neither the equidistance line, nor any other line not
effected by agreement (or by other settlement), can be substituted for
an agreed (or otherwise settled) delimitation. Because of its ‘leading
role’ the provision concerning agreement might be mentioned first in
the definition, but this does not mean that the other elements were of
less importance.

The three other elements emerge as material criteria which are to
form the basis for the agreement. The special or relevant circum-
stances are, of course, of various kind and importance. It goes without
saying that local conditions and circumstances are usually relevant to
the conclusion of delimitation as well as other territorial agreements.
Mentioned as one of the three ‘material’ delimitation criteria, special
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CONTINENTAL SHELF (DISS. OP. ODA)

circumstances should, however, be considered in relation to the two
others, partly as an independent criterion and partly as an element
having an effect upon the application of the other criteria. In certain
cases, special geographic or historical circumstances may be given
preference over the employment of the equidistance line. In some
others, again, special circumstances may serve as a basis for the
estimation of equitable principles. For these reasons special or rele-
vant circumstances should be included in the definition together with
the two other criteria, but without priority over them.

One of the most difficult problems the Negotiating Group has to
solve refers to the relation between equitable principles and the
equidistance line (some prefer to speak of a method, others of a
principle of equidistance) as elements of the definition of delimitation
criteria. Although it is generally admitted that delimitation agree-
ments should be concluded with a view of reaching an equitable
solution, and often the employment of the median or equidistance line
appears in accordance with equitable principles, the question of
‘preference’ has so far, proved too hard to be solved.” (NG 7/26.)

138. In the course of the meeting of the negotiating group, at the eighth
session, Mexico and Peru submitted an informal proposal, the revised form
of which read as follows :

“Articles 74 and 83

1. The delimitation of the exclusive economic zone (or of the con-
tinental shelf) between States with opposite or adjacent coasts shall be
effected by agreement between the parties concerned, taking into
account [concurrently] all relevant criteria and circumstances, and
applying either the equidistance or such other means as are appro-
priate in each specific case, in order to arrive at a solution [that is
satisfactory to the parties] in accordance with equitable principles.”
(NG 7/36/Rev.1.)

On 24 April 1979 the chairman of the seventh negotiating group reported
on the work of the group to the Second Committee. Summing up a total of
41 meetings with 39 working papers distributed in the course of the group’s
discussions, he said :

227

“Articles 74/83 (1)

From the outset the negotiations were characterized by the oppos-
ing positions of delegations supporting the equidistance rule and
those specifically emphasizing delimitation in accordance with equi-
table principles . . . [Alt the beginning of the present session ...I.
expressed the view that the necessary compromise might be within
reach if the Group could agree upon a ‘neutral’ formula avoiding any
classification or hierarchy of the elements concerned.
242 CONTINENTAL SHELF (DISS. OP. ODA)

During the present session a number of compromise proposals were
made . . . [However] the Group did not succeed in reaching agreement
on any of the texts before it . . . [PJersonally I doubt, whether, in view
of our lengthy deliberations and taking into account the controversies
still prevailing, the Conference may ever be in a position to produce
a provision which would offer a precise and definite answer to the
question of delimitation criteria.” (NG 7/39.)

In the light of the various suggestions presented, the group chairman then
offered his own compromise text :

“The delimitation of the exclusive economic zone (or of the con-
tinental shelf) between States with opposite or adjacent coasts shall be
effected by agreement between the parties concerned, taking into
account all relevant criteria and special circumstances in order to
arrive at a solution in accordance with equitable principles, applying
the equidistance rule or such other means as are appropriate in each
specific case.” (Ibid.)

He concluded, however, by pointing out that none of the proposed
amendments to the ICNT relating to the delimitation of the Exclusive
Economic Zone or the continental shelf had either secured a consensus
within the group or seemed to offer any substantially improved prospects
of a consensus in the Plenary. Thus he did not find himself in a position to
suggest any modification or revision of the relevant provisions of the
ICNT, and the ICNT/Revision 1 retained the same provisions as the
ICNT.

139. On 20 August 1979, at the resumed eighth session, the group
chairman replaced his personal proposal, as quoted above, with the fol-
lowing, said to reflect the state of the negotiations :

“The delimitation of the exclusive economic zone (the continental
shelf) between States with opposite or adjacent coasts shall be effected
by agreement in accordance with equitable principles, taking into
account the equality of States in their geographical relation to the
areas to be delimited, and employing, consistent with the above cri-
teria and subject to the special circumstances in any particular case,
the rule of equidistance.” (NG 7/44.)

The chairman of the seventh negotiating group submitted to the Plenary on
24 August 1979 the group report, which read in part :

“Articles 74/83 (1)

As before, the discussion on delimitation criteria were character-
ized by the opposing position of, on the one hand, delegations advo-
cating the equidistance rule and, on the other hand, those specifically
emphasizing delimitation in accordance with equitable principles. In

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CONTINENTAL SHELF (DISS. OP. ODA)

the main, also the arguments of the two sides remained as before,
referring to the concepts and expressions to be used in the provisions
concerned. At the Chairman’s meetings with the supporters of the two
differing opinions, it became apparent, that a consensus may not be
based upon a ‘non-hierarchical’ formulation only listing the basic
elements of delimitation ; an alternative, which earlier had seemed to
have some support. Similarly, a concise formulation providing merely
that the delimitation would be ‘effected by agreement in accordance
with international law’ did not receive any particular sympathy from
either side . . . [C]ertain new elements of delimitation, notably that of
the equality of States, were introduced in private consultations.”

140. The negotiating group met only twice during the ninth session in
1980, but the chairman then made the following suggestion :

“Articles 74/83

1. The delimitation of the exclusive economic zone/ the continental
shelf between States with opposite or adjacent coasts shall be effected
by agreement in conformity with international law. Such an agree-
ment shall be in accordance with equitable principles, employing the
median or equidistance line, where appropriate, and taking account of
all circumstances prevailing in the areas concerned.” (UNCLOS III,
Official Records, Vol. XIU, pp. 77 f.)

In suggesting this text, the chairman summed up the group’s discussions,
as follows :

229

“Delimitation Criteria

3.... At the outset of the consultations with the Chairman, the
members of both interest groups were asked to indicate whether they
would be prepared to use as a basis of further discussions the Chair’s
informal proposal on delimitation criteria issued at the end of the
eighth session in document NG7/44 and containing as a new element
of delimitation a reference to the equality of States in their geogra-
phical relation to the areas to be delimited. However, such a reference
was found rather ambiguous by several delegations on both sides and
even otherwise it proved apparent that the text in NG7/44 did not
enjoy support broad enough to offer improved prospects of a con-
sensus ...

7....[T]he following is offered as the Chairman’s final conclusions
and suggestions relating to the work of negotiating group 7.

(a) During the negotiations no agreement could be reached on any
244 CONTINENTAL SHELF (DISS. OP. ODA)

proposed text concerning the criteria to be applied in the delimitation
of the exclusive economic zone or the continental shelf. This conclu-
sion also applies to the respective formulation of Articles 74 and 83 in
the revised informal composite negotiating text. While the provision
in the negotiating text has been supported by, or at least indicated to
prove satisfactory to, a number of States, it has been described as
quite unacceptable by the members of the group supporting the
median line approach. Because of this firm refusal by a notable part of
the members of the group to adopt the present formulation of para-
graph 1 of Articles 74 and 83 it is clear that it cannot be considered a
text which could provide consensus on the issue.

(b) Owing to the obvious difficulties in agreeing upon a more
detailed definition, it has been indicated by some delegations that the
final solution might be found in a concise formulation merely iden-
tifying the two most fundamental elements of delimitation, that is,
that it shall be effected by an agreement and based on international
law. Such a provision might read as follows : ‘The delimitation of the
exclusive economic zone/ continental shelf between States with oppo-
site or adjacent coasts shall be effected by agreement in accordance
with international law.’ Other delegations, however, have considered
that such a short formula would not provide adequate guidance for
the process of delimitation ...

(c)... :

... [The Chairman] felt it to be his duty to make one further effort
to open the way towards an acceptable solution. Accordingly, the
Chairman prepared a revised text, as contained in the annex to this
report. Even if the revised text did not as a whole meet the position of
several delegations it might, however, prove useful to be taken into
account in the completion of the final consensus package of the
Conference.” (Ibid.)

The collegium agreed that this text suggested by the chairman of the
seventh negotiating group should be incorporated in the second revision,
thus becoming a provision of the ICNT/Revision 2.

141. At the plenary meeting on 28 July 1980, during the resumed ninth
session, the delegate of Ireland introduced a letter dated 30 May 1980
addressed to the President of UNCLOS III by the countries sponsoring
NG 7/10, in which it was stated that they could not accept the formulation
of Articles 74/83 (1) of the ICNT/Revision 2 because —

“The new formulations as they appear in Articles 74 (1) and 83 (1)
of the Informal Composite Negotiating Text/Revision 2 “did not
emerge from negotiations themselves’ nor did those formulations
receive ‘the widespread and substantial support’ required in plenary

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245 CONTINENTAL SHELF (DISS. OP. ODA)

to offer a substantially improved prospect of consensus.” (A/
CONF.62/SR.130, p. 18.)

The countries who signed this letter considered that “the new formulations
will not be helpful for future negotiation”. It is reported that the seventh
negotiating group has not met since the resumed ninth session of
UNCLOS III in the summer of 1980 and that no action has been taken by
the chairman of the group. At the general committee meeting on 28 August
1980, on the question of delimitation of maritime zones, the President of
UNCLOS III stated that —

“A satisfactory solution ... had not been found but it was gratify-
ing to note that the two main interest groups had shown a genuine
willingness to arrive at a mutually acceptable compromised text.”
(A/CONF.62/Bur/SR.57, p. 2.)

The provisions included in the ICNT/Revision 2 remain unchanged in the
draft convention (Informal Text) that is, the ICNT/Revision 3 of 22 Sep-
tember 1980.

142. Articles 74/83, paragraph 1, in the wording quoted above, re-
mained part of the text until August 1981. On 28 August 1981, the very last
day of the resumed tenth session, the President of UNCLOS III (President
T. B. Koh, who had succeeded the late Mr. Amerasinghe in the previous
session) introduced a document entitled “Proposal on Delimitation” :

“During his consultations, he had gained the impression that the
proposal enjoyed widespread and substantial support in the two most
interested groups of delegations, and in the Conference as a whole.”
(A/CONF.62/SR.154, p. 2.)

According to the introductory note to the draft convention :

“The members of the collegium concluded, on the basis of consid-
eration of A/CONF.62/ WP. 11 in the Plenary at the 154th meeting on
28 August 1981, that the criterion in A/CONF.62/62 had been satis-
fied.” (A/CONF.62/L.78.)

The groups of sponsors of documents NG 7/2 and NG 7/10 both stated
through their respective representatives that the suggestion of the Presi-
dent would be agreeable to them, but understood that the United States,
China, United Arab Emirates, Libya, Portugal, Venezuela, Qatar, Iran,
Oman, Kuwait, Egypt, Bahrein and Israel had expressed the view that time
should be given for examination of the President’s proposal. However, as a

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246 CONTINENTAL SHELF (DISS. OP. ODA)

result of the meeting of the collegium, the text proposed by the President
was included in the draft convention, again on the very same day, and
reads as follows :

“Articles 74/83. Delimitation of the Exclusive Economic Zone/Con-
tinental Shelf Between States with Opposite or Adjacent Coasts

1. The delimitation of the exclusive economic zone/ the continental
shelf between States with opposite or adjacent coasts shall be effected
by agreement on the basis of international law as referred to in
Article 38 of the Statute of the International Court of Justice, in order
to achieve an equitable solution.”

2. Significance of Articles 74/83 of the draft convention

143. Setting aside the question of the standing of a text suggested by the
President of UNCLOS ITI only one day before the close and incorporated
on the very last day of the tenth session, it is difficult to foresee the
potential nature and limits of its effects. What is clear from a survey of the
drafting history of this specific provision is that the efforts of the nego-
tiating group centred on an attempt to discover a formula that would be
satisfactory to delegates with not only different but sometimes contradic-
tory views on the delimitation of the continental shelf and of the exclusive
economic zone. Even in 1978 there was already a clear opposition between
the “equidistance” and the “equitable principles” schools of thought. It
could be pointed out that Articles 74/83 of the draft convention on the
Law of the Sea form a catchall provision that ought to satisfy both, and that
is indeed its merit. Given, however, the difficulty of deriving any positive
meaning from these provisions, it would seem that the satisfaction must be
essentially of a negative kind, i.e., pleasure that the opposing school has not
been expressly vindicated.

144. Firstly, the suggestion that the delimitation of the continental shelf
should be effected by agreement simply represents the procedural aspect of
the problem, and indicates that any unilateral claim for the delimitation of
the continental shelf would not be regarded as valid under international
law. This idea is not unlike Article 6 of the 1958 Convention, and had
already received the support of the two opposing schools of thought in
1978. However, its effect is merely to confirm that a general rule for the
conduct of inter-State relations is applicable to the subject of delimitation.
Secondly, the simple reference to “the basis of international law as referred
to in Article 38 of the Statute of the International Court of Justice” does
not furnish any practical assistance towards a solution, in the absence of
any more specific designation of which principles and rules from out the
entire panoply of customary, general, positive and conventional law are of
particular significance. Thirdly, the idea of an equitable solution, although
not specifically mentioned in Article 6 of the 1958 Convention, lay at the
basis of that provision, but the draft convention does not supply any

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247 CONTINENTAL SHELF (DISS. OP. ODA)

answer to the question of what the equitable solution is, and no method for
reaching such an equitable solution is specified.

145. Despite the resultant vagueness, there is one firm conclusion which
has already been hinted at above, but which now stands fully confirmed by
the identity of Articles 74 and 83, an identity which even the more complex
earlier formulae strove always to maintain. This conclusion is that the
principles and rules of international law applicable to the delimitation of
the continental shelf will not be different from those applicable to the
delimitation of the exclusive economic zone. This of course works both
ways, in that one must examine whether principles said previously to apply
to delimitation of the continental shelf are adaptable to delimitation of the
Exclusive Economic Zone, and also see what features of the Exclusive
Economic Zone concept are instructive in relation to delimitation of the
shelf.

CHAPTER VII. PRINCIPLES AND RULES FOR THE DELIMITATION OF THE
CONTINENTAL SHELF/EXCLUSIVE ECONOMIC ZONE

Section I. Introduction

146. To recapitulate, what I hope to have made clear in the foregoing
chapters is as follows :

First, for the purpose of indicating the principles and rules of interna-
tional law applicable to the delimitation of the continental shelf between
Tunisia and Libya, the Court should not have taken the relevant provisions
of the 1981 draft convention on the Law of the Sea at their face value, on
the sole ground that they had been formulated as a result of the consensus
formula, special procedures and “package deal” of UNCLOS III, even
though the Special Agreement had requested it to take account of the
“tendances récentes admises” or “new accepted trends” at that Confer-
ence. The Court should have examined more thoroughly the progress of the
discussions underlying those provisions and considered the trends in the
law of the sea for the past few decades in a much wider perspective.

Secondly, the régime under which the coastal State enjoys sovereign
rights for exploring the continental shelf and exploiting its natural
resources had become firmly established by the late 1960s on account of
the 1958 Convention on the Continental Shelf, but the outer limit of that
area was still left ambiguous. For the delimitation of the continental shelf
between adjacent or opposite States the Court in 1969 indicated the law
applicable in the late 1960s. Since then, while the right of the coastal State
exercisable over the continental shelf has remained constant, the suggested
outer limit has fluctuated. The application to the deep ocean floor of the
concept of the common heritage of mankind, which had been emerging in

233
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the late 1960s, has had a great impact on views about that limit. Despite the
possibility opened up by the exploitability criterion in the 1958 Conven-
tion that the continental shelf might have been expanded indefinitely, this
new concept has been successful in calling a halt to this process. The
precise line at which the halt has been called remains, however, a matter of
controversy. While some landlocked or geographically disadvantaged
States have wished to keep the “common heritage of mankind” area as
wide as possible, some coastal States have pressed for incorporation of the
continental margin and rise, where petroleum resources could be dis-
covered, into the régime of the continental shelf, thus, essentially, leaving
the exploitation of hard mineral resources to the common heritage of
mankind. The suggested provision concerning the outer limit of the con-
tinental shelf which has emerged at the latest stage of UNCLOS III seems
to have been simply a political compromise, and can hardly be regarded as
reflecting customary international law. The matter will require further
elaboration or negotiation among States, as well as some repeated practice.
Yet noteworthy as of great importance is the change in the concept of the
continental shelf arising out of the universal introduction of the 200-mile
distance, which may certainly override the traditional concept of “con-
tinuity” or “contiguity” that has been supplemented, in particular through
the 1969 Judgment, by the notion of natural prolongation.

Thirdly, the longstanding practice of sedentary fisheries was frequently
relied on during the proceedings for the purpose of confirming the appur-
tenance of certain areas to the continental shelf. Apart from the question
whether sedentary fisheries as such relate to resources of the continental
Shelf, not only scholarly views and past practice but also the drafting of the
1958 Geneva Convention on the Law of the Sea afford no grounds for any
assertion that the past practice of sedentary fisheries could found a legal
claim to the continental shelf, the object of the rights to which has been
defined from the outset in terms of the exploitation of mineral resources.
Admittedly, the longstanding practice of sedentary fisheries can form a
basis for a title to historic waters. Such title, which may override a claim to
the continental shelf or exclusive economic zone, should not, however,
cover vast maritime areas which, on account of such geographical situations
as the absence of embracing coastlines, do not qualify for classification as
waters of that kind.

Fourthly, the significance of the emergence of the new concept of the
exclusive economic zone cannot be over-emphasized. While the régime of
the continental shelf, as regards both its concept and the geographical area
concerned, was gradually established to meet a specific need, that of the
exclusive economic zone is one which, without any particular reason for
the extent of 200 miles involved, suddenly gained universal support in the
early 1970s. But, in the nature of things, the cost of such support has been a
certain blurring of the issues. While in the case of the continental shelf

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249 CONTINENTAL SHELF (DISS. OP. ODA)

many exchanges of scholarly views preceded the adoption of the régime of
the 1958 Conference on the Law of the Sea, the concept of the exclusive
economic zone required only one or two years to reach the point of no
return, without being subjected to any sustained scholarly discussion from
the theoretical point of view. Although no delegate seems to be recorded as
ever having challenged the concept of the exclusive economic zone or cast
doubt on its 200-mile limit, the very concept and the operation of its régime
are still not clear-cut, and a more scrupulous scrutiny will be required
before it can be regarded as part of the established principles and rules of
international law. The Exclusive Economic Zone, which began as a fish-
eries zone, is now designed to cover the sovereign rights of the coastal State
for the exploitation not only of living resources but also of mineral
resources. The incorporation of mineral resources into the régime of the
Exclusive Economic Zone appears strange in that most of the provisions
dealing with that zone in the draft convention are entirely irrelevant to the
exploitation of mineral resources, and above all because the draft conven-
tion retains the régime of the Continental Shelf, concerned with the
exploitation of such resources, in parallel with that of the Exclusive Eco-
nomic Zone. As I have endeavoured to show in detail, this trend towards
the absorption of the continental shelf régime into that of the Exclusive
Economic Zone is too pronounced to be ignored. Hence the Court would
have shown realism in paying more serious attention to the question
whether a case submitted as one of Continental Shelf delimitation was not
also a case implying the delimitation of the Exclusive Economic Zone.

Fifthly, throughout the negotiations in UNCLOS II the delimitation of
the Exclusive Economic Zone and the delimitation of the Continental
Sheif, despite separate discussion of the question of outer limits, were dealt
with together, and no doubt was expressed that the same principles and
rules should be applicable in each case. It can be argued, of course, that,
although the principles applicable to delimitation of the Continental Shelf
and delimitation of the Exclusive Economic Zone may be the same, the
practical application of those principles in each case might be different as a
result of applying the same principles in different frameworks. If not, what
ought to have been considered by the Court was whether criteria of dis-
tance, being intrinsic to the Exclusive Economic Zone and also favoured by
the latest concept of the continental shelf (which sounds the knell of both
the depth and the exploitability tests), ought not to play a role in the
common delimitation of the area.

Section II. The Status of the Third State in the Case of Delimitation of the
Continental Shelf

1. In general

147. Although the solution which I personally favour has at least the
merit, as will be seen, of largely obviating the need to define the area
concerned in the delimitation, I believe that it is appropriate for me to

235
250 CONTINENTAL SHELF (DISS. OP. ODA)

address certain aspects of this problem which may affect the task of
delimitation. Among these is the situation of third States in relation to the
geographical claims of Parties to the dispute. For it is in any event difficult
to define in advance the disputed areas in a case concerned with the
delimitation of the continental shelf of adjacent States, but this difficulty is
all the greater when, as in the present case, the sea area which both Parties
face is also surrounded by other States. A map of the central Mediterra-
nean clearly indicates that any area of the sea related to the present case
falls within the 200-mile distance from the coast, and, looking at the places
where the respective interests of Tunisia and Libya can be seen, one can
readily recognize that a few other States may be similarly interested in the
area concerned in the case.

148. In this connection I feel bound to reiterate a passage from the
opinion I appended to the Court’s Judgment of 14 July 1981 on Malta’s
application for permission to intervene :

“22. If the ‘area’ as to which the relevant circumstances to be taken
into account by the Court is to be simply an aggregate of the ‘area’
appertaining to Libya and the ‘area’ appertaining to Tunisia, so that it
does not affect any third State but only concerns these two States, how
can one identify that whole ‘area’ without possessing any precise
definition of that aggregate ? Is it not logical to suggest that when
these two States mention ‘the relevant circumstances which charac-
terize the area’, this ‘area’ must necessarily have a different conno-
tation from what is implied by the mere aggregate of the ‘area’
appertaining to Libya and the ‘area’ appertaining to Tunisia to be
delimited as a result of the Court’s Judgment ? This is borne out by the
use of the words ‘propres à la région’ (not ‘zone’) in Tunisia’s certified
French translation of the Special Agreement, where the English had
‘which characterize the area’. Certainly the delimitation of the two
‘areas’ is essentially a bilateral matter to be settled by agreement
between Tunisia and Libya. That delimitation ought not to intrude
upon the area-to-be of the continental shelf of any third State. Yet is it
possible to assume that when account is taken of the characteristics of
the area as a whole, an area in which a third State may have some legal
title to a portion of continental shelf, there will be no legal interest of
such a State which may be affected by the decision of the Court aimed
at the principles and rules of international law applicable in that
area ? Furthermore, is it proper to state that no conclusions or infer-
ences may legitimately be drawn from the findings or the reasoning
with respect to rights or claims of other States not Parties to this
Tunisia/ Libya case (Judgment, para. 35)? If any consideration is
given by the Court to the effect which, for example, the existence of an
island or islands in this ‘area’ may have in the delimitation of the
continental shelf between Tunisia and Libya, how can Malta remain
unaffected by a decision of the Court indicating the principles and
rules therein involved ?

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CONTINENTAL SHELF (DISS. OP. ODA)

23. Without scrutinizing the details of the case, the Court cannot
now define the ‘area’ of which the relevant circumstances to be taken
into account by the Court are characteristic. The Court cannot take a
position in advance in this respect without dealing with the principal
case. Since this ‘area’ actually is not limited to the expanses in which it
is evident that no third State may have a claim, the possibility or
probability of an adverse effect upon a third State is not excluded.
Theoretically, a number of States may have a claim to the continental
shelf in the ‘area’, invoking any justification which they may prefer for
this purpose, because the criteria for delimitation of the continental
shelf have not yet been firmly settled. Yet, in the light of developments
in the law of the sea, it would not have been difficult for the Court to
exercise its discretionary powers under Article 62, paragraph 2, and
allow the intervention of the third State particularly concerned,
depending on the Court’s evaluation of the imminent and grave
interests prima facie at stake and considering the relevant factors. In
this case, I cannot agree that Malta, which prima facie belongs to the
very ‘area’ in issue, will escape any legal effect of the judgment of the
Court. This distinguishes Malta from all other countries (except per-
haps a few neighbouring States) many of which may of course be
interested in abstracto in the judgment of the Court concerning the
interpretation of the applicable ‘principles and rules of international

>»

law’.

2. Island States

149. For reasons which I shall subsequently make clear, it is pertinent at

this

stage to see whether, in the present state of the law of the sea, there is

anything special in the status of island States where the continental shelf

and

exclusive economic zone are concerned. The status of island States has

not been given much consideration throughout the development of the new
law of the sea during the past three decades. The 1958 Convention on the
Territorial Sea and the Contiguous Zone contained a provision on islands
(Art. 10), and so did that on the Continental Shelf :

237

“Article 1

For the purpose of these articles, the term continental shelf is used
as referring...

(b) to the sea-bed and subsoil of similar submarine areas adjacent to
the coast of an island.”
252 CONTINENTAL SHELF (DISS. OP. ODA)

This specific provision was the one newly inserted at the 1958 Geneva
Conference. In fact, Article 67 of the 1956 draft of the International Law
Commission contained no reference to islands, but paragraph 10 of its
commentary reads as follows :

“The term ‘continental shelf? does not imply that it refers exclu-
sively to continents in the current connotation of that word. It also
covers the submarine areas contiguous to islands.”

It was the Philippines which introduced into the text of the convention
the idea expressed in this commentary. The Philippines proposal (A/
CONF.13/C.4/L.26) was adopted by the Fourth Committee by 31-10-25
votes. The Phillipines delegate did not have a chance to explain the rea-
soning behind this proposal, but it might have been asked whether this
paragraph was not redundant, since the actual definition of the continental
shelf did not imply, despite the adjective, that it must be the shelf adjacent
not to an island but on/y to a continent.

Neither of the two provisions in the Geneva Conventions were drafted
particularly to cover an island State. Yet there was no doubt under the
Geneva Conventions on the Law of the Sea that an island, whatever its
status, may have a territorial sea and a continental shelf.

150. The only provision specifically relevant to an island in the 1981
draft convention is Article 121, the previous provisions found in Article 10
of the Convention on the Territorial Sea and the Contiguous Zone and in
Article 1 of the Convention on the Continental Shelf having been replaced
by this article, which reads as follows :

“Article 121. Régime of Islands

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

2. Except as provided for in paragraph 3, the territorial sea, the
contiguous zone, the exclusive economic zone and the continental
shelf of an island are determined in accordance with the provisions of
this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life
of their own shall have no exclusive economic zone or continental
shelf.”

No suggestion was ever made, and no idea ever presented, to imply that an
island State should be distinguished from other coastal States or from any
non-independent islands or groups of islands. Thus the “new accepted
trends” contain no pointers on the subject and provide no ground for
modification of my above-quoted opinion. It remained the Court’s duty to
avoid formulating any judgment affecting areas which might fall within the
purview of Malta’s interests.

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253 CONTINENTAL SHELF (DISS. OP. ODA)
Section III. Equitable Principles

1. Equitable apportioning

151. The present case was different in substance from most disputes
concerning land boundaries, or the sovereignty over an island, in which
what is required of the organ entrusted with deciding the matter is to
ascertain whether this or that claim to a particular boundary or island is
historically justified or not. In such cases, the decision to be made by that
organ is oriented towards finding and ascertaining, but not determining de
novo, the sovereignty of one party in areas of land or on an island. In
contrast, the dispute in the present case concerned sea-bed areas which
both Tunisia and Libya would have been entitled to claim under interna-
tional law, for, despite the continuing uncertainty as to the outer limit of
the continental shelf, the coastal State, under the new concept of the
continental shelf, is certainly entitled to claim sea-bed areas as far as a
distance of 200 miles from the coast. Furthermore, despite the continuing
uncertainty as to the precise régime of the exclusive economic zone, the
coastal State is entitled, within the universally agreed 200-mile limit, also
to claim sea-bed areas for the purpose of exploitation of mineral resources.
Thus in the case of two opposite States whose coasts are less than 400 miles
apart, there will be an area where each will have an equally valid
claim.

152. Furthermore, neither under the new concept of the continental
shelf nor under that of the exclusive economic zone is the lateral extent of
the sea-bed areas appertaining to the coastal State restricted a priori, so
that both Tunisia and Libya were in principle entitled to claim any area
within a 200-mile radius of any point on their coastlines as appertaining to
their respective continental shelf or exclusive economic zone. In other
words, given the adjacency of the two States, the areas which both were
entitled to claim certainly overlapped. Hence no line which could have
been suggested by the Court would have been an absolute line in the sense
of being the only possible /egal line, deviation from which would mean
encroachment upon the rights possessed ab initio by one party or the other.
Thus what the Court was requested to do was in effect not to establish the
greater cogency of one claim over another, but only to indicate the prin-
ciples and rules of international law for dividing the area which both
parties might claim under the concepts of the continental shelf and the
exclusive economic zone.

153. To pose the issue in these terms is inevitably to evoke the concept of
“a just and equitable share”, which was not acceptable to the Court in
1969. To be quite clear about the background to this rejection, it will be
advisable to quote the relevant passages in extenso :

“18. ... It considers that ... its task in the present proceedings
relates essentially to the delimitation and not to the apportionment of
the areas concerned, or their division into converging sectors. Delim-
itation is a process which involves establishing the boundaries of an

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254 CONTINENTAL SHELF (DISS. OP. ODA)

area already, in principle, appertaining to the coastal State and not the
determination de novo of such an area. Delimitation in an equitable
manner is one thing, but not the same thing as awarding a just and
equitable share of a previously undelimited area, even though in a
number of cases the results may be comparable, or even identical.
(I. C.J. Reports 1969, pp. 21 f.)

20. It follows that ... the notion of apportioning an as yet unde-
limited area, considered as a whole (which underlies the doctrine of
the just and equitable share) is quite foreign to, and inconsistent with,
the basic concept of continental shelf entitlement, according to which
the process of delimitation is essentially one of drawing a boundary
line between areas which already appertain to one or other of the
States affected. The delimitation itself must indeed be equitably
effected, but it cannot have as its object the awarding of an equitable
share, or indeed of a share, as such, at all, — for the fundamental
concept involved does not admit of there being anything undivided to
share out. (/bid, p. 22.)

39.... From this notion of appurtenance is derived the view which
... the Court accepts, that the coastal States’ rights exist ipso facto and
ab initio without there being any question of having to make good a
claim to the areas concerned, or of any apportionment of the conti-
nental shelf between different States. This was one reason why the
Court felt bound to reject the claim of the Federal Republic. . . to be
awarded a ‘just and equitable share’ of the shelf areas involved in the
present proceedings.” U.C.J. Reports 1969, p. 29.)

The Court did not accept the concept of apportioning “just and equitable
shares”, and I agree in the sense that the sea-bed area is not meant to be
parcelled out like so may fiefs. However, the Court’s rejection of this
notion in 1969 seems to have been very heavily dependent on its de-
velopment of the doctrine that “the rights of the coastal State in respect of
the area of the continental shelf . . . exist ipso facto and ab initio”. The Court
seems to have found it an implicit consequence of this doctrine that the
areas of continental shelf falling under the jurisdiction of each party were
predetermined ab initio, each being mutally exclusive of the other, so that
the function of the delimitation of the continental shelf consisted “merely”
in discerning and bringing to light a line already in potential existence. The
test of natural prolongation, and certain other features of the Judgment,
were developed precisely as an aid to the performance of that very special
and difficult task.

154. Now, whatever the necessity of the Court’s logic in the 1969 con-
text — and here it must be borne in mind that it was impelled to make some
pronouncement on the “equitable share” contention by its presence among

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the Submissions — I am fully persuaded, for reasons amply developed in
earlier chapters, that it has now been overtaken by events. There was thus
insufficient reason for the present Court, in 1982, to be inhibited from
realizing that the present delimitation was simply a question of equitably
dividing, or apportioning, between the Parties, by means of a justifiable
line of demarcation, those submarine areas which either could potentially
have claimed.

2. Geographical equity

155. The concept of “equity” is often suggested as applicable to any
case of dividing or apportioning and the case of delimitation of the con-
tinental shelf or the exclusive economic zone is no exception. The Truman
Proclamation of 1945, the first official document in this field, suggested,
for the boundary of the continental shelf between neighbouring States,
determination with the States concerned in accordance with equitable
principles, and the eleventh-hour provision of the draft convention on the
Law of the Sea provides in similar terms that “delimitation ... shall be
effected ... in order to achieve an equitable solution”. I am in agreement
with the Judgment that an equitable solution has to be achieved. However,
in saying that “delimitation is to be effected in accordance with equitable
principles” (para. 38), the Court cannot be regarded as suggesting princi-
ples and rules of international law, for it is simply stating a truism. Even
worse, it is simply telling the Parties what they already know and have
explicitly incorporated as a rider to their questions. The problem is what
principles and rules of international law should apply in order to achieve
an equitable solution.

156. Although simple insistence on an equitable solution is not very
helpful, since “equity” is a blanket concept susceptible of divers interpre-
tations, yet “equity” still remains the prevailing principle in delimiting the
continental shelf and the exclusive economic zone. How should it have
been applied in the circumstances of the present case ? The Parties have
asked the Court to take account of all the relevant circumstances which
characterize the area. For the Court simply to have indicated that they
should do the same would obviously have been no genuine answer.

157. Certainly various political, social and economic factors could have
been suggested for this purpose, and indeed the Judgment has briefly
referred to them: the size of the territories and their population, the
distribution of natural resources, the degree of development of the eco-
nomy and industry, etc., of the respective Parties. However, these factors
could not lead to a solution agreeable to the Parties because ideas of the
way in which they should be taken into account may well vary between
them. It could be asked, for instance, if the advanced industry or economy
of one State should justify its being given wider areas of the continental
shelf or exclusive economic zone than the other State, or whether the latter
should be given much wider areas to compensate for its poverty. It could

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also be asked whether the ratio between the two States’ areas of land
territory should in equity ensure the same ratio between their sea-bed areas
or whether, on the contrary, an inverse ratio of sea-bed areas would be
more equitable. Such questions involve global resource policies, or basic
problems of world politics which not only could not have been solved by
the judicial organ of the world community but stray well beyond equity as a
norm of law into the realm of social organization.

158. By the same token, the theory of the “hinterland” had also to be
excluded. The relevance of natural features such as mountains or rivers
appears prima facie more plausible, as they have often been determinative
in the fixing of land boundaries. If that is so, however, it should not be
forgotten that this circumstance is bound up with traditional problems of
communication and defence to which submarine topography scarcely
gives rise at all. Besides, such features seemed chiefly relevant when the test
of natural prolongation held sway, and even then their relevance was
subject to the overriding test of leading to an equitable solution. To seek in
them assistance for the application of “equitable principles” — an expres-
sion which, by the way, is undoubtedly taken in Anglo-American law as
synonymous with “principles of equity” — would surely have been to put
the cart before the horse, the more so in that their relevance may often be
interpreted in divergent ways. Furthermore, the direction of the land
boundary, for similar reasons, also affords no sure guide to an equitable
solution if the boundary follows a natural feature, and a fortiori if it does
not — which is not to say that the prolongation of the land frontier may not
in specific cases provide a solution acceptable to the States concerned.

159. In sum, the inequality of geography is a fact of the world, nature
cannot be refashioned, and the Court has no competence to guess at or
initiate any future policy of world social justice, going beyond the existing
principles and rules of international law. More especially, it should be
noted that, during the formulation of the concept of the exclusive eco-
nomic zone at UNCLOS III, the idea of granting some benefits to land-
locked and geographically disadvantaged countries with regard to the
exploitation of fishery resources in the exclusive economic zone of neigh-
bouring States was widely agreed ; but that such benefits have never, on
the other hand, been offered such disadvantaged States for the exploitation
of mineral resources. In its 1969 Judgment the Court properly pointed out
the following :

“91. Equity does not necessarily imply equality. There can never be
any question of completely refashioning nature, and equity does not
require that a State without access to the sea should be allotted an area
of continental shelf, any more than there could be a question of
rendering the situation of a State with an extensive coastline similar to

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that of a State with a restricted coastline. Equality is to be reckoned
within the same plane, and it is not such natural inequalities as these
that equity could remedy ... It is therefore not a question of totally
refashioning geography whatever the facts of the situation but, given a
geographical situation of quasi-equality as between a number of
States, of abating the effects of an incidental special feature from
which an unjustifiable difference of treatment could result.

92. It has however been maintained that no one method of delim-
itation can prevent such results and that all can lead to relative
injustices. This argument has in effect already been dealt with. It can
only strengthen the view that it is necessary to seek not one method of
delimitation but one goal... As the operation of delimiting is a
matter of determining areas appertaining to different jurisdictions, it
is a truism to say that the determination must be equitable ; rather is
the problem above all one of defining the means whereby the de-
limitation can be carried out in such a way as to be recognized as
equitable.” (Z.C.J. Reports 1969, pp. 49 f.)

The Court was, however, quick to deny the merits of the equidistance
principle in paragraph 101 (C), suggesting instead :

“(1) delimitation is to be effected by agreement in accordance with
equitable principles, and taking account of all the relevant cir-
cumstances, in such a way as to leave as much as possible to each
Party all those parts of the continental shelf that constitute a
natural prolongation of its land territory into and under the sea,
without encroachment on the natural prolongation of the land
territory of the other.” (bid, p. 53.)

160. In the drawing of maritime boundaries, the geography of the areas
concerned has always played a very important role ever since the Inter-
national Law Commission first started dealing with the law of the sea, and
rarely has any other element been considered a factor affecting it. The 1958
Convention suggested the formula of application of the principle of equi-
distance from the coasts “unless another boundary line is justified” : and
the successive negotiating texts of UNCLOS III, the RSNT, the ISNT and
the ICNT, all spoke of “applying, where appropriate, the median or
equidistance line and taking account of all the relevant circumstances”. I
find that these suggestions relate simply to the geography of the specific
areas concerned. In addition, it cannot be over-emphasized that in the new
concept of the continental shelf as well as in the exclusive economic zone
the distance criterion now plays a decisively important role in defining the
expanse of the respective areas, thus also qualifying their very nature.

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Section IV. Proportionality as a Function of Geographical Equity

161. In seeking the correspondence between equity and geography in the
division of a sea-bed area, it goes without saying that the expanse allocated
to each State concerned does not necessarily have to be equal. If we seek
“equity” and not “equality” in this respect, what has been thought of, even
implicitly, as governing such equity ? The concept of equity must in this
context imply certain criteria which are related to some geographical
concept. To my mind, the lengths and relative positions of the coasts facing
the sea-bed areas concerned have been implicit in the concept of equity in
this respect. In this connection the Court, in its 1969 Judgment, properly
stated :

“98. A final factor to be taken account of is the element of a
reasonable degree of proportionality which a delimitation effected
according to equitable principles ought to bring about between the
extent of the continental shelf appertaining to the States concerned
and the lengths of their respective coastlines, — these being measured
according to their general direction in order to establish the necessary
balance between States with straight, and those with markedly con-
cave or convex coasts, or to reduce very irregular coastlines to their
truer proportions.” (.C.J. Reports 1969, p. 52.)

The Court also mentioned in paragraph 101 (D), as a factor to be taken into
account in the course of negotiations :

“(3) the element of a reasonable degree of proportionality, which a
delimitation ... ought to bring about between the extent of the
continental shelf areas appertaining to the coastal State and the
length of its coast measured in the general direction of the
coastline...” (Jbid., p. 54.)

When equity in the division of offshore areas has been the topic of dis-
cussion, the length of the coast of each State has never been disregarded,
and it is further important to note that the length of coastline in this respect
is not the length measured in accordance with the detailed configuration of
the coast, but that measured in the general direction of the coast, as
suggested in the 1969 Judgment. Whether the line of delimitation selected
is equitable or not must always be verified by the test of proportionality, or,
to put it the other way round, this concept is in principle useful in the
verification of geographical equity.

162. The concept of proportionality as between the areas and the
lengths of coast is not meant to determine any concrete line of demarcation
for the delimitation of the area, for the number of lines capable of pro-
ducing the same proportion is obviously limitless. No, it simply affords a
certain basis for consideration of whether any suggested line would satisfy
the requirement of equity. This seems to have been very properly pointed
out by the Decision in the Arbitration of 1977 between the United King-
dom and France on the delimitation of the continental shelf, which stated):

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259 CONTINENTAL SHELF (DISS. OP. ODA)

“100. ... But particular configurations of the coast or individual
geographical features may, under certain conditions, distort the
course of the boundary, and thus affect the attribution of continental
shelf to each State, which would otherwise be indicated by the general
configuration of their coasts. The concept of ‘proportionality’ merely
expresses the criterion or factor by which it may be determined
whether such a distortion results in an inequitable delimitation of the
continental shelf as between the coastal States concerned. The factor
of proportionality may appear in the form of the ratio between the
areas of continental shelf to the lengths of the respective coastlines, as
in the North Sea Continental Shelf cases. But it may also appear, and
more usually does, as a factor for determining the reasonable or
unreasonable — the equitable or inequitable — effects of particular
geographical features or configurations upon the course of an equi-
distance-line boundary.” (HMSO, Cmnd. 7438, p. 60.)

The Decision went on to state, most acutely, that : “it is disproportion
rather than any general principle of proportionality which is the relevant
criterion or factor” (ibid, p. 61, para. 101).

163. Furthermore, the concept of proportionality is an extremely gen-
eral one, and the area concerned and the coastlines to be taken into account
in this respect cannot be presupposed. The outer limit of the areas at-
tributable to the respective countries can vary greatly according to, first,
the existence of third parties, and, secondly, the geographical or geomor-
phological circumstances determining the outer limit of the continental
shelf. In other words, the existence of a third party may adversely affect
one party if ignored when a line is drawn to reflect proportionality as
between the divided area and the lengths of coastline. In addition, in the
case of neighbouring States which face the vast ocean, any differences in
geomorphology which must (according to recent trends) be taken into
account in determining the outer limit of the continental shelf (1e., as
between two such States of which one faces a continental margin extending
beyond 200 miles while the other does not) may certainly result in an
unbalanced division of the area in spite of a line having been drawn to
reflect proportionality. Such results are unavoidable, unless we are to be
concerned with the application of social justice or distributive justice to the
resources of the sea. In conclusion, proportionality may have to be gauged
simply by eyeing the area concerned as a whole, from a very broad
macrogeographical standpoint, rather than with an eye to establishing any
predetermined ratio in the apportionment of the area. In this respect it may
be appropriate to quote, from the 1977 Decision of the Arbitration
between the United Kingdom and France, the most appropriate evalua-
tion of the concept of proportionality.

“101. ...[T]here can never be a question of completely refashion-
ing nature, such as by rendering the situation of a State with an
extensive coastline similar to that of a State with a restricted coast-

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line ; it is rather a question of remedying the disproportionality and
inequitable effects produced by particular geographical configura-
tions or features in situations where otherwise the appurtenance of
roughly comparable attributions of continental shelf to each State
would be indicated by the geographical fact. Proportionality, there-
fore, is to be used as a criterion or factor relevant in evaluating the
equities of certain geographical situations, not as a general principle
providing an independent source of rights to areas of continental
shelf.” (Ibid, p. 61.)

164. In my view, the Judgment is not correct in starting from a more or
less precise calculation of the length of the coastlines and the expanse of
the areas. It suggests in paragraph 131 that while the ratio of the coastlines
of Libya and Tunisia in this area is 31 : 69, or, reckoned on a basis of
straight-line coastal fronts, 34: 66, the line proposed would result in
dividing the area approximately in the ratio of 40 : 60 between Libya and
Tunisia. First, how can the area concerned be defined in advance in terms
of definite parallels and meridians, as attempted in paragraphs 75 and 130.
If the present case were to be one where a confined area is to be shared out
in conformity with the concept of proportionality, the case would be very
simple. But actually this is not such a case. As I have suggested before, the
concept of proportionality to be applied in delimitation of maritime areas
is a very general one, since in most cases the areas concerned are not
mathematically specific and the relevant lengths of coastline of the States
concerned are not susceptible of very precise definition.

Section V. The Rule of Equidistance

1. General application

165. The equidistance method, a geometrical method which leaves no
room for equivocal interpretation, has since the 1958 Convention often
been suggested for the delimitation of the continental shelf. Throughout
UNCLOS III the equidistance method was suggested for the delimitation
of the continental shelf and Exclusive Economic Zone by one school of
thought and opposed by another. No method other than that of equidis-
tance has ever been submitted in UNCLOS III, as a simple suggestion of
equitable principles could have been no substitute for the equidistance
method. As the Court seems to admit in its 1969 Judgment, no other
method of delimitation has the same combination of practical convenience
and certainty of application. Is there any other method which may possibly
represent equity as explained above ? Here I would like to quote, with great
admiration, from the dissenting opinion of Judge Tanaka in the 1969 case,
as follows :

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“The incorporation of the equidistance rule as a geometrical tech-
nique into a legal norm [Article 6 of the Convention on the Conti-
nental Shelf] exemplifies an extremely widespread phenomenon
which can be observed in regard to several kinds of extra-legal, social
and cultural norms and in such fields as usage, ethics and tech-
niques ... In the case of the equidistance principle, a technical norm
of geometrical nature, after being submitted to juridical evaluation
has become incorporated or naturalized in law as a legal norm vested
with obligatory force.” (CJ. Reports 1969, p. 183.)

166. As suggested in the 1969 Judgment, equidistance may not be the
sole method for delimitation purposes, and no doubt has existed that in
principle this method would be followed only in certain normal situations
where it produces an equitable solution to the problem of the division of
sea-bed areas. If this method is one which, in principle, should apply in
normal situations, as suggested in the 1958 Convention and the 1969
Judgment of the Court, how can one say that this cannot be a rule of
delimitation ? This does not of course mean that it is a compulsory rule in
abnormal circumstances. As mentioned previously (para. 49), in 1953 the
Committee of Experts on Certain Technical Questions concerning the
Territorial Sea was already well aware of the necessity of allowing excep-
tions. In 1956 the International Law Commission pointed out, in its final
draft, that “provision must be made for departures [from the equidistance
method]” and that “this case may arise fairly often so that the rule adopted
is fairly elastic” (para. 51). The 1958 Convention accordingly provided
that a boundary other than the equidistance line might be justified by
special circumstances. This was not, however, unequivocal, since no clue
was given as to what might constitute such special circumstances, nor as to
the effect to be ascribed to them, and the practical application of the text
was therefore bound to give rise to many difficulties. I would further
suggest that the reason why this provision of the Convention has often
been found open to criticism, both within and outside UNCLOS HI, lies in
the way it was drafted, harnessing together the unequivocal geometrical
method of “equidistance” and the equivocal notion of “special circum-
stances”.

167. Moreover, if the equidistance method was not accepted by the 1969
Judgment, this was apparently not because the equidistance method itself
would be inapplicable, but for the reasons implied in the Judgment
(para. 89) that there existed convergent claims of several States and certain
irregularities such as a concave or convex coastline in the North Sea area,
and that the Court thought that simply employing the equidistance method
would produce an unreasonable result. If the baselines had been adjusted
to rectify the irregularity of the coastlines, the Court would surely have
hesitated to refuse merit to the equidistance method. In any case, what the

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Court was rejecting was equidistance as argued for by two of the three
Parties in the peculiar circumstances of the dispute ; just as in the case of its
rejection of the “equitable share” contention, there has in my view been too
great a readiness to generalize from the Court’s treatment in 1969 of
specific submissions. Here I would like to borrow the following from the
1977 Decision of the Court of Arbitration :

“Q7....{T]he appropriateness of the equidistance method or any
other method for the purpose of effecting an equitable delimitation is
a function or reflection of the geographical and other relevant cir-
cumstances of each particular case. The choice of the method or
methods of delimitation in any given case . . . has therefore to be deter-
mined in the light of those circumstances and of the fundamental norm
that the delimitation must bein accordance with equitable principles.”

168. The conflict between the two schools of thought, which had
manifested itself by 1978 in UNCLOS III, is illustrated by one proposal
(NG 7/2), which suggested a formula “employing, as a general principle,
the median or equidistance line, taking into account any special circum-
stance where this is justified”, and another (NG 7/10), which spoke of a
formula “in accordance with equitable principles, taking into account all
relevant circumstances and employing any methods where appropriate”
(para. 135). This conflict may not, as generally thought, be insurmount-
able, since the concept of equity seems to underlie the former formula,
while the latter attempts to promote the quest for practical ways of
implementing this same concept of equity. The main point, at any rate, is
that since the time of the 1958 Conference on the Law of the Sea efforts
have been made to reconcile equity with the geography surrounding the
sea-bed areas concerned. Perhaps the true solution to the problem relating
to the method of equidistance is that account should always be taken of
various elements and factors when determining the baselines from which
the equidistance line is to be plotted. Should the real configuration of the
coast of each State be the sole baseline for measuring equidistance ? This is
basically the principle applicable for determining the outer limit of the
territorial sea. However, the inherent logic of the 1958 Convention might
be so construed : while the sole use of the equidistance method can be
expected to lead to an equitable result, this is on the understanding that the
baseline to be employed for the purpose of the geometrical construction
will vary from case to case, from the strict version used in measuring the
limit of the territorial sea to certain modified baselines employed because
of special circumstances in the geography of the region.

169. If I may put the conclusion first, “irregularities in coastlines” and
the “existence of islands” have always, even if only implicitly, been
regarded as circumstances to be taken into account. Certainly, not just any

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existing geographical condition may be regarded as an anomaly, and it will
not be easy to define what irregularities should be rectified in determining
the baseline for application of the equidistance method. However, an
irregular overall shape of the coastline, significant configurational irregu-
larities and the existence of narrow promontories or peninsulae, or even of
islands, might be agreed upon as constituting irregularities the effect of
which is to be mitigated in settling the baselines. The degree of irregularity
to be considered significant in each case may vary according to the overall
expanse of the area concerned. If the area is comparatively large, the
existence of some irregularity may well be ignored, but if it is small even
some minor irregularity would probably have to be taken into account for
the purpose of rectifying the baseline for delimitation of the continental
shelf or Exclusive Economic Zone.

2. An island as an irregularity of the coastline

170. Although the status of islands in connection with the delimitation
of the continental shelf was not provided for in either the 1958 Convention
on the Continental Shelf or the 1981 draft convention on the Law of the
Sea, views have often been expressed on whether all islands should have the
status of a baseline for measuring the equidistance line when delimiting the
continental shelf. In this connection, it is proper to reflect once more upon
how islands were treated at the 1958 Conference and UNCLOS III. I have
referred to Article 10 of the Convention on the Territorial Sea and the
Contiguous Zone and Article 1 of the Convention on the Continental
Shelf, the only provisions relevant to the status of islands in the Geneva
Conventions on the Law of the Sea (para. 149). As was also stated above
(para. 150), Article 121 is the only article in the draft convention that deals
with islands. I again quote the most relevant provision therein :

“2.... the territorial sea, the contiguous zone, the exclusive eco-
nomic zone and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to other
land territory.”

This text has not changed since it'was drafted as Article 132 of the ISNT.
The drafting style of this provision is similar to that of Article 10, para-
graph 2, of the Territorial Sea Convention. The difference lies in the fact
that, while under the 1958 Convention “the territorial sea of an island is
measured in accordance with” the provisions of the Convention, under the
1981 draft convention not only the territorial sea but also the exclusive
economic zone and the continental shelf of an island “are determined in
accordance with the provisions of this Convention applicable to other land
territory”.

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264 CONTINENTAL SHELF (DISS. OP. ODA)

171. The influence of islands on the delimitation of the continental shelf
was not provided for in the 1958 Convention on the Continental Shelf, and
was also not a point dealt with in the 1969 Judgment of the Court. I have
briefly referred to this problem (para. 53). However, it will be as well to
recapitulate how this problem was argued at the 1958 Geneva Conference.
For the case of opposite States, Italy made the following proposal, which
has been quoted previously :

“Where in the proximity of coasts which are opposite to each other
there are islands belonging to the said continuous continental shelf, in
the absence of agreement, the boundary is the median line every point
of which is equidistant from the low-water line along the coast of the
said States, unless some other method of drawing the said median line
is justified by special circumstances.” (A/CONF.13/C.4/L.25.)

The Swedish delegate remarked that this proposal might be interpreted to
mean that the median line should be drawn solely on the basis of coastlines,
leaving islands entirely out of account. Iran also proposed :

“Where an island or islands exist in a region which constitutes a
continuous continental shelf, the boundary shall be the median line
and shall be measured from the low-water mark along the coasts of the
States concerned, provided, however, that where special circum-
stances so warrant, the median line shall be measured from the high-
water mark along the coastline of such States.” (A/CONF.13/C.4/
L.60.)

The Iranian delegate stated that his proposal was substantially the same as
the Italian amendment, except that his amendment recommended refer-
ence in special circumstances to the high-water mark. In the view of the
Iranian delegate, it was clear that, if islands were to be taken into account,
serious complications would arise and the benefit of having adopted the
median line rule would be lost by the difficulty of applying it. The Iranian
delegate suggested that the most convenient and most equitable solution
was not to permit islands situated much farther out than the territorial sea
to have any influence on the boundary. No opposition was explicitly
expressed toward these views, and both the Italian and Iranian proposals
were defeated almost outright at the Fourth Committee. It may not be
correct to conclude from this fact that a principle was formulated to have
the existence of islands taken into account in the drawing of the median
line. The delegate of the United Kingdom considered that the existence of
islands would fall in the category of special circumstances. He suggested
that for the purpose of drawing a boundary, islands should be treated on
their merits. The United States delegate agreed with the United Kingdom
delegate that, in view of the great variety of size, grouping and position of
islands, it would be impossible either to include or exclude all islands on

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the continental shelf, and that each case should be considered on its merits.
Hence taking into account the existence of all islands in drawing the
equidistance line was not conceivable. The existence of islands was no
more than one of the factors which might justify the invocation of special
circumstances.

172. In the United Nations Sea-bed Committee and UNCLOS III some
proposals concerning the status of islands also dealt with the question of
the effect of islands on the delimitation of the continental shelf. Some
proposals dealt simply with the existence of certain types of island as a
special circumstance, but other proposals suggested that the same princi-
ples should apply to both continents and islands. The following proposals
seem to be the most interesting in this respect. In their proposal on
“Régime of Islands”, submitted at the 1973 session of the Sea-bed Com-
mittee, Cameroon, Kenya, Madagascar, Tunisia and Turkey suggested :

“1. Maritime spaces of islands shall be determined according to
equitable principles taking into account all relevant factors and cir-
cumstances, including, inter alia :

(a) the size of islands ;

(b) the population or the absence thereof ;

(c) their contiguity to the principal territory ;

(d) whether or not they are situated on the continental shelf of
another territory ;

(e) their geological and geomorphological structure and configura-
tion.” (A/AC.138/SC_II/L.43.)

In the second session of UNCLOS III in 1974, 14 African States (Algeria,
Dahomey, Guinea, Ivory Coast, Liberia, Madagascar, Mali, Mauritania,
Morocco, Sierra Leone, Sudan, Tunisia, Upper Volta and Zambia)
proposed more detailed “Draft Articles on the Régime of Islands”
(A/CONF.62/C.2/L.62/Rev.1 — 27 August 1974) :

“Article 2

2. The marine spaces of islands considered non-adjacent, in accor-
dance with paragraphs | and 6, shall be delimited on the basis of
relevant factors taking into account equitable criteria.

3. These equitable criteria should notably relate to :

(a) the size of these naturally formed areas of land ;

(b) their geographical configuration and their geological and geomor-
phological structure ;

(c) the needs and interests of the population living thereon ;

{d) the living conditions which prevent a permanent settlement of
population ;

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(e) whether these islands are situated within, or in the proximity of,
the marine space of another State ;

(f) whether, due to their situation far from the coast, they may
influence the equity of the delimitation ...”

This latter set of proposals refers specifically to “non-adjacent” islands,
thus alluding to a distinction made elsewhere, and is concerned mainly
with the delimitation of the marine areas attributable to such islands as
distinct entities. This is a matter of some relevance to a topic I have dealt
with in an earlier chapter. The last subparagraph, (f), however, appears to
allude to delimitation between States, otherwise its meaning would be
somewhat circular.

173. Indeed it is evident that the presence of an island may “influence
the equity of a delimitation” according to its geographical position, and
not only when the island is to be regarded as non-adjacent. However, when
an island is within easy reach of the mainland, it is my conclusion that
geographical and demographic criteria will normally be sufficient to
determine whether it should be treated as a rectifiable irregularity. In other
words, an island should be considered on its own merits when the baseline
for the plotting of an equidistance line is being determined.

3. Low-tide elevations

174. After the above examination of the relevance of the shape of the
coast and the presence of islands to determine baselines for the measure-
ment of the equidistance line, it should be clear that the normal baseline for
measuring the breadth of the territorial sea could not always be used for the
equidistance method as applied to the delimitation of the continental shelf,
despite the provisions of Article 6 of the 1958 Convention on the Conti-
nental Shelf. In this connection I should like to make some further obser-
vations on the status of low-tide elevations. It is suggested under the 1958
Territorial Sea Convention that, where a low-tide elevation is situated
wholly or partly at a distance not exceeding the breadth of the territorial
sea from the mainland or an island, the low-water line on that elevation be
used as the baseline for measuring the breadth of the territorial sea
(Art. 11, para. 1). While it may be reasonable to provide that, in the case of
the delimitation of the territorial sea, a low-tide elevation should be taken
fully into account for determining the equidistance/median line (Art. 12,
para. 1), the situation might be quite different were this rule to be applied
in the case of delimitations of the continental shelf. The extent of the
territorial sea will in any case be limited to a narrow belt from the coast,
and, whatever the line of delimitation adopted for demarcating their ter-
ritorial seas between two States, its effect will probably not be very great.

175. However, this delimitation line, which may not produce any great
effect within the narrow confines of the territorial sea, will bring about an
enormous difference in the much more widely extended area of the con-
tinental shelf. If the baseline used for measurement is extended seaward
owing to the existence of a low-tide elevation, the effect will also be great. It

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is true that the 1958 Convention on the Continental Shelf provides that the
equidistance line should be measured from the baselines from which the
breadth of the territorial sea is measured, that is to say, taking into account
the existence of a low-tide elevation. It should not be overlooked, however,
that in the early days of the International Law Commission, which sub-
mitted the draft convention to the 1958 Conference on the Law of the Sea,
the three-mile limit was still regarded as having the widest acceptance for
the breadth of territorial seas. A low-tide elevation could have been taken
into account for measuring the territorial sea, or even the continental shelf,
if it were located within so narrow a limit as three miles from the coast.
However, it may be asked whether the same is true now that the breadth
of the territorial sea has been extended to 12 miles from the coast. Un-
doubtedly this difference between the 3-mile limit and the 12-mile limit
greatly affects the evaluation of the significance of a low-tide elevation
within the limit : the delimitation of the continental shelf would be greatly
affected by taking into account low-tide elevations which, it is submitted,
the International Law Commission in its early days had not contemplated.
It is accordingly my conclusion that, despite the provisions of the Con-
vention on the Continental Shelf, it would be proper to ignore the existence
of low-tide elevations in the case of a delimitation of the continental shelf,
now that the wider 12-mile limit of the territorial sea has become an
established rule of international law.

* x

176. In conclusion, I would suggest that, considering geography as the
sole factor to be employed for the division of the sea-bed area, a division of
the area concerned in proportion to the length of the relevant coast of each
State facing that area will, in principle, satisfy the requirement of equity,
and the geometrical method of equidistance will, in principle, serve to
achieve this purpose. As previously suggested, however, the concept of
proportionality between the continental shelf area and the length of
coastline must remain very vague in the absence of any precise knowledge
of the extent of the area to be divided and the relevant coastline of each
Party. No less difficult will be finding the baseline for drawing the equi-
distance line, whether one follows the real configuration of the coast and
takes account of the existence of islands, or modifies it on account of
certain irregularities of the coastline or the unusual location or character of
the islands. It must be admitted that it would be difficult, if not impossible,
to devise a general formula applicable to all cases in such a way as to
indicate the precise shape of any coastline, or the nature (size, economy,
distance from mainland, etc.) of any island, to be wholly or partially
disregarded. The geographical circumstances will have to be evaluated in
each case in the light of what is regarded as representing equity, to be
verified by proportionality between the continental shelf areas assigned
and the lengths of the relevant coasts.

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268 CONTINENTAL SHELF (DISS. OP. ODA)

CHAPTER VIII. PRACTICAL METHOD SUGGESTED

1. Suggested Method

177. I regret that I can neither share, nor even understand, the view
which the majority of the Court, in describing the practical method to be
employed for the delimitation between the Parties, has expressed to the
effect that the delimitation line should be composed of two segments. The
Court suggests, for its first segment, a straight line drawn from Ras Ajdir,
at an angle corresponding to the western boundary of the Libyan conces-
sions, to the point of intersection with a parallel passing through the most
westerly point of the Tunisian coastline in the Gulf of Gabes. What
justification can there be for prescribing a delimitation identified with a
line already emplaced by one Party, even if the other Party subsequently
granted some concessions in such a way as not to encroach upon it ? Is it
not a fact that the present case was brought to the Court by the Parties
because this line was not mutually satisfactory ?

178. What significance, moreover, from any objective viewpoint, has
the point of intersection of this line with the parallel passing through the
most westerly point of the Gulf of Gabes ? Why should that point be of any
special importance in the delimitation of the area concerned ? I realize that
a connection has been made between a change in the general direction of
the Tunisian coastline and the alleged necessity of “veering” the line, but
the translation of this connection into terms of a parallel of latitude can
only result from an optical illusion in which a conventional lattice of
cartography is treated as part of the natural configuration. This is the more
disconcerting in that the Court has rightly resisted the Parties’ efforts to
persuade it to view the area as imprinted with a north-south or west-east
orientation, as the case may be. I suggest that, if the configuration of the
area is looked at from a position and angle different from the traditional
north-south/west-east view, it will immediately be apparent that the sug-
gested veering point has no special relationship with the most westerly
point in the Gulf of Gabes. Unless there is specific agreement between the
Parties to attach special significance to parallels or meridians, it is surely a
serious error in delimitation to treat them as anything more than con-
venient lines of reference for descriptive purposes. A companion error
is to attach special significance to the cardinal points of the compass, and
here I am thinking of the possibility that the “most westerly” point of the
Gulf of Gabes may not be the geometrically correct point from which to
consider that a change of general direction occurs.

179. For the second segment of the line the Court suggests a bearing of
52°. Is it possible to find any principle or rule of international law which
will provide a ground for this inclination ? Surely not. In paragraphs 128
and 129 of the Judgment it is suggested that this segment of the line derives
from a parallel with the general direction of the coast of Tunisia north of
the most westerly point of the Gulf of Gabes, as adjusted to allow a
“half-effect” to the Kerkennah Islands. Why should this segment of the

254
269 CONTINENTAL SHELF (DISS. OP. ODA)

line be parallel with the coast of Tunisia rather than the coast of Libya ? In
any case, a line in parallel to the coastline can appropriately be used for the
outer limit of maritime zones, but not for the lateral or common boun-
daries of the zones of adjacent or even opposite States. If a geometrical
method of delimitation such as a parallel to the bisector of the angle made
by one line drawn from the most westerly point of the Gulf of Gabes to Ras
Kaboudia and another to the seaward coast of the Kerkennah Islands is to
be used, why shouid not this idea of bisecting angles have been applied for
drawing the first segment of the boundary? In addition, in spite of
recognizing that low-tide elevations have some significance, the Court not
only seems to ignore them for no stated reason as a possible baseline for the
shelf delimitation, but also disregards them in recommending an angle of
52° to the meridian as being the bisector of the angle between the (42°)
line drawn from “the most westerly point of the Gulf of Gabes” to Ras
Kaboudia, and the other (62°) line “from that point along the seaward coast
of the Kerkennah Islands” (emphasis added), simply because “to cause the
delimitation line to veer even as far as to 62°, to run parallel to the island
coastline, would, in the circumstances of the case, amount to giving
excessive weight to the Kerkennahs”. The treatment here given by the
Judgment to low-tide elevations (however correct in itself) cannot but give
rise to a suspicion that the “bisector” is employed simply to justify the
somewhat arbitrarily determined angle of the second segment. In fact, the
angle of 52° seems to depend on the happy coincidence that the seaward
coast of the Kerkennahs happens to lie in the path of the line extended
from the most westerly point of the Gulf of Gabes. That being so, I am
personally at a loss to see any reason why this particular parallelism adds to
the persuasiveness of the inclination of 52° preferred for the second seg-
ment.

180. In fact, the Court fails to adduce any cogent ground for either
segment of the line, or for the line as a whole, a line which does not
exemplify any principle or rule of international law. It may represent an
acceptable solution, but whether it is equitable can only be verified by
comparing it with the outcome of applying a truly equitable method. But if
a method can be applied for the purpose of verification, why should it not
have been tried in the first place ?

181. As demonstrated above, equity requires that delimitation of the
continental shelf (or of the exclusive economic zone) should be effected in
accordance with the geography of the area concerned, i.e., so as to secure
reasonable proportionality between lengths of coastline and the expanses
allocated. I hold this to be generally true, but there will surely be wide
agreement that it is at any rate true in cases, like the present one, where (as
the Judgment indicates in para. 133 A (2)) the concept of natural prolon-
gation provides no useful guide. It can be shown, both as a geometrical
theorem and empirically, that the plotting of an equidistance line will
normally satisfy this requirement of equity, provided certain preliminary

255
270 CONTINENTAL SHELF (DISS. OP. ODA)

conditions, which I have described, are observed before the plotting
is undertaken. The qualified equidistance method is thus the equitable
method par excellence, and for this reason alone should be tried be-
fore all others.

182. In paragraph 109 the Judgment states that “equidistance may be
applied if it leads to an equitable solution ; if not, other methods should be
employed”. Despite the proposition put forward in paragraph 110 of the
Judgment, the fact that the Parties have (for reasons not unconnected with
the extent of their respective claims) argued that the application of the
equidistance method would not be an appropriate solution does not, in my
view, conclusively deprive the Court of its right to suggest the qualified
equidistance method that I have just suggested. Is there in the Judgment a
trace of any effort to prove that equidistance in the present case will lead to
an inequitable solution ? I feel bound to point out the inconsistencies in the
Court’s preference for bisected angles, compromise boundaries, half-
effects, etc. Not only do these attempts to “split the difference” derive from
an implicit purpose of apportionment, but they are all simply approxima-
tions to the consistent geometrical approach, based on a distance criterion,
which the Court has rejected for no stated reason. And a distance criterion
is precisely the one established feature of the exclusive economic zone
régime which is destined to replace natural prolongation as a test in
delimitation of the continental shelf.

183. In the present case the preliminaries involve taking into account
the following geographical circumstances :

(1) On inspection of the map, the coastlines of Tunisia and Libya which
face the area concerned, namely from Cap Bon in the north to Ras
al-Hamamah in the east, no feature is revealed, apart perhaps from the
presence of some islands, which calls for any departure from the
coastal configuration in determining the baseline from which to plot
the equidistance line for the delimitation of the continental shelf. The
question of the islands is dealt with in the next subparagraph.

(2) Ihave earlier concluded that islands should be considered on their own
merits for the purpose of delimitation of the continental shelf, and
suggested that an island within easy reach of the coast should be
viewed to that end from the viewpoint of demographic and geographic
circumstances. I shall devote a few words to Jerba, whose size, con-
figuration, contiguity to the coast and nearness to the frontier-point
(see below) are, taken together, such as to preclude its being disre-
garded. From the viewpoint of demography and economics, it can be
shown that the Kerkennahs are also of importance to Tunisia. How-
ever, this fact does not definitively exclude the possibility of disre-
garding them in plotting the equidistance line for the purpose of
delimitation of the continental shelf. To see whether this possibility is
plausible, one has to Jook closely at the geographical circumstances.

256
27

(3)

1 CONTINENTAL SHELF (DISS. OP. ODA)

Now, although within easy reach of the mainland, the Kerkennahs are
separated from it by approximately 11 miles and, being elongated and
far from parallel to the coast, project far out to sea ; they have thus
pushed the baseline for the territorial sea of Tunisia far to the east.
While this effect is tolerable and necessary for the territorial sea, it
would be so pronounced if applied to a vast and economically impor-
tant zone like the continental shelf that I feel impelled to recommend
the exclusion of the Kerkennahs from consideration in determining the
baseline from which the equidistance line is to be plotted, despite their
demographic importance. Here attention needs to be drawn to a
peculiarity of the equidistance method, namely that the extent to
which a geographical feature can be treated as an irregularity and
disregarded may depend on its distance from the frontier point. It may
be inequitable to disregard a feature near to that point, because to do
so would bring the dividing line too close to it, and in any case a feature
near to the frontier will not affect the course of the line for a very great
distance. A similar feature far from the frontier-point may, on the
contrary, have an altogether disproportionate effect, but that feature
can be disregarded without bringing the dividing line in any sense close
to it. Thus even if, for the sake of argument, the island of Jerba had not
been contiguous to the mainland and had had a similar configuration
to the Kerkennahs, it would have been very doubtful that it could be
disregarded.

Under the Geneva Conventions on the Law of the Sea, it was provided
that any low-tide elevation should form part of the baseline for the
measurement of the territorial sea, and also that this baseline should
apply when an equidistance line is plotted for the purpose of delimi-
tation of the continental shelf. However, as I have pointed out earlier,
it is scarcely appropriate to take account of low-tide elevations in the
delimitation of the continental shelf. This is particularly true in the
present case, since it is only on the coast of Tunisia that a significant
number of low-tide elevations exist, and their effect has been to place
the baseline for measuring the territorial sea of that country at a far
remove from the real coastline of the mainland. This simply reinforces
my view that low-tide elevations should be discarded as an element of
the baseline for the delimitation of the continental shelf.

184, Thus I would suggest that the line for the delimitation of the

continental shelf between Tunisia and Libya should be drawn as a line
equidistant from their respective coasts, disregarding all the low-tide ele-
vations off the coast of either Party and the existence of the Kerkennah

Isl

ands.
185. The technical methods for drawing the equidistance-median line in

the case of neighbouring States which are either adjacent or opposite are
well illustrated in Shalowitz’s Shore and Sea Boundaries, Volume I (1962),

25

7
272 CONTINENTAL SHELF (DISS. OP. ODA)

particularly at pages 232-235. Reference can also be made to Hodgson and
Cooper, “The Technical Delimitation of a Modern Equidistant Boun-
dary”, Ocean Development and International Law, Vol. 3, No. 4, 1976,
pp. 361 ff. In this connection I must point out that the Court seems to
misunderstand the practical application of the method of equidistance in
suggesting “the equidistance method [takes] full account of almost all
variations in the relevant coastlines” (para. 126). In fact, in drawing the
equidistance line, it is scarcely possible to take full account of “almost all
variations”, as only salient points or convexities on the coastline can affect
the drawing of this line. Provided only that the baseline excludes long,
narrow spurs or promontories and similar features, this is wholly equitable,
for the lengths of coastline between salient points or convexities will
embrace areas commonly recognized as internal in status, such as mouths
of rivers, coves and bays.

2. Suggested Line

186. Properly applied, from a baseline determined as I have explained,
the method of equidistance results in a line which, subject to expert
verification, includes the following points :

(i) 33° 50’ N and 11° 57’ E
(ii) 34° 25’ N and 12° 47 E
(iii) 34° 35’ N and 13° 03’ E
The line should be extended in the direction of the line connecting points
(ii) and (ii) above.

187. (1) Point (i) is roughly 40 miles from Ras Ajdir, and from it the
closest points are Ras Ajdir itself, together with a point on the eastern coast
of Jerba in Tunisia and Ras at-Talqa on the Libyan coast. It is technically
impossible to single out one equidistance line within the area landwards
from point (i), since Ras Ajdir, where the coastlines of both Parties meet, is
located at an apex. In cases where the point from which the line is to start is
so located, a plurality of equidistance lines is inevitable between the
starting-point and a point P equidistant from the starting-point itself and
two other points, one on each of the respective coasts. In the present case, P
is point (i). Hence the single line of equidistance can only start from point
(i). It then follows a course in which every point is equidistant from a point
on the eastern coast of Jerba in Tunisia and Ras at-Talqa on the Libyan
coast, until it reaches point (ii).

(2) Point (ii) is equidistant from Ras Kaboudia and the point on the
eastern coast of Jerba on the Tunisian side and Ras at-Talqga and Tripoli on
the Libyan side and it is the spot where the combined effect of the presence
of Ras Kaboudia in Tunisia and Tripoli in Libya is to deflect the line

258
273 CONTINENTAL SHELF (DISS. OP. ODA)

slightly eastwards. In other words, it is the turning-point of the equidis-
tance line. The line then follows a course in which every point is equidistant
from Ras Kaboudia in Tunisia and Tripoli in Libya.

(3) Point (iii) is the point on the last-mentioned line which is equidistant
from Tunisia and Libya, as well as from Malta. Since Malta is not a party to
the present case, this point is marked on the line simply to indicate the
direction of the line to be drawn from point (ii). In fact, it so happens that
at this point a feature located a few miles east of Tripoli, on the Libyan
side, starts pushing the line westwards, but only to a negligible degree.

(4) Although only point (ii) is mentioned as a turning-point, there are,
theoretically, more, but in each case the alteration in direction which would
result from changing the points of reference on the coast would be prac-
tically negligible, as the new reference-point would be merely a few miles
distant from the old.

(5) As stated previously, in the area landwards of point (i) any line
within a certain rhomboid can be an equidistance line. It may not be
inequitable to suggest the straight line connecting Ras Ajdir and point (i)
as the equidistance line for the purpose of delimitation. This line represents
a perpendicular to the coasts of both Parties measured over a distance
which is relatively short in comparison with that of about 40 miles from
Ras Ajdir to point (i).

(6) Attached hereto, purely by way of illustration, are two maps, one
giving the proposed equidistance line in the area offering itself for
delimitation, and the other giving the position of this line in the full back-
ground of the entire coastlines of both Parties.

188. It would be invidious to proceed farther and to demonstrate how
the suggested line satisfies the requirement of a reasonable degree of
proportionality (as defined in an earlier chapter), but I suggest that if this
demonstration is carried out it will be seen that the line in question
provides a useful yardstick against which to verify the equitable nature of
the two-part line prescribed by the Court. Without going into detail, I
would like before concluding to stress one very important advantage of the
equidistance method, when employed with the precautions I have outlined.
It lies in the fact that its inherent property of equity remains constant
whatever the “area relevant to the delimitation”, so that the imperious
necessity of defining that area is removed — and with it the need to resort to
the arbitrary and artificial use of parallels and meridians.

(Signed) Shigeru Opa.

259

274 CONTINENTAL SHELF (DISS. OP. ODA)

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260

275 CONTINENTAL SHELF (DISS. OP. ODA)

SYNOPTICAL TABLE OF CONTENTS

INTRODUCTION

Chapter I. TRENDS AT THE THIRD UNITED NATIONS CONFERENCE ON
THE LAW OF THE SEA AND STATUS OF THE DRAFT CONVENTION ON
THE LAW OF THE SEA

Section I. “Trends” as interpreted by Tunisia and Libya

Section II. The “consensus” formula of the Third United Nations
Conference on the Law of the Sea

Section III. Negotiating texts

Section IV. Draft convention on the Law of the Sea

CHAPTER II]. THE TRADITIONAL CONCEPT OF THE CONTINENTAL
SHELF
Section I. Early claims to the continental shelf and scholarly views
thereon
1. Pre-history of the claims to the continental shelf

2. Scholarly views on the continental shelf doctrine prior to the
1958 United Nations Conference on the Law of the Sea

Section II. Basic concept of the continental shelf in the 1958 Con-
vention on the Continental Shelf

1. Draft prepared by the International Law Commission
2. The régime of the continental shelf adopted in the 1958
Convention on the Continental Shelf

Section III. Development of ideas concerning delimitation of the
continental shelf

1. Draft prepared by the International Law Commission
2. Article 6 of the Convention on the Continental Shelf

Section IV. Significance of the 1969 Judgment of the Court

1. The continental shelf as a rule of customary international
law

2. Meaning of Article 6 of the Convention on the Continental
Shelf

CHAPTER III. SEDENTARY FISHERIES AND Historic RIGHTS

Introduction
Section I. Past practice and doctrines

1. Exploitation of sedentary species
2. Fishing by means of embedded equipment

261

Paragraphs

1-2

27-36

37-46

47-55

56-64

65
66-73
276 CONTINENTAL SHELF (DISS. OP. ODA)

Paragraphs
Section Il. Sedentary fisheries in the 1958 Conventions on the Law
of the Sea 74-84
1. Draft prepared by the International Law Commission
2. Provisions of the 1958 Conventions on the Law of the Sea
Section IIJ. Sedentary fisheries at the Third United Nations Con-
ference on the Law of the Sea 85
Section IV. Historic rights 86-88

CHAPTER IV. New TRENDS IN THE CONCEPT OF THE CONTINENTAL
SHELF

Section I. The halting of the expansion of the outer limit of the
continental shelf

Section II. Fluctuation of the criteria for the outer limit of the
continental shelf

1. Suggested criteria
2. Negotiating texts

Section III. Changing concept of the continental shelf

CHAPTER V. IMPACT OF THE CONCEPT OF THE EXCLUSIVE ECONOMIC
ZONE ON THE CONCEPT OF THE CONTINENTAL SHELF

Introduction
Section I. New concept of the exclusive economic zone

1. Emergence of the concept
2. Concept of the exclusive economic zone as suggested in the
Negotiating Texts

Section II. Some ambiguities in the concept of the exclusive eco-
nomic zone

1. Unclear concept of conservation management
2. Somewhat unbalanced concept of the enforcement of the
laws and regulations of the coastal State

Section II. Relations between the continental shelf and the exclu-
sive economic zone

1, Parallel régimes of the continental shelf and the exclusive
economic zone

2. Exploitation of submarine mineral resources under the dif-
ferent régimes of the continental shelf and the exclusive eco-
nomic zone

CHAPTER VI. TRENDS IN THE DELIMITATION OF THE CONTINENTAL
SELF/EXCLUSIVE ECONOMIC ZONE AT THE UNITED NATIONS
THIRD CONFERENCE ON THE LAW OF THE SEA

Section I. Various proposals for delimitation
Section Il. Negotiating texts

1, Existence of two schools of thought
2. Significance of Articles 74/83 of the draft convention

262

89-93
94-105

106-107

108
109-120

121-125

126-130

131-133
134-145
277 CONTINENTAL SHELF (DISS. OP. ODA)

Paragraphs
CHAPTER VII. PRINCIPLES AND RULES FOR THE DELIMITATION OF
THE CONTINENTAL SHELF/ EXCLUSIVE ECONOMIC ZONE

Section I. Introduction 146
Section II. The status of the third State in the case of delimitation of
the continental shelf 147-150

1. In general
2. Island States

Section III. Equitable principles 151-160

1. Equitable apportioning
2. Geographical equity

Section IV. Proportionality as a function of geographical equity 161-164

Section V. The rule of equidistance 165-176

1. General application
2. An island as an irregularity of the coastline
3. Low-tide elevations

CHAPTER VIII. PRACTICAL METHOD SUGGESTED 177-188

1. Suggested method
2. Suggested line

Maps

263