123

DISSENTING OPINION OF JUDGE ODA

TABLE OF CONTENTS

Paragraphs

OPENING REMARKS

CHAPTER J. MISCONCEPTIONS IN THE PRESENT JUDGMENT

1

2.
3.
4.
5.

Development of the law of the sea

Misconstruction of the “relevant area” for the operation of the
Judgment

Misapplication of the proportionality test

Maladjustment of “equidistance” line

Regarding geography

CHAPTER II. REAPPRAISAL OF THE “EQUIDISTANCE/SPECIAL-CIRCUM-
STANCES” RULE

1.

2.

114

Introduction : failure of UNCLOS III in 1982 to indicate positive
rules for the delimitation of the continental shelf

The “equidistance/special-circumstances” rule for the delimita-
tion of a single continental shelf homogeneous in terms of the
200-metre depth criterion

(i) The Rule in the Geneva Convention on the Continental
Sheif
(ii) The 1969 Judgment of the Court in the North Sea Continental
Shelf cases
(iii) The 1977 Decision in the Anglo-French Arbitration

. The “equidistance/special-circumstances” rule in UNCLOS JI

. The “equidistance/special-circumstances” rule for the delimita-

tion of a single continental shelf homogeneous in terms of the
200-mile distance criterion

(i) New parallelism between the inner continental shelf and the
outer continental shelf
(ii) Unchanged legal basis of the continental shelf
(iii) Impact of the new régime of the exclusive economic zone
upon the continental shelf

. Rule for the division of a single homogeneous maritime area

. Equity within the “equidistance/special-circumstances” rule

31-33

34-45

46-48

49-60

61-64
65-70
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CHAPTER JII. MISUNDERSTANDING OF “PROPORTIONALITY” AND “HALF-
EFFECT OF AN ISLAND” IN RECENT JUDGMENTS

Introduction 71

1. The 1982 Judgment in the Continental Shelf (Tunisia/ Libyan
Arab Jamahiriya) case 72-73

2. The 1984 Judgment of the Chamber in the Delimitation of the
Maritime Boundary in the Gulf of Maine Area case 74-78
3. Conclusion 79
CHAPTER IV. SUGGESTED LINE OF DELIMITATION 80

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OPENING REMARKS

1. To my profound regret, I was not able to vote for the present Judg-
ment, as on some important points IJ differed from the view of the Court. In
my view, the Court has not fully grappled with the recent developments in
the law of the sea and is in danger, in its application of equity, of taking the
principle of equity for what it subjectively feels to be equitable in a
particular case. In this respect, this Judgment follows — in my own view — a
mistaken approach which first appeared in the Court’s Judgment in the
Continental Shelf (Tunisia/ Libyan Arab Jamahiriya) case in 1982 and then
in the Chamber Judgment in the Delimitation of the Maritime Boundary in
the Gulf of Maine Area case in 1984. As the Judgment properly states, the
application of justice “should display consistency and a degree of predic-
tability” (para. 45); yet those qualities are somewhat lacking in these
successive decisions. Apart from references to “equitable principles”, the
“equitable result” or “relevant circumstances”, the Court does not respond
to the Parties’ request with any principles or rules on which they can
depend for the delimitation of the continental shelf, but simply translates
“equity” as a subjective appreciation of the circumstances. It has not made
an attempt to understand how the “equidistance/special-circumstances”
rule, employed since the Geneva Convention on the Continental Shelf in
1958, has always been interpreted in connection with the principle of
equity. The delimitation line suggested by the Court resembles more the
result of a transaction than an application of judicial principles. I cannot
but feel as I did in the 1982 case, when I stated :

“the Court suggests as the positive principles and rules of interna-
tional] law to apply in this case only equitable principles and the taking
into account of all relevant circumstances. 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.” (1. C.J.
Reports 1982, p. 157, para. 1.)

CHAPTER I. MISCONCEPTIONS IN THE PRESENT JUDGMENT

1. Development of the Law of the Sea

2. The present Judgment does not deny that “the 1982 Convention is of
major importance” (para. 27), and finds it the Court’s duty “to consider in
what degree any of its relevant provisions are binding upon the Parties as a
rule of customary international law” (ibid.). It acknowledges the impact of

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the new institution of the exclusive economic zone upon the régime of the
continental shelf, by recognizing that :

“Itis in the Court’s view incontestable that . . . the institution of the
exclusive economic zone, with its rule on entitlement by reason of
distance, is shown by the practice of States to have become a part of
customary law.” (Para. 34.)

On the other hand, the Judgment hesitates to acknowledge that “the con-
cept of the continental shelf has been absorbed by that of the exclusive
economic zone” (para. 33). While acknowledging that the distance cri-
terion applies to the continental shelf as well as to the exclusive economic
zone, the Judgment refuses to admit that “the idea of natural prolongation
is now superseded by that of distance” (para. 34). Instead, it suggests
that

“where the continental margin does not extend as far as 200 miles
from the shore, natural prolongation, which in spite of its physical
origins has throughout its history become more and more a complex
and juridical concept, is in part defined by distance from the shore,
irrespective of the physical nature of the intervening sea-bed and
subsoil. The concepts of natural prolongation and distance are there-
fore not opposed but complementary ; and both remain essential
elements in the juridical concept of the continental shelf.” ([bid.)

3. While admitting, on the one hand, that —

“title depends solely on the distance from the coasts of the claimant
States of any areas of sea-bed claimed by way of continental shelf, and
the geological or geomorphological characteristics of those areas are
completely immaterial” (para. 39),

the Court is unable, on the other hand, to accept the conclusion that —

“the new importance of the idea of distance from the coast has, at any
rate for delimitation between opposite coasts, in turn conferred a
primacy on the method of equidistance” (para. 42),

or that —

“even as a preliminary and provisional step toward the drawing of a
delimitation line, the equidistance method is one which must be
used, or that the Court is ‘required, as a first step, to examine the
effects of a delimitation by application of the equidistance method’ ”
(para. 43).

The present Judgment states that —
“fsluch a rule would come near to an espousal of the idea of ‘absolute
proximity’, which was rejected by the Court in 1969... and which has

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since, moreover, failed of acceptance at the Third United Nations
Conference on the Law of the Sea” (ibid. ).

The Judgment continues :

“That a coastal State may be entitled to continental shelf rights by
reason of distance from the coast . . . does not entail that equidistance
is the only appropriate method of delimitation ... nor even the only
permissible point of departure.” (Ibid.)

4. The Judgment expresses the view that “{State] practice, however
interpreted, falls short of proving the existence of a rule prescribing the use
of equidistance . . . as obligatory” (para. 44 ; emphasis added). The Judg-
ment nevertheless acknowledges “impressive evidence that the equidis-
tance method can in many different situations yield an equitable result”
(para. 44). Then the Judgment goes on to the following dictum:

“Judicial decisions are at one. . . in holding that the delimitation of
a continental shelf boundary must be effected by the application of
equitable principles in all the relevant circumstances in order to
achieve an equitable result.” (Para. 45.)

The present Judgment apparently espouses the conclusion of the 1982
Judgment that, even though the reference to “equitable principles” had
been eliminated from the final draft of the 1982 Convention, the Court
“was ‘bound to decide the case on the basis of equitable principles’ as well
as that “The result of the application of equitable principles must be
equitable’ U.C.J. Reports 1982, p. 59, para. 70)” (para. 28).

The Judgment states :

“The normative character of equitable principles applied as a part
of general international law is important because these principles
govern not only delimitation by adjudication or arbitration, but also,
and indeed primarily, the duty of Parties to seek first a delimitation by
agreement, which is also to seek an equitable result.” (Para. 46.)

On the other hand, the Court shows inconsistent severity towards the
similarly absent “equidistance/special-circumstances” rule on the ground
that this rule was not mentioned in Article 83 of the 1982 Convention. This
Judgment appears to offer “equity” as the approved antithesis to “equi-
distance”.

+

5. As suggested above, the present Judgment does show some under-
standing of the impact of the exclusive economic zone on the continental
shelf and the criterion of distance for the régime of the continental shelf.
This is an improvement of the position taken by the Court in 1982. I recall

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that in my dissenting opinion then I expressed my critical view as fol-
lows :

“Tt 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-fish-
ing rights.” (1 CJ. Reports 1982, p. 157, para. 1.)

In the present case, in contrast, the Judgment pays some heed to the
concept (para. 33). The second improvement in the present Judgment is
related to the attention, if not approval, it gives to the method of equi-
distance, for in 1982 I had felt bound to state :

“The Judgment does not even attempt to prove how the equidis-
tance method, which has often been maintained to embody a rule of
law for delimitation of the continental shelf, would lead to an ine-
quitable result. Indeed, it gives that method rather short shrift.”
U.C.J. Reports 1982, p. 157, para. 1.)

6. Even so, with regard to the principles and rules applicable to the
delimitation of the continental shelf, I cannot but say that my understand-
ing of the development of the law of the sea over the past decades is
different from that of the Court. First, the Judgment undermines its own
acknowledgment of the criterion of distance in the régime of the conti-
nental shelf by the statement that the notions of natural prolongation and
distance are complementary. At this point I’return briefly to the point
made by the Judgment in paragraph 34, which for ease of reference I quote
again in part below :

“natural prolongation, which in spite of its physical origins has
throughout its history become more and more a complex and juridical
concept, is in part defined by distance from the shore, irrespective of
the physical nature of the intervening sea-bed and subsoil. The con-
cepts of natural prolongation and distance are therefore not opposed
but complementary ; and both remain essential elements in the juri-
dical concept of the continental shelf.”

I find it difficult to appreciate the meaning of “in part” within this quo-
tation, because it suggests that, “in part”, natural prolongation may be
established by factors other than “distance”, and what can those be if not
the physical aspects swept aside by “irrespective” ? The passage thus
would seem to make better sense without the qualification “in part” — a
qualification which might have been necessary had the Court wished to
analyse Article 76 of the 1982 Convention (see para. 61 below), but in fact
the Court has at this point virtually acknowledged that the sense of that
Article must be understood as compatible with the criteria for the limits of
the exclusive economic zone. In those circumstances, to say that “the
concepts of natural prolongation and distance ... are complementary”

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and that both remain “essential elements” is surely, at least within the
200-mile context, no more than a method of keeping “natural prolonga-
tion” alive by artificial respiration. This seems to be borne out in para-
graph 39 of the Judgment (further discussed in para. 62 below), which is
quite happy to consecrate the distance criterion and to describe the tra-
ditional physical criterion of “natural prolongation” — including the pre-
sence of a rift zone — as “completely immaterial”. In any case, how can a
criterion be “complementary” to what it establishes ? It is difficult for me
to understand how the concepts of natural prolongation and distance can
be considered as being complementary to each other. The present Judg-
ment, to the extent that it relies on the notion of natural prolongation
employed in the Judgment of 1969, fails to allow full weight to the simple
facts that that Judgment was delivered before the commencement of
UNCLOS III, when both the distance criterion in the concept of the
continental shelf and the new institution of the exclusive economic zone
were unknown, and that the new era of the law of the sea was merely
dawning around the turn of the decade, i.e., from the 1960s to the
1970s.

7. Secondly, the Judgment applies equitable principles without recog-
nizing that the method of equidistance has never been proposed as a
counter-concept to the rule of equity and that this method has been
considered by adjudicators to lie well within the framework of the rule of
equity. The way in which the “equidistance/special-circumstances” rule
has played, or is playing, an important role in the delimitation of the
continental shelf in the recent developments in the iaw of the sea, still
giving satisfaction to the concept of equity in the contemporary law of the
sea, will be seen in Chapter II.

2. Misconstruction of the “Relevant Area” for the Operation of the
Judgment

8. Itisin some cases a difficult and dubious task to define the “disputed
areas”, “relevant areas” or “areas of delimitation” for the purpose of
delimiting the continental shelf of two or more States, and the difficulty
and dubiety are all the greater when the sea area washing the shores of the
parties is also surrounded by other States which have not become parties to
the dispute. The present case was not one in which the “area”, being simply
an aggregate of the “area-to-be” appertaining to Libya and the “area-
to-be” appertaining to Malta, did not affect any third State and so only
concerned these two Parties in dispute. In this respect it was quite different
from the Delimitation of the Maritime Boundary in the Gulf of Maine Area
case (where only a division between Canada and the United States was at
issue) and even from the Continental Shelf (Tunisia/ Libyan Arab Jama-
hiriya) case (where the Court could plausibly confine itself to a certain
limited area without affecting the interests and claims of any third States).

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The region in which the line of delimitation between Libya and Malta was
to be drawn might include some zones where a third party might also be
interested.

9. In describing “the area in which the continental shelf delimitation,
which is the subject of the proceedings, has to be effected”, the Judgment is
very careful not to define, “in geographical terms”, “the area in dispute
between the Parties” (para. 14). However, in explaining the task of the

Court, the Judgment takes a positive line in so defining the “area” :

“[T]he decision must be limited to a geographical area in which
no... claims [of a third State] exist. It is true that the Parties have in
effect invited the Court ... not to limit its judgment to the area in
which theirs are the sole competing claims ; but the Court does not
regard itself as free to do so, in view of the interest of Italy in the
proceedings.” (Para. 21.)

“The present decision must . . . be limited in geographical scope so
as to leave the claims of Italy unaffected, that is to say that the
decision of the Court must be confined to the area in which, as the
Court has been informed by Italy, that State has no claims to conti-
nental shelf rights.” (Ibid)

“A decision limited in this way does not signify either that the
principles and rules applicable to the delimitation within this area are
not applicable outside it, or that the claims of either Party to expanses
of continental shelf outside that area have been found to be unjus-
tified.” (Ibid.)

“The limits within which the Court, in order to preserve the rights of
third States, will confine its decision in the present case, may thus be
defined in terms of the claims of Italy.” (Para. 22.)

“(T]he Court ... will confine itself to areas where no claims by a
third State exist.” (Ibid.)

Accordingly, the limits of the “area” are defined by the meridian 15° 10’ E,
“which has been found by the Court to define the limits of the area in which
the Judgment can operate” (para. 68), simply corresponding to the western
limit of the Italian claim in the Ionian Sea.

10. In stating the task of the Court in paragraphs 20-23, the present
Judgment makes use of such expressions as “claims by Italy”, “interest of
Italy” or the like at least 11 times and the expression “claims of a third
State”, or the like, about 10 times. For the simple reason that “it has not
been suggested by either of the Parties that [the Italian claims] are

obviously unreasonable” (para. 23), the Court confines its task to a very

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narrowly limited “area”. It is astonishing that the Judgment, speaking of
the claims of Italy in the region outside the “area”, does not make a single
reference to the corresponding Maltese claim in the same region. For that
and other reasons I regret that the Court rejected Italy’s application for
permission to intervene. In the Court’s view, as stated by the Judgment of
21 March 1984, the rights claimed by a third State would be safeguarded by
Article 59 of the Statute (Z.C.J. Reports 1984, p. 26, para. 42), whereas I
expressed my view that

“Article 59 of the Statute may not be accepted as guaranteeing that
a decision of the Court in a case regarding the title erga omnes will not
affect a claim by a third State to the same title.” (Ibid, p. 109,
para. 37.)

The Judgment thus proceeds as it might have done had the intervention of
Italy been admitted and its claim approved, i.e., by defining the area of
decision in terms of the claims of Italy.

11. I hold the view that, with reference to the “area”, the Judgment is
mistaken in confining its overview of its task to a narrow area, merely in
order not to risk interfering with a third State’s claim. By so doing, the
Court loses sight of the scope of the dispute between the two original
Parties, thus falling short of that full exercise of jurisdiction which they are
entitled to expect. I have repeatedly pointed out that I disagree with the
previous Judgments rendered by the Court in which the whole argument
hinged on the definability of the “relevant areas” : I refer to my separate
opinion in the Judgment on the application by Malta for Permission to
Intervene in the Tunisia/Libya case (I.C.J. Reports 1981, pp. 33-34, paras.
21-23), and my dissenting opinions appended to the 1982 Judgment in that
same case (L.CJ. Reports 1982, pp. 249-251, paras. 147-148) and the
proceedings on the Application by Italy for Permission to Intervene in the
present case (I.C.J. Reports 1984, pp. 109-110, paras. 38-39). May I be
allowed to quote my concluding words in my dissenting opinion in the
Tunisia/ Libya case :

“TY would like before concluding to stress one very important
advantage of the equidistance method ... It lies in the fact that its
inherent property of equity remains constant whatever the ‘area rele-
vant 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.” (1 CJ. Reports 1982,
p. 273, para. 188.)

12. The concept of the “area” is also pressed into service in a different
context, namely that of calculating proportionality between the lengths of
coastline and the area to be divided. This problem will be dealt with in the
next section.

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3. Misapplication of the Proportionality Test

13. The proportionality test plays a significant role concerning the
suggested delimitation line. According to the Judgment, the role of pro-
portionality “is to be employed solely as a verification of the equitableness
of the result arrived at by other means” (para. 66). The Court is of the view
that —

“[s]uch a test [of proportionality] would be meaningless in the absence
of a precise definition of the ‘relevant coasts’ and the ‘relevant area’ ”
(para. 67).

The Judgment also states :

“{T]here is no reason of principle why the test of proportionality,
more or less in the form . . . [of] the identification of ‘relevant coasts’,
the identification of ‘relevant areas’ of continental shelf, the calcula-
tion of the mathematical ratios of the lengths of the coasts and the
areas of shelf attributed, and finally the comparison of such ratios,
should not be employed to verify the equity of a delimitation.”
(Para. 74.)

14. However, if the Court abandons in this case the exercise of deter-
mining “relevant areas” and “relevant coasts” for the test of proportion-
ality, this is due to two alleged practical difficulties : first, because of “the
geographical context . . . [being] such that the identification of the relevant
coasts and the relevant areas is so much at large that virtually any variant
could be chosen” ; secondly, because of “the existence of claims of third
States” by which “the area to which the Judgment will in fact apply is
limited” (ibid.). In connection with the latter point, the Court is aware of
“the dangers of reliance upon a calculation in which a principal component
has already been determined at the outset of the decision” (ibid.) because
“{t]o apply the proportionality test simply to the areas within [the] limits
[determined by claims of third States] would be unrealistic” (ibid). Yet on
the other hand the Judgment further notes two serious difficulties which :
would be involved by the application of “proportionality calculations to
any wider area”. Thus it appears totally to abandon the making, for the
sake of proportionality, of any calculation on the basis of relevant areas
and relevant coastlines, in spite of its previous contention, as quoted
above, that “[s]uch a test [of proportionality] would be meaningless in the
absence of a precise definition of the ‘relevant coast’ and the ‘relevant
area’ ” (para. 67). What the Judgment finally states, at the most, in con-
nection with the test of proportionality, is —

“(I}f the Court turns its attention to the extent of the areas of shelf
lying on each side of the line, it is possible for it to make a broad
assessment of the equitableness of the result, without seeking to define
the equities in arithmetical terms. The conclusion to which the Court
comes in this respect is that there is certainly no evident disproportion
in the areas of shelf attributed to each of the Parties respectively such

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that it could be said that the requirements of the test of proportion-
ality as an aspect of equity were not satisfied.” (Para. 75.)

*

15. I can hardly believe that, without defining the relevant area and the
relevant coasts, and thus without indicating any basic figures for compari-
son of proportionality, the Court can — on its own terms — successfully
verify the equitable result to be derived from the suggested delimitation
line. The impression is given that the Court, becoming aware of its diffi-
culty in defining the relevant area and the relevant coast, abandoned all
reference to the figures which were to be a basis for the proportionality test.
Is it not a paradox for the Judgment to suggest the necessity of defining the
relevant area and relevant coastlines for the verification of equity as a
result of the division of the area, and then to abandon this task on the
ground that such an exercise would be impossible ? In applying the test of
proportionality between the expanse of the allotted sea-bed areas and the
length of coastlines, it is certainly essential to define in advance all the
areas to be delimited and coastlines to be measured. Yet for this purpose
both — areas and coastlines — ought to be exhaustive for both Parties as
well as exclusive of the interests of any third party. A definition of that area
which excludes any of the expanses to which one or other Party may
potentially lay reasonable claim will involve a failure to exercise jurisdic-
tion and result in distortion. Indeed this is particularly so where the
calculations of proportions are involved, for who is to say what the ratio
might have been if all such areas were taken into account ? Such a defi-
nition thus becomes arbitrary and meaningless. The simple mathematical
fact should not be overlooked that the outcome of a partial test of pro-
portionality, i.e., one leaving out of account some areas to which the States
concerned may be entitled in the immediate vicinity, cannot give any
sound indication of the eventual equity of the resultant situation : a fact
which the Judgment, in effect, acknowledges (para. 74). But the Judgment
should in my view have gone on to recognize that, however equitable a
solution may look in the present, deliberately restricted context, there is no
guarantee that it will continue to look equitable once the further delimi-
tations are effected, eventually establishing the total shelf areas of both the
Parties to the present case. Meanwhile, the Court may have failed to help
set the scene in the best way possible. After all, what will matter in the long
run, from the viewpoint of international justice, is whether all States in the
area receive their entitlement in terms of applicable law.

16. The Judgment took the figures of 24 miles’ length and 192 miles’
length, representing respectively “the coast of Malta from Ras il-Wardija
to Delimara Point, following straight baselines but excluding the islet of
Filfla”, and “[t]he coast of Libya from Ras Ajdir to Ras Zarruq, measured
following its general direction”, as a basis in order “to justify the adjust-
ment of the median line so as to attribute a larger shelf area to Libya”

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(para. 68). As proportionality cannot be spoken of without figures for the
area and the coastlines, I should mention that the relationship between the
areas on each side — Maltese and Libyan — of the delimitation line which
the Judgment now suggests, appertaining respectively to Malta and Libya
within the area delimited by two side-lines connecting the points on each
coast as referred to above, is, I am told, 1 to 3.8 if account is taken of the
coastline the Judgment mentions as a basis for calculating “a considerable
disparity between their lengths”. With my reservations concerning the area
as indicated above, however, I would suggest a hypothetical trapezium in
which the ratio of the upperside to the base is | to 8, with the length of each
lateral side being the same as the length of the base and the upperside
facing the centre of the base (this is analogous to the presumption in the
Judgment). Here the genuine equidistance line (which will be curved and
not a straight parallel to the base) will produce an area divided in the ratio
of 1 to 2.3 or slightly higher. If the base of this trapezium is further
extended to one side so that the total length of the base is 24 times greater
than the upperside (this is analogous to the situation in which the coastline
of Libya from Ras Ajdir to Ras el-Hilal is counted), the genuine equi-
distance line will produce a division of the area in the ratio of 1 to
approximately 4. In addition, turning from a hypothetical trapezium to the
actual case, if the huge pocket hidden behind the notional straight line as a
base for the Libyan coast is counted, that is, the Gulf of Sirt, the difference
in ratio will be enormous.

17. Whether or not any one of these ratios — 1 to 3.8 (as a result of the
division of the area by the delimitation line proposed by the Court) or 1 to
2.3 or 1 to 4 (as a consequence of the equidistance line in my hypothetical
trapezium) — appears more or less equitable is a moot point. The Judg-
ment, however, did not attempt to prove how the application of the
equidistance method leading to such ratios would give an inequitable
result. In this respect I must point out that the very concept of the median
line in the case of opposite States implies a proportional ratio for the
division of the area, instead of necessarily guaranteeing equality. It is for
those who find this fact inconvenient to indicate what degree of coast-
length disparity should trigger an adjustment, and why.

18. In final analysis, the Judgment seems to make a grave error in
applying the concept of proportionality used in the 1969 Judgment of the
Court to this present case. This concept was used by that Judgment for the
verification of geographical equity in areas where the surrounding States
faced an established median line and a central point in the oval of the
North Sea. In other words, what the Court intended to say in 1969 was that
in such specific circumstances, in which the States concerned were located
as adjacent States in similar situations, but where the existence of a marked
concave or convex coastline produced a somewhat distorting effect, the
proportion of the length of the coast as rectified by its general direction —
or, if I may call it, as I did in my argument in 1968, its “coastal fagade” —

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was in principle useful in the verification of geographical equity (see para.
69 below). The 1969 Judgment nowhere implied the possibility of generally
applying the concept of proportionality in other cases, particularly in cases
of delimitation between opposite States. The area in the Central Mediter-
ranean Sea falling within the 200-mile distance from the coast, not only of
the two Parties but also of some other countries, is so extensive that Libya
and Malta both face wide areas in which the interests of those third States
may also be involved. This is certainly not a case like the North Sea
Continental Shelf cases, in which a predetermined area has to be divided
between or among the Parties to the exclusion of others and without
relevance to those parts outside the area in question. Misapplication of the
test of proportionality is also to be seen in the 1982 and 1984 Judgments, as
I shall explain in Chapter III.

4. Maladjustment of “Equidistance” Line

19. The Court attempts first to “make a provisional delimitation by
using a criterion and a method both of which are clearly destined to play an
important role in producing the final result” (para. 60),

“[and] then examine[s] this provisional solution in the light of the
requirements derived from other criteria, which may call for a cor-
rection of this initial result” (ibid).

A median line between Libya and Malta is first drawn which is “only
provisional” (para. 63). The Judgment states that :

“to achieve [an equitable result] the result to which the distance
criteria leads must be examined in the context of applying equitable
principles to the relevant circumstances” (ibid. ).

After excluding the island of Filfla in the calculation of the provisional
median line between Malta and Libya, the Judgment considers “whether
other considerations, including the factor of proportionality, should lead
to an adjustment of that line being made” (para. 64). To take another
expression from the Judgment, the Court, after “establishing ... the
median line as the provisional delimitation line” (para. 65), “reflect[ed] [a
weight in the assessment of the equities of the case] in an adjustment of the
equidistance line” (ibid.), or took “a median line (ignoring Filfla as a
basepoint), as the first step of the delimitation” and then “transpos{ed]
the median line northwards” (para. 73). Again quoting the Judgment,
“[hlaving drawn the initial median line, the Court has found that that
line requires to be adjusted” (para. 78).

20. The initial equidistance line is adjusted, according to the Judg-
ment, to achieve “an equitable result” (para. 63), or to reflect “a weight
in the assessment of the equities of the case” (para. 65). For this pur-
pose the Judgment attempts to examine a// the relevant circumstances,

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namely — “the very marked difference in the lengths of the relevant coasts
of the Parties, and the element of the considerable distance between those
coasts” (para. 66). In the course of the delimitation process “the existence
of a very marked difference in coastal lengths” is taken note of and “the
appropriate significance [is attributed] to that coastal relationship”,
although the Judgment does not seek to define the existence of that
difference “in quantitative terms which are only suited to the ex post
assessment of relationships of coast and area” (ibid). Yet the Judgment,
after thus measuring the Maltese coast as 24 miles long and the relevant
Libyan coast as 192 miles long, finds that “this difference is so great as to
justify the adjustment of the median line so as to attribute a larger shelf
area to Libya” (para. 68). Apparently for this reason the Court —

“finds it necessary, in order to ensure the achievement of an equitable
solution, that the delimitation line . . . be adjusted so as to lie closer to
the coast of Malta” (para. 71).

21. The Court finds it appropriate first “to establish what might be the
extreme limit of such a shift” (para. 72). The Judgment, which had pre-
viously been much too restrictive in its view of the area the Court was
entitled to consider, saw fit to identify the delimitation of the continental
shelf between Libya and the island State of Malta, seen in the “general
geographical context” (para. 69), as “a delimitation between a portion of
the southern littoral and a portion of the northern littoral of the Central
Mediterranean” (ibid. ). It treated the Maltese islands “as a minor feature of
the northern seaboard of the region in question, located substantially to
the south of the general direction of that seaboard” (ibid.). Thus the
Judgment took “a notional median line between Libya and Sicily”
(para. 72) as the extreme limit of such a shift.

22. The Judgment argues :

“Within the area with which the Court is concerned, the coasts of
the Parties are opposite to each other, and the equidistance line
between them lies broadly west to east, so that its adjustment can be
satisfactorily and simply achieved by transposing it in an exactly
northward direction.” (Para. 71 ; emphasis added.)

The Judgment suggests, as a reference line, the 15° 10’ E meridian which,
corresponding as it does to the Italian claim, is reputed to constitute the
eastern limit of the “relevant area”, and then undertakes to shift the
delimitation line in terms of its intersection with this reference line. The
median line between Malta and Libya intersects the 15° 10’ E meridian at
about 34° 12’N, and the notional median line between Libya and Sicily
intersects it at about 34° 36’ N, so the Court suggests that “[a] transposi-
tion northwards through 24’ of latitude of the Malta-Libya median line
would therefore be the extreme limit of such northward adjustment” (para.
72). Within this margin of 24’ on the 15° 10’ meridian, account is taken of
the following relevant circumstances :

“these are first, the general geographical context in which the islands

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of Malta appear as a relatively small feature in a semi-enclosed sea ;
and secondly, the great disparity in the length of the relevant coasts of
the two Parties” (para. 73).

These circumstances are alleged to “indicate that some northward shift of
the boundary line is needed in order to produce an equitable result”
(ibid.).

23. Despite recognizing that the process it applies is not one “that can
infallibly be reduced to a formula expressed in actual figures” (ibid.), the
Court concludes that “a boundary line that represents a shift of around
three-quarters of the distance ... achieves an equitable result in all the
circumstances” (ibid.). Thus a northward shift of 18’ on the 15° 10’ E
meridian as a reference line is suggested, resulting in a delimitation line
intersecting the reference line at 34° 30’ N. By a mere coincidence — a fact
which the Judgment does not mention — this point is the same as the
southwestern corner of the Italian claim in the Ionian Sea.

*

24. The mere coincidence that the intersection point of the delimitation
line and the reference line happens to have the same location as the
southwestern limit of the Italian claim in the Jonian Sea is a surprising
geographical fact. But, this apart, shifting the intersection point of the
delimitation line on the meridian 15° 10’ E is geographically mistaken. If
the delimitation line is shifted along the reference line on the meridian
15° 10’ E, it will make no sense in terms of either equidistance or propor-
tional distance from Malta and Libya. Certainly the particular point,
34° 12’ N, on the reference line is an equidistant point between Libya and
Malta, but it is equidistant only in relation to Delimara Point on the
Maltese side and Cape of Homs on the Libyan coast. If the equidistance
line is to be shifted to change the ratio, this shifting should properly be
carried out on the line directly connecting two salient points on each coast,
but not on the chosen reference line, which is essentially irrelevant to the
geographical situation between the two coasts. In the margin on the ref-
erence line between 34° 12’ N, as a pure and simple equidistance between
Libya and Malta, and 34° 36’N, as a point of notional equidistance
between Italy and Libya, there is a difference of 24’, that is, 24 miles on the
reference line — but on this line only ; consequently, it is erroneous to
suppose that the choice of the reference line was a matter of indifference.
The Court suggests a point of 34° 30’ N, thus shifting the delimitation line
by 18’, that is, 18 miles, on the reference line. It will certainly be possible to
move the delimitation by 18’, or 18 miles, on all meridians. Yet this does
not mean that the line has been shifted by three-quarters the width of the
margin (that is, 18’ in 24), since the distance between the intercontinental
median line and the pure and:simple median line between Malta and Libya
varies according to each meridian, so that the distance at each meridian is
not always 24 miles. Moreover, the true distance contained within the

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margin, i.e., the shortest distance, which except on the reference line itself
is not to be found in a north-south direction, will also vary from place to
place.

25. At any rate, there is no convincing ground whatsoever for shifting
the delimitation line along a meridian which in essence bears no geogra-
phical relation to Libya and Malta, because the reference line has nothing
to do with the distance between the Maltese and Libyan coasts and is
dictated merely by a third party claim. In my view, the Judgment shows
little grasp of the geography, and the conventional lattice of north-south/
east-west cartography is not relevant to the division of the area between
border States. Latitude and longitude, though important for locating a
fixed point on the atlas, cannot be the determining factor in dividing the
area between two States. The suggestion made by the Judgment for the
delimitation line is based simply on the illusion created by the traditional
north-south/ east-west view of the atlas, and thus ultimately on the plane of
the earth’s rotation, a factor which has yet to receive conscious recognition
in international law. A similar situation was also created by the Judgment
in the Tunisia/ Libya case (see para. 72 below).

26. The Judgment states that the suggested line “that represents a shift
of around three-quarters of the distance between the two outer para-
meters... achieves an equitable result in all the circumstances” (para. 73)
and that the location of a line is determined “which would ensure an
equitable result between [the Parties]” (para. 78). Very little is revealed
about the reasoning on the basis of which the Court finds the line “equi-
table”. The Judgment admittedly states that the initial median line is
adjusted “in view of the relevant circumstances of the area” (ibid). Yet
“the considerable disparity between the lengths of the coasts of the Par-
ties” and “the distance between those coasts” are hardly relevant to the
point of being circumstances justifying an “adjustment”. It must be con-
cluded that the Judgment in fact employs “proportionality” not for the
purpose of verification of the equitable result, but as a criterion for
drawing the delimitation line. The Judgment itself states :

“Tf the coast of Malta and the coast of Libya from Ras Ajdir to Ras
Zarrug are compared, it is evident that there is a considerable dis-
parity between their lengths, to a degree which, in the view of the
Court, constitutes a relevant circumstance which should be reflected
in the drawing of the delimitation line.” (Para. 68.)

27. Let me now turn to an even more important point in connection
with the northward adjustment of the initial median line. The Judgment
suggests that this line should be “adjusted” or “transposed”. In drawing
the line between Malta and Libya, the Court did not give full effect to the
existence of Malta itself; thus the line drawn cannot in any sense be a
median line or equidistance line between the Parties. The technique of the

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present Judgment involves taking the entire territory of one Party as a
special circumstance affecting a delimitation which the Court has no call to
make and which excludes that very Party ! Indeed, if Malta is to be given
partial effect, there is theoretically no need to consider the Malta/Libya
median line at all : it becomes a mere convenience enabling the notional
intercontinental Sicily/ Libya median line to be more easily adjusted. The
Judgment cannot be regarded as adjusting or transposing the Malta/Libya
equidistance line, but simply as giving it short shrift. It must be pointed out
that this line, once adjusted/transposed, is deprived of all the properties
inherent in the concept of equidistance. The suggested line is simply a
substitute for or a replacement of the median line, but cannot be an
“adjustment” of the median line between Malta and Libya. If there is any
median line to which the “adjusted” line bears some resemblance, it is —
possibly — a median line between Sicily and Lihva, but certainly not one
between Libya and Malta.

28. The present Judgment appears to me to misunderstand the impli-
cations of the “half-effect” theory used in the 1977 Decision of the Anglo-
French Arbitration. In that Decision partial effect was allowed to a tiny part
of one party’s territory, viewed as a special circumstance relevant to both
parties for the purpose of drawing an equidistance line. Obviously, in that
Arbitration, after a genuine equidistance line had been drawn, a suggestion
was made for a correction of the United Kingdom baseline lest the some-
what isolated location of the small dependent islands of Scilly should
greatly and unreasonably affect the delimitation of the whole area. This
was quite different from the present case, where partial effect is given to the
country itself for which a delimitation was to be drawn (see para. 45
below).

5. Regarding Geography

29. The Judgment appears to lack a proper understanding of geo-
graphy, particularly in connection with the concept of the oppositeness of
coasts and the method of equidistance. In my understanding, the opposite
coast means, as a concept of geography, the coast which is directly facing.
In the Central Mediterranean, in relation to Malta and Libya, the opposite
coast means the entire southeast coast of the islands of Malta, and Ras
Ajdir to Ras el-Hilal in Libya. There is no ground for the Judgment to take
the point of 15° 10’ E or Ras Zarruq for the eastern limit of the coast of
Libya as the opposite coast of Malta from the geographical point of view.
This does not mean that the coast of Libya as far as Ras el-Hilal is opposite
only to Malta, for it is certainly opposite also to Italy and other States. The
error of the Judgment exists in regarding the relation of opposite coasts
only in terms of the two Parties to the exclusion of all other States.

30. Secondly, the Court seems to misunderstand from the outset the

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practical application of the method of equidistance. A median line is not
simply a compromise between opposing configurations, nor the average of
the lines that can be drawn parallel to the opposing coasts or to the straight
baselines. Determinant in drawing an equidistance line are salient points
or convexities on the coastline, which are geometrically determined, not
artificially picked up, as the drawing of the delimitation line progresses. If
geography is respected, the ascertainment of objective “equidistance” by
means of the geographical or geometrical method of plotting equidistance
will be quite independent of the subjectively defined “relevant coasts”.
Reference should have been made to Shalowitz’s Shore and Sea Boundar-
ies, Volume I (1962), particularly at pages 232-235, and to Hodgson and
Cooper, “The Technical Delimitation of a Modern Equidistance Boun-
dary”, Ocean Development and International Law, Volume 3, No. 4, 1976,
pages 361 ff.

CHAPTER IJ. REAPPRAISAL OF THE “EQUIDISTANCE/ SPECIAL-
CIRCUMSTANCES” RULE

1. Introduction : Failure of UNCLOS III in 1982 to Indicate Positive
Rules for the Delimitation of the Continental Shelf

31. The 1982 United Nations Convention on the Law of the Sea is not
yet a binding instrument, since 46 more ratifications have to be secured
before it comes into force. Yet, in seeking to ascertain the principles and
rules of the law of the sea today, it is unthinkable to overlook all the efforts
deployed in the great workshop of UNCLOS ITI, involving an unprece-
dented number of personnel from all nations of the world over a uniquely
protracted period of gestation (since 1967, when the ad hoc United Nations
Sea-bed Committee was first set up), and culminating in a most compre-
hensive text of 320 articles. I am second to none in appreciating the
magnificent achievements of the Conference. However, I cannot persuade
myself that the Convention, in its relevant provision, is so drafted as to
suggest any positive rule specific to the delimitation of the continental
shelf. The Convention reads as follows :

“Article 83

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

13]
14] ' CONTINENTAL SHELF (DISS. OP. ODA)

32. This text may be analysed in the following ways. First, the Con-
vention provides that “(t]he delimitation of the continental shelf... shall
be effected by agreement”. This simply represents the procedural aspect of
the problem and implies that any unilateral claim to delimit the continen-
tal shelf would not be regarded as valid under international law. Its effect is
thus merely to confirm that a general rule for the conduct of inter-State
relations is applicable to the subject of delimitation. It in no way indicates
a specific course of action. The ostensible solution that, since there is no
obligatory rule applicable in all cases, the delimitation is to be effected by
agreement is no solution at all. The rule calling for delimitation by agree-
ment thus remains simply a rule concerning procedure and cannot con-
stitute a rule indicating a method of delimitation.

33. This procedural rule is however qualified by the addition of two
parameters, namely, “on the basis of international law, as referred to in
Article 38 of the Statute of the International Court of Justice” and the
teleological rider : “in order to achieve an equitable solution”. However,
the simple invocation of “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 rules from the entire panoply of cus-
tomary, general, positive and conventional law are of particular signifi-
cance. Similarly, the prescription of an equitable solution as the goal offers
not the slightest clue as to what constitutes an equitable solution in the case
of shelf delimitation, and no method for reaching such an equitable solu-
tion is specified. What is more, given the contractual freedom of States,
each party to an agreement must be deemed to regard it as equitable, or at
the very least to have waived the right to seek to undo it on grounds of
inequity. Hence the reference to equity in Article 83, paragraph 1, while
seeming to convey a norm of a legal nature, is, as a legal prescription,
otiose : at most it can be held to prescribe the frame of mind in which the
negotiators should approach their task.

2. The “Equidistance/Special-Circumstances” Rule for the Delimitation
of a Single Continental Shelf Homogeneous in Terms of the 200-Metre
Depth Criterion

(i) The Rule in the Geneva Convention on the Continental Shelf

34. The failure of UNCLOS III to suggest any rules concerning the
delimitation of the continental shelf does not mean that such rules had not
existed thitherto. On the contrary, delimitation of the continental shelf had
already been provided for, nearly a quarter of a century before, through an
article in the Geneva Convention on the Continental Shelf. The relevant
provisions of the 1958 Convention read :

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142 CONTINENTAL SHELF (DISS. OP. ODA)

“Article 6

1. Where the same continental shelf is adjacent to the territories of
two or more States whose coasts are opposite each other, the boun-
dary 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 agreement,
and unless another boundary line is justified by special circumstances,
the boundary shall be determined by application of the principle of
equidistance from the nearest points of the baselines from which the
breadth of the territorial sea of each State is measured.” (Emphasis
added.)

35. The year of 1958 was too early to ascertain the principles and rules
of customary international law on certain aspects of the continental shelf,
the régime of which had only emerged during the post-war period. Yet the
equidistance rule for the delimitation of the continental shelf had already
been suggested in the 1953 draft of the International Law Commission and
was taken over in the Commission’s final draft in 1956. During UNCLOS I
in 1958 the Netherlands-United Kingdom joint proposal, which was prac-
tically identical to the Commission’s draft — with certain additional pro-
visions which are irrelevant in the present context — was put to a vote. The
United Kingdom, as a sponsoring country, explained the reasoning behind
the proposal, as follows :

“[ 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
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.) (LCJ. Reports 1982, pp. 187-188,
para. 52.)

The proposal was adopted by 36 votes to none with 19 abstentions, in the
Fourth Committee, and then finally approved by 63 votes to none, with
only two abstentions, in the plenary. The facts that in 1958 UNCLOS I
(attended by most of the then-existing independent States) adopted this
text, based upon the draft which the International Law Commission had
been preparing ever since 1951, that the provision has continued in being

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as a conventional rule since 1964 (when the 1958 Convention came into
force), and is valid for 53 nations today, should not have been ignored in
our considerations.

36. In providing that “the boundary of the continental shelf... shall be
determined by agreement” the 1958 Convention, of course, already laid
emphasis on the importance of agreement between the States concerned.
Yet, unlike the 1982 Convention, the 1958 Convention did indicate the
positive rules for the delimitation of the continental shelf. In my view, this
point has generally been misunderstood. The implicit intention of Article 6
was, 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
opposite States should be the median line and in the case of adjacent States
should be determined by application of the equidistance principle. In other
words, the Convention may be interpreted to mean that it suggested the
“equidistance/special-circumstances” method as a normal basis of agree-
ment as well as of third-party determination.

(ii) The 1969 Judgment of the Court in the North Sea Continental Shelf
cases

37. In the North Sea Continental Shelf cases the Court did admit the
value of the “equidistance/special-circumstances” rule not, it is true, as a
rule of customary international law but only as a conventional rule. It
stated that —

“the [1958] Convention did not embody or crystallize any pre-existing
or emergent rule of customary law, according to which the delimita-
tion of continental shelf areas between adjacent States must, unless
the Parties otherwise agree, be carried out on an equidistance/ special
circumstances basis. A rule was of course embodied in Article 6 of the
Convention, but as a purely conventional rule.” (7. C.J. Reports 1969,
p. 41, para. 69.)

I find it very important to realize (as the Anglo-French Court of Arbitra-
tion did in 1977) that the Court in 1969 did not deny this rule but, on the
contrary, appreciated its great value. It would seem that there are certain
misunderstandings in. this respect regarding the 1969 Judgment of the
Court. In the course of the proceedings in that case, even the Federal
Republic of Germany, which was strongly opposed to the strict application
of equidistance in those cases, had taken the view that if the rigid appli-
cation of equidistance were to be avoided, and the basis of measuring
equidistance in certain cases were to be modified, such a rule was not
objectionable. And in the outcome, the Court itself acknowledged that

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there were some advantages in the equidistance method. Thus the intrinsic
merit of an equidistance line was not as such rejected in the 1969 Judg-
ment.

38. If the equidistance method was not accepted by the 1969 Judgment,
this was apparently not because the equidistance method was per se
inapplicable, but for the reasons implied in the Judgment (para. 89) :
namely, 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 spite of the voting
of 11 to 6 in the Judgment, there did not seem to be a wide difference
between the Court’s Judgment and the dissenting opinions of several
judges in their estimation of equidistance. What was important was the
Court’s evaluation of the special circumstances which would allow depar-
ture from the strict application of equidistance. It is true that the Court
failed to specify equidistance as a rule, but in reality the factors to be taken
into account in the course of negotiations, suggested in the operative part
of the Judgment, constituted nothing but the factors which would make an
exception from the equidistance rule possible. In particular, the factors
mentioned under (1), “the general configuration of the coasts of the Parties
as well as the presence of any special or unusual features”, and (3), “the
element of a reasonable degree of proportionality ... between the extent of
the continental shelf areas appertaining to the coastal State and the length
of its coast measured in the general direction of the coastline”, were exactly
what the Federal Republic of Germany was suggesting in arguing that the
macrogeography of the coast should be taken into account in applying
the equidistance method (.C.J. Pleadings, North Sea Continental Shelf,
Vol. II, p. 195).

(il) The 1977 Decision in the Anglo-French Arbitration

39. A dispute between the United Kingdom and France on the delimi-
tation of the continental shelf between them in the English Channel and
the area stretching towards the Atlantic Ocean was presented to an ad hoc
Court of Arbitration, which delivered a unanimous decision on 30 June
1977. The Decision in this case is an example of how the “equidistance/
special-circumstances” rule can be properly interpreted and applied. Both
the United Kingdom and France being parties to the 1958 Convention, the
significance of the reservation made by France at the time of its adhesion
to the Convention and the objections to it by the United Kingdom were
issues upon which the Court gave judgment. The Court of Arbitration was
of the view that —

“the effect of applying or not applying the provisions of the Conven-
tion, and in particular of Article 6, will make not much practical

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difference, if any, to the actual course of the boundary in the arbi-
tration area (Cmnd. 7438, para. 65)”,

and that —

“the provisions of Article 6 do not define the condition for the
application of the equidistance-special circumstances rule ; more-
over, the equidistance-special circumstances rule and the rules of
customary law have the same object — the delimitation of the boun-
dary in accordance with equitable principles. In the view of this
Court, therefore, the rules of customary law are a relevant and even
essential means both for interpreting and completing the provisions
of Article 6.” ({bid., para. 75.)

While these issues are not directly relevant to the present consideration, it
may suffice here to look at how the “equidistance/special-circumstances”
rule was interpreted in this 1977 Decision.

40. The Decision properly interpreted the rule suggested in the 1958
Convention as follows :

“Article 6... does not formulate the equidistance principle and
‘special circumstances’ as two separate rules. The rule there stated in
each of the two cases is a single one, a combined equidistance-special
circumstances rule” (ibid., para. 68)

and that —

“(T]he combined character of the equidistance-special circum-
stances rule means that the obligation to apply the equidistance
principle is always one qualified by the condition ‘unless another
boundary line is justified by special circumstances’ . . . In short, the
rôle of the ‘special circumstances’ condition in Article 6 is to ensure an
equitable delimitation ; and the combined ‘equidistance-special cir-
cumstances rule’, in effect, gives particular expression to a general
norm that, failing agreement, the boundary between States abutting
on the same continental shelf is to be determined on equitable prin-
ciples .. . [E]ven under Article 6 the question whether the use of the
equidistance principle or some other method is appropriate for
achieving an equitable delimitation is very much a matter of appre-
ciation in the light of the geographical and other circumstances. In
other words, even under Article 6 it is the geographical and other
circumstances of any given case which indicate and justify the use of
the equidistance method as the means of achieving an equitable
solution rather than the inherent quality of the method as a legal norm
or delimitation.” (bid, para. 70.)

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146 CONTINENTAL SHELF (DISS. OP. ODA)

41. The Decision also gave a proper evaluation of the Court’s Judgment
of 1969 in the North Sea Continental Shelf cases :

“[The International Court of Justice] there made certain observa-
tions, which were of an entirely general character, regarding the
differing validity of the equidistance principle as a means of achieving
an equitable delimitation in different geographical situations. These
observations, to which the present Court of Arbitration in general
subscribes, indicate that the validity of the equidistance method, or of
any other method, as a means of achieving an equitable delimitation
of the continental shelf is always relative to the particular geographi-
cal situation. In short, whether under customary law or Article 6, it is
never a question either of complete or of no freedom of choice as to
method ; for the appropriateness — the equitable character — of the
method is always a function of the particular geographical situation.
(Ibid., para. 84.)

“As to the Court’s observations on the rôle of the equidistance
principle, it was far from discounting the value of the equidistance
method of delimitation, while declining to regard it as obligatory
under customary law. ‘It has never been doubted’, the Court com-
mented, ‘that the equidistance method is a very convenient one, the
use of which is indicated in a considerable number of cases’ (I.C.J.
Reports 1969, para. 22) ; and again it commented ‘it would probably
be true to say that no other method of delimitation has the same
combination of practical convenience and certainty of application’
(ibid., para. 23).” (Ibid., para. 85.)

42. In drawing the line of delimitation between the United Kingdom
and France throughout the English Channel where the coasts of the parties
are opposite each other, both parties had agreed that the boundary should
in principle be the median line and the Court of Arbitration saw —

“no reason to differ from the conclusion of the Parties that, in prin-
ciple, the method applicable in the English Channel is to draw a
median line equidistant from their respective coasts, a conclusion
which is in accordance both with Article 6 of the Convention and with
the appreciation by the International Court of Justice of the position
in customary law” (ibid, para. 87).

43. In fact, east of the Channel Islands the parties had agreed on a
“simplified” line based on the median line, as indicated by the line from
Point A to Point D on the map attached to the Decision. West of the
Channel Islands a similar agreement had been reached on a “simplified”
line based on the median line, except that, in the portion between Points F
and G, the use of the Eddystone Rock as a basis for measuring the distance
remained an issue ; the Court of Arbitration eventually took account of
that rock in drawing the median line. Even in the region where the Channel

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Islands might have some effect, in other words in the segment between -
Points D and E, both parties remained —

“agreed that the geographical and legal framework for determining
the boundary is one of States the coasts of which are opposite each
other ; and that, in consequence, the boundary should, in principle, be
the median line. They are, however, in sharp disagreement as to the
rôle which should be allowed to the coasts of the Channel Islands as
coasts of the United Kingdom ‘opposite’ to those of France.” (Cmnd.
7438, para. 146.)

The Court of Arbitration considered that the situation demanded a two-
fold solution. First, the Court decided that the primary boundary between
them should be a median line, linking Point D of the agreed eastern
segment to Point E of the western agreed segment. The second part of the
solution suggested by the Court of Arbitration was to leave the 12-mile
distance area to the Channel Islands, except where the territorial seas of the
two parties were to be delimited. In short, throughout the region of the
English Channel the equidistance line was in principle maintained except
where the Eddystone Rock was taken into account, and the Channel
Islands were disregarded in measuring the equidistance.

44, In the Atlantic region, on the other hand, where the parties were in
radical disagreement, the line was to be drawn not in the area between the
two parties but in areas of the open sea where their coasts were no longer
opposite. In this respect, the Court of Arbitration properly interpreted
the comprehensive character of Article 6 of the 1958 Convention and
stated :

“The general character of the provisions of Article 6, and the
absence of any contrary indications in the travaux préparatoires of the
Article or in State practice, appear to the Court to support the view
that the Article is to be understood as dealing comprehensively with
the delimitation of the continental shelf, and that all situations, in
principle, fall under either paragraph 1 or paragraph 2 of the Article.”
(bid. para. 94.)

“The rules of delimitation prescribed in paragraph 1 and paragraph
2 are the same, and it is the actual geographical relation of the coasts
of the two States which determine their application. What is impor-
tant is that, in appreciating the appropriateness of the èquidistance
method as a means of effecting a ‘just’ or ‘equitable’ delimitation in
the Atlantic region, the Court must have regard both to the lateral
relation of the two coasts as they abut upon the continental shelf of the
region and to the great distance seawards that this shelf extends from
those coasts.” (Jbid, para. 242.)

The Court of Arbitration then properly indicated the case of the lateral
boundary referred to, as follows : .

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148 CONTINENTAL SHELF (DISS. OP. ODA)

“Whereas in the case of ‘opposite’ States a median line will nor-
mally effect a broadly equitable delimitation, a lateral equidistance
line extending outwards from the coasts of adjacent States for long
distances may not infrequently result in an inequitable delimitation
by reason of the distorting effect of individual geographical features.
In short, it is the combined effect of the side-by-side relationship of
the two States and the prolongation of the lateral boundary for great
distances to seawards which may be productive of inequity and is the
essence of the distinction between ‘adjacent’ and ‘opposite’ coasts
situations.” (Cmnd. 7438, para. 95.)

45. Thus in the Atlantic region the Court of Arbitration suggested the
median line from Point J to Point L, the latter of which is still equidistant
from Ushant (French island) and the Scilly Isles (English islands). From
Point L westwards the Court of Arbitration was of the view that —

“account has to be taken of the distorting influence exercised by the
Scilly Isles on the course of the boundary in the Atlantic region if
those islands are given full effect in applying the equidistance method.
In principle, as the Court had decided, the boundary in the remainder
of the Atlantic region is to be determined by the equidistance method
but giving only half-effect to the Scillies. Accordingly, the line run-
ning from Point K to Point L, at which latter point the Scilly Isles
exercise their full effect, is prolonged for no more than a brief distance
westwards until at Point M it meets the equidistance line which allows
only half-effect to the Scilly Isles. From Point M, . . . the boundary
follows the line which bisects the area formed by, on its south side, the
equidistance line delimited from Ushant and the Scilly Isles and, on
its north side, the equidistance line delimited from Ushant and Land’s
End, that is, without the Scilly Isles.” (Zbid., paras. 253-254.)

In short, therefore, even in the Atlantic region where the lateral boundary
was to be drawn, equidistance played a decisive role, any departure from
which was justified by the geographical location of both the English islands
and the French islands. The issue was simply the geographical circum-
stances under which the equidistance was to be measured and the rule of
equidistance itself was never abandoned.

3. The “Equidistance/Special-Circumstances” Rule in
UNCLOS III

46. The process leading to the failure of UNCLOS III to suggest, except
for one empty provision, any positive set of rules concerning the delimi-
tation of the continental shelf, should not require any detailed explanation
here. It must however be noted that while UNCLOS III failed to suggest

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the “equidistance/special-circumstances” rule without producing any
alternative rule at its final stage, the possibility of such a rule had been far
from neglected. At the Third Session in 1975, the President of UNCLOS
III 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, though on the understanding that the texts would not prejudice
the position of any delegation and would not represent any negotiating text
of accepted compromise, and that there would be a basis for negotiation.
On the final day of the session the Chairman of the Second Committee
(which dealt with the law of the sea in general) prepared the first text in the
form of the Informal Single Negotiating Text (ISNT). The relevant pro-
vision in this text was not much different from that of the 1958 Conven-
tion in the sense that the “equidistance/special-circumstances” rule was
retained in a somewhat different form. The text of the ISNT read as
follows :

“The delimitation of the continental shelf between adjacent or
opposite States shall be effected by agreement in accordance with
equitable principles, employing, where appropriate, the median or
equidistance line, and taking account of all the relevant circum-
stances.” (UNCLOS II, Official Records, Vol. IV, pp. 162 f.)

The text of the ISNT was taken for inclusion in the Revised Single
Negotiating Text (RSNT) in 1976, and eventually became Article 83,
paragraph 1, of the Informal Composite Negotiating Text (ICNT) in 1977.
It was agreed by the Conference that the ICNT would be informal in
character and would have the same status as the ISNT and the RSNT 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.

47. There was a deadlock in UNCLOS III around 1978 on this parti-
cular point. As from that time every effort was made to obtain a compro-
mise between the two opposing groups which were divided over the pros
and cons of the equidistance line. The compromise text suggested in 1980
by the Chairman of the Seventh Negotiating Group was included in the
ICNT/Revision 2, and remained unchanged in the draft convention (In-
formal Text), that is, the ICNT/Revision 3 of 1980. The text reads :

“The delimitation of the . .. continental shelf between States with
opposite or adjacent coasts shall be effected by agreement in confor-
mity with international law. Such an agreement shall be in accordance

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with equitable principles, employing the median or equidistance line,
where appropriate, and taking account of all circumstances prevailing
in the areas concerned.” (UNCLOS II], Official Records, Vol. XIII,

pp. 77 £.)

This provision remained part of the text until August 1981. The President
of the Conference introduced — just one day before the close of the
resumed Tenth Session, which was practically the last substantive session
of the Conference — a document entitled “Proposal on Delimitation”, in
which he suggested a text which later became Article 83 of the 1982
Convention. This previously unknown text had not been discussed at ail,
but on the next day, 28 August 1981, the very last day of the session, the
Chairmen of the two opposing groups expressed their general support of
the text and the Collegium decided to incorporate it into the draft of the
Convention. In the above-mentioned document the President stated that
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).

48. What is clear from a survey of the drafting history of this specific
provision is that Article 83 of the 1982 Convention contains a catchall
provision that ought to satisfy two schools of thought, 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. Yet, while it is impossible not to admit the very limited nature
of the negotiating texts, it cannot be overlooked that the “equidistance/
special-circumstances” rule had throughout UNCLOS III been considered
as a major premise of the discussions.

4. The “Equidistance/ Special-Circumstances” Rule for the Delimitation
of a Single Continental Shelf Homogeneous in Terms of the 200-Mile
Distance Criterion

49. Thus eventually the “equidistance/special-circumstances”’ rule,
which had been adopted — though as /ex ferenda — without any objection
at UNCLOS I, and which had remained as a basis for negotiation through-
out UNCLOS III, was not specifically mentioned as a valid rule in the 1982
Convention. One might say that this was due to a change in the very
concept of the continental shelf. It may therefore be pertinent to look into
the development of the concept of the continental shelf since 1958.

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(i) New parallelism between the inner continental shelf and the outer conti-
nental shelf

50. (Text of the 1958 Convention and the 1982 Convention.) The sug-
gested outer limit of the continental shelf has greatly fluctuated in the
intervening period. The 1958 Convention provides for the definition of the
continental shelf as follows :

“Article 1. ...the term ‘continental shelf’ is used as referring (a) to
the seabed and subsoil of the submarine areas adjacent to the coast...
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.”

This definition was revised in the ISNT in 1975, the very first draft
produced by UNCLOS ITI, which reads :

“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 in 1976 and Article 76 in the ICNT in 1977. It became Article 76,
paragraph 1, of the 1982 Convention without any change. Article 76 of the
1982 Convention, with additional provisions, provides, in part, the fol-
lowing definition :

“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...

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.”

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51. (Background.) The new definition of the continental shelf, which
had not been thought of in 1958, appeared towards the end of the 1960s
and the beginning of the 1970s. What then happened in the intervening
period ? This was the age when the extraction of petroleum, not only from
the continental shelf but also from the continental margin, had become a
realistic possibility. Towards the end of the 1960s the major oil companies
were in favour of the United States expanding its sea-bed areas far beyond
the 200-metre depth of the superjacent waters to the edge of the continental
margin, where the possibility of the exploitation — either technical or
commercial — of the reservoir of petroleum resources had become realistic.
On the other hand, they were also keen to prevent the developing nations
from nationalizing or confiscating their invested interests in such ex-
panded areas off the latter’s coasts, in which they might once have been
granted concessions. The United States introduced in 1970 in the United
Nations Sea-bed Committee a draft convention (A/ AC. 138/25) proposing
an international sea-bed area which would lie beyond the continental shelf
as defined in terms of the 200-metre isobath, in which it suggested the
institution of an international trusteeship area to comprise the continental
margin beyond the continental shelf where each coastal State would be
responsible for licensing, supervision and exercise of jurisdiction and
where it would also be entitled to a portion of the royalties or profits
derived from the exploitation of the resources. 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 confis-
cation by such State. In 1973 the United States revised its position and
suggested the concept of a coastal sea-bed economic area covering the
expanse to the lower edge of the continental slope where certain restric-
tions on the nationalization or confiscation of once-granted concessions
would be imposed upon the coastal State (A/AC.138/SC.II/L.35).
Although this new draft ostensibly makes a striking contrast to the United
States draft of 1970, the aims of both proposals were in fact not so
different. A general feeling was emerging that, no matter how the exploi-
tability test in Article 6 of the 1958 Convention might be interpreted, the
basic criterion of the 200-metre isobath as the limit of the continental shelf
could no longer be retained, in the sense that the whole area as a reservoir
of petroleum resources should be incorporated into the national do-
main.

52. (Emergence of distance criterion.) Yet the geology and geomorpho-
logy of the coastal areas in the world vary greatly according to each region.
In some areas the continental shelf (and the continental margin) extend far
beyond the coast, and in other places the coastal sea-bed drops sharply to
the deep ocean floor. In view of this, as a compensation for geomorpho-
logical and geological disadvantages, the idea of the criterion of distance to
define the continental shelf (in the legal sense), which in fact is not relevant

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to the geology or geomorphology of the sea-bed areas, occurred to those
States with a narrower continental shelf which were keen to obtain wider
areas and ensure in terms of distance from the coast a minimum expanse of
the reserved sea-bed areas even beyond their geologically limited conti-
nental shelf, no matter whether or not a deposit of petroleum actually
existed there. This trend happened to coincide with the emergence of the
new concept of the exclusive economic zone, which made a great impact on
the régime of the continental shelf. In the concept of the exclusive eco-
nomic zone, which was about to be accepted in the realm of international
law, no limit other than 200 miles had ever been suggested and this limit
was taken for granted from the outset, though the figure of 200 did not have
any real necessity except for the fact that it had been suggested by some
Latin American countries towards the end of the 1940s as the limit of their
maritime sovereignty. Yet it was understandable for that figure to be
applied as a criterion of distance in the concept of the continental
Shelf.

53. (Incorporation of continental margin in terms of natural prolonga-
tion of the land territory.) While the 200-mile distance was gaining world-
wide support as a criterion for the continental shelf, this criterion of
distance did not, however, work to halt the wider claim extending as far as
the foot of the continental margin as a potential reservoir of petroleum
resources. States which had even broader continental shelves in the geo-
logical sense contended that that 200-mile zone would not be sufficient and
accordingly claimed sea-bed areas farther than 200 miles from the coast as
being still part of their continental shelf. Since petroleum resources exist
not only in the continental shelf itself but also in the continental margin
beyond, the continental shelf in legal terms needed to be interpreted in its
widest sense in order to incorporate the outermost fringe of the continental
margin. The concept of natural prolongation of the land territory, which
appeared for the first time in the Court’s Judgment of 1969 and since then
has been constantly referred to as designating the concept of the conti-
nental shelf, was employed to develop this kind of thought.

54. (“Natural prolongation” in the 1969 Judgment.) In fact, the use of
the concept in the 1969 Judgment seems to have been widely misinter-
preted, as too much emphasis was laid upon the concept, contrary to the
real intention of the Judgment, which was simply to help interpret the law
on the delimitation of the continental shelf. The Court in 1969 stated 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” U.C/.
Reports 1969, para. 39). It also talked of “the more fundamental concept of
the continental shelf as being the natural prolongation of the land domain”
(ibid, para. 40), and of the “natural prolongation or continuation of the
land territory or domain, or land sovereignty of the coastal State, into and
under the high seas, via the bed .. .” (ibid, 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)

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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.

55. (“Natural prolongation” in UNCLOS HI.) If the concept of natural
prolongation had any sense in the 1982 Convention, it was quite different
from what the 1969 Judgment had in mind. The concept was employed to
give support, on the one hand, to the trend to expansion of the national
sea-bed areas since the late 1960s and to halt this expansion, on the other
hand, at the foot of the continental margin, so as to leave the area of
scattered manganese nodules on the deep ocean floor under international
authority in terms of the common heritage of mankind, the idea which had
been emerging repeatedly in the late 1960s. In other words, the concept of
natural prolongation for the continental shelf was suggested with a view to
defining the international sea-bed area.

56. (Two distinct proposals at UNCLOS II.) Two proposals presented
at UNCLOS III at its Caracas session in 1974 played a great role for the
future. A nine-State proposal (Canada, Chile, Iceland, India, Indonesia,
Mauritius, Mexico, New Zealand and Norway) read in part:

“The continental shelf of a coastal State extends beyond its terri-
torial 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 beyond 200 miles.” (A/CONF.62/L.4,
Art. 19.)

In parallel, the United States abandoned its basic philosophy concerning
the international character of the off-shore sea-bed area behind its 1970
and 1973 proposals, as mentioned above, and switched back to the simple
subject of the outer limit of the continental shelf :

“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,
Art. 22-2).

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It may not be necessary to repeat that, behind such a development of an
idea for the expansion of the sea-bed areas to be reserved to the coastal
State towards the foot of the natural prolongation of the land territory,
there was an increasing demand from such States that the whole coastal
area as far as petroleum could be extracted should be attributed to the
coastal State. Apparently 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 in
1975 a provision for the ISNT, which was referred to in paragraph 50
above.

57. (Emergence of a new régime for the outer continental shelf.) There
was a further trend early in the 1970s which cannot be overlooked. A group
of nations which could not themselves be entitled to broadly expanded
sea-bed areas, because of their location in an enclosed or semi-enclosed sea
not facing the vast ocean, found the formation of the continental shelf
extremely inequitable. If the legal continental shelf was to incorporate the
outer edge of the continental margin — which could lie even beyond the
200-mile distance — thus embodying the sea-bed areas where petroleum
deposits can be found or even beyond, the geographical inequality of
States would be further exaggerated. The geographically disadvantaged —
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 containing the concept of payments and contribu-
tions with respect to the exploitation of the continental shelf beyond 200
miles, which has now become Article 82 of the 1982 Convention, was
drafted by some geographically advantaged States simply to appease the
dissatisfied States. The provision 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 (= the outer conti-
nental shelf, if | may so call it) 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 the interests and needs of developing States, particu-
larly the least developed and the landlocked among them.

58. (Division of the inner continental shelf and the outer continental
shelf.) The suggested provision which emerged as a political compromise at
the later stage of UNCLOS III can hardly be regarded as reflecting cus-
tomary international law. Yet noteworthy as of great importance is the
change in the definition of the continental shelf arising out of the universal
introduction of the 200-mile distance which certainly overrode the tradi-
tional concept of “continuity” or “contiguity”, on the one hand, and of the
interpretation of the concept of “natural prolongation” used in the 1969
Judgment, allowing much wider areas, on the other. Thus the continental
shelf would be divided into two areas, the first being the area within 200
miles of the coast where the coastal State’s exclusive interest in the mineral
resources would be established, and the other the area beyond that,

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156 CONTINENTAL SHELF (DISS. OP. ODA)

extending “throughout the natural prolongation of its land to the outer
edge of the continental margin”, where a suggestion had been made that a
portion of the profits should be dedicated to the international community.
It cannot be over-emphasized that at least this parallelism between the
inner continental shelf and the outer continental shelf, which never formed
part of the traditional concept of the continental shelf, has now been
suggested in the 1982 Convention.

(ii) Unchanged legal basis of the continental shelf

59. (Identity of the provisions concerning the right of a coastal State
both in the 1958 Convention and in the 1982 Convention.) Despite the
radical change as to the definition of the continental shelf, one cannot
overlook the fact that Article 77 of the 1982 Convention with regard to the
right of the coastal State over the continental shelf is exactly identical to
Article 2 of the 1958 Convention. Thus the legal basis of the continental
shelf, which was confirmed by the 1958 Convention and further endorsed
by the 1969 Judgment of the Court as being established under customary
international law, had been inherited without any change in the 1982
Convention. The fact that Article 77 of the 1982 Convention is identical to
Article 2 of the 1958 Convention indicates that the legal basis of the
continental shelf has not changed at all, although there remain some
doubts whether this would apply to the outer continental shelf in which a
totally new régime is suggested.

(iil) Impact of the new régime of the exclusive economic zone upon the
continental shelf

60. (Emergence of the exclusive economic zone.) Whether or not the
Court is asked to suggest principles and rules for the delimitation of the
continental shelf or maritime boundaries, it cannot ignore the impact made
by the new concept of the exclusive economic zone on the régime of the
continental shelf. There is no need for me to make a thorough analysis of
the emergence of the exclusive economic zone in the early 1970s, as I have
already done this in my dissenting opinion in the 1982 Judgment (.C.J.
Reports 1982, pp. 222-234, paras. 108-130). Yet, in view of the fact that the
concept of the exclusive economic zone has been rapidly accepted in the
realm of international law, the question cannot be avoided whether the
sea-bed — 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. This question was far more essential than ini-
tially thought in seeking to come to any judgment on the issues that had
been presented for the Court’s consideration in the present case. Iam only
too pleased to note and appreciate that the Court is now becoming aware of
the importance of this problem.

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5. Rule for the Division of a Single Homogeneous
Maritime Area

61. (Article 76 of the 1982 Convention.) Let us now look again at the
gist of the provision of Article 76 of the 1982 Convention :

“The continental shelf of a coastal State comprises the sea-bed and
subsoil of the submarine areas that extend . . . to the outer edge of the
continental margin, or to a distance of 200 nautical miles ... where the
outer edge of the continental margin does not extend up to that
distance.”

A logical analysis of these words will show that what Article 76 thus offers
is not, as the Judgment seems to suggest, two complementary definitions of
the (legal) continental shelf — hence two complementary criteria for deter-
mining its appurtenance — but two radically alternative definitions. How-
ever, the Court has decided that the sea-bed between the Parties’ coasts is a
single, homogeneous area for the purposes of the delimitation and, in
paragraph 39 of the Judgment, comes near to implying that, whenever
dealing with claims in regard to combined distances between coasts of less
than 400 miles, “there is no longer any reason to ascribe any role to
geological or geophysical factors”. While I agree that, for practical pur-
poses — and, as I suggest elsewhere, for reasons connected with the régime
of the exclusive economic zone —, the distance criterion has replaced that
of geomorphology in all respects save in regard to the outer continental shelf
between the 200-mile and 350-mile limits, I am not sure the Court has
realized that, by stating that international law has already developed to
that stage, it has added weight to the second of the alternative definitions in
Article 76 and, in effect, replaced with the minor premise (distance) what
some jurists may still regard as the major premise (physical prolongation).
From the viewpoint of that Article, this would have been open to challenge,
had the sea-bed in the present case featured, not a rift zone, but the outer
edge of a continental margin. The Court would then almost certainly have
had to weigh the merits of two convincing claims invoking the sense of
Article 76, the one based on geomorphology, the other relying on distance.
As it happens, the only real problem before the Court was actually that of
discerning the rule for the division of a single maritime area homogeneous
in terms of the 200-mile distance criterion.

62. (Divison of a single, homogeneous area.) Let us put aside, for the
sake of convenience, the exploitability test prescribed in sea-bed areas
beyond the 200-metre isobath in the 1958 Convention and the new concept
of the outer continental shelf beyond the 200-mile distance in the 1982
Convention, neither of which had any direct relevance to the present case.
Under the 1958 Convention, delimitation of the continental shelf could
only be effected in a sea-bed area of a homogeneous nature (in terms of the

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depth criterion of the 200-metre isobath) between States whose titles
happened to overlap. The 1958 depth criterion has now been replaced in
such areas by the distance criterion of 1982, but the present situation is
similar in essence in that one homogeneous sea-bed area (now within a
radius of 200 miles from either of the coasts concerned) may be divided
among the bordering States. And I can see no reason to apply different
principles and rules to the 1958 and 1982 hypotheses where an overlapping
portion in a homogeneous sea-bed area is to be divided, since the law
applicable to that situation has not undergone any change.

63. (Difference from territorial disputes.) A dispute concerning the
delimitation of the continental shelf is 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 nor determining de
novo, the sovereignty of one party in specific areas of land or on a specific
island. In contrast, in the case of the delimitation of the continental shelf,
the boundaries between the sea-bed areas appertaining to the coastal
States are not restricted a priori, so that any State concerned has, in
principle, been entitled to claim any specifically defined area. The area
within a 200-mile radius of the coast, where given the proximity or adja-
cency of the States their claims overlap, should be delimited or divided
between the States concerned. To make a delimitation of the continental
shelf is to draw a line in a single homogeneous sea-bed area.

64. (Dividing an area.) In this respect a mention should be made of the
concept of apportioning “just and equitable shares”, which the Court did
not accept in 1969. The Court’s rejection of this concept in 1969 seems to
have been very heavily dependent on its development of the doctrine that
“the rights of the coastal State in respect of the area of the continental shelf
... 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 mutually exclusive of the other, so that the function of the delimi-
tation of the continental shelf consisted “merely” in discerning and bring-
ing to light a line already in potential existence. The test of natural pro-
longation, and certain other features of the Judgment, were developed
precisely as an aid to the performance of that very special and difficult
task. Now, whatever the necessity of the Court’s logic in the 1969 context, I
am fully persuaded that it has since been overtaken by events. There is no
reason for the present Court, in 1985, to be inhibited from realizing that the
present delimitation is simply a question of justifiably and equitably
dividing, apportioning or even “sharing” between the Parties a part of a

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homogeneous sea-bed area which either can potentially claim. Thus the
probiem in the present case, in which the situation was not different from
that in 1958, was to see what principles and rules, if any, other than the
“equidistance/special-circumstances” rule could reasonably be proposed
for the purpose of equitably dividing a single homogeneous sea-bed area
among neighbouring States.

6. Equity within the “Equidistance/Special-Circumstances” Rule

65. (Equity.) The concept of “equity” is applicable to any case of
dividing, apportioning or even sharing, and the case of dividing the area of
overlapping claims in a single homogenous sea-bed area 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 equi-
table principles, and the eleventh-hour provision of the 1982 Convention
provides in similar terms that “delimitation ... shall be effected ...in order
to achieve an equitable solution”. “Equity” remains the prevailing prin-
ciple in delimiting the continental shelf, yet simple insistence on an equi-
table solution is not so much helpful as merely the statement of a truism,
since “equity” is a blanket concept susceptible of divers interpretations.
How should it have been applied in the circumstances of the present
case ?

66. (Irrelevance of world social justice.) Certainly various political,
social and economic factors could have been suggested for this purpose :
the size of the territories and their population, the natural features of
“hinterland”, the distribution of natural resources, the degree of develop-
ment of the economy and industry, security considerations, etc., of the
respective Parties. However, these factors could not lead to a solution for
the Parties, because ideas of the way in which they should be taken into
account are bound to vary widely. 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 than the other State, or whether the
latter should be given much wider areas to compensate for its poverty. It
could also be asked whether the ratio between the two States’ areas of land
territory or even lengths of coastline 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, whichnot only could
not be 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. This
is a matter of future policy of world social justice which does not fall within
the purview of a judiciary which has to employ solely the principles and
rules of international law unless requested to decide a case ex aequo et bono.
I agree with the Judgment in suggesting that the Court has no competence

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to guess at or initiate any future policy of world social justice going beyond
the existing principles and rules of international law.

67. (Geographical circumstances, normal or exceptional.) In the draw-
ing of maritime boundaries, geography has always played a very important
role ever since the International Law Commission first started dealing with
the law of the sea, and rarely has any other element been considered as a
factor affecting it. This the Judgment rightly acknowledges. Where I part
company with it is in its belief that geography can be respected by exag-
gerating the mathematical consequences of a longer coastline. The 1958
Convention offered the formula of equidistance from the coast “unless
another boundary line is justified”. The equidistance method, a geogra-
phical method which leaves no room for equivocal interpretation, has ever
since been suggested for the delimitation of the continental shelf. As the
Court acknowledged in its 1969 Judgment, no other method of delimita-
tion has the same combination of practical convenience and certainty of
application. Is there any other method which may possibly represent
equity ? As suggested in the present Judgment, equidistance may not be the
invariable method for delimitation purposes, and no doubt has existed that
in principle it would be strictly followed only in certain normal situations
where it produces an equitable solution to the problem of the division of
sea-bed areas. But if this method is one which, in principle, should apply in
normal situations, as suggested in the 1958 Convention as well as the 1969
Judgment of the Court and the 1977 Decision of the Anglo-French Arbi-
tration, how can anyone maintain that its application cannot be a rule of
delimitation ? This does not, of course, mean that it is a compulsory rule in
abnormal circumstances. In 1953 the Committee of Experts on Certain
Technical Questions concerning the Territorial Sea was already well aware
of the necessity of allowing exceptions to the equidistance rule. In 1956 the
International Law Commission pointed out, in its final draft, that “pro-
vision must be made for departures [from the equidistance rule}” and that
“this case may arise fairly often so that the rule adopted is fairly elastic”.
The 1958 Convention accordingly provided that a boundary other than the
equidistance line might be justified by special circumstances. The 1958
Convention was not meant simply to suggest a substitute for or a replace-
ment of equidistance in case of special circumstances. On the contrary, a
certain flexibility was given so that, in the application of equidistance,
geographical anomalies could be rectified in order to avoid results of a
distorting character. In my view the “equidistance/special-circumstances”
rule as suggested in the 1958 Convention still remains a basic rule for the
delimitation of the continental shelf.

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68. (Coastline irregularities as special circumstances.) Considering geo-
graphy as the sole factor to be employed for the division of the continental
shelf, the equidistance formula may well be rectified by certain relevant
geographical circumstances. Since UNCLOS I efforts have been made to
reconcile equity with the geography surrounding the sea-bed areas con-
cerned. 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 containing the points from
which the equidistance line is to be plotted. Should the real configuration
of the coast of each State provide the sole basepoints for measuring
equidistance ? This is basically the procedure 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. Certainly, not just any 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. Generally speaking, however, an irregular overall
shape of the coastline, and significant configuration irregularities in a
lateral case, and the existence of narrow promontories of peninsulae or
even of islands in a case of opposite States, might reasonably be agreed
upon as constituting irregularities the effect of which is to be mitigated in
settling the basepoints on coastlines. It is important to note in this respect
that 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.

69. (Coastal façade and macrogeographical aspect.) In the North Sea
Continental Shelf cases in which the Federal Republic of Germany had to
argue for “coastal façade” or “macro-geographical aspect” in order to
rectify the points for measuring equidistance because of the irregularities
in coastlines, i.e., a deep concave in that case. At that time I argued on
behalf of that Party as follows :

“T suggest ... that if we wish to draw lines of demarcation to
apportion areas of the continental shelf far removed from the coastal
belt, we shall have to take a modified approach if a sensible outcome is

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to be achieved. In this specific case such modification might well
entail the drawing of geographically delimited lines of demarcation
not based upon the angled inward-curving North Sea coast of the
Federal Republic of Germany. Rather, I propose that the lines of
demarcation be drawn from a basis represented by the coastal ‘fa-
cade’, if I may so call it.” (1. CJ. Pleadings, North Sea Continental
Shelf, Vol. IT, p. 62.)

“The coastal façade, as I envisage it, represents a view taken of a
State’s coastal front with the intent of placing it in the proper per-
spective in relation to the coastal front of its neighbouring States.
Such a perspective would lead to a division granting each State a just
and equitable share. In order to visualize such a façade, one should be
guided by the general direction of the coast ; in some particular cases,
the most useful course would be to take the whole coastline of a
country as constituting an entity.” ({bid., p. 193.)

“It may be suggested that [the] entire concept [of straight baselines]
and its subsequent development may serve as a bridge towards my
concept of a coastal fagade. This fagade line is a macrogeographical
viewpoint which is a further abstraction from the microgeographical
viewpoint. The latter consists in the drawing of the linear coastline as,
for example, is envisaged in the concept of the straight baseline,
whereas the façade theory involves a further abstraction from the
actual coastal configuration and, therefore, should be characterized as
a macrogeographical viewpoint.” ({bid., p. 195.)

32 66

My arguments of “façade”, “coastal front” and “macrogeographical per-
spective” were strongly opposed by the late Sir Humphrey Waldock, who
was counsel for Denmark and the Netherlands, who said :

“Another sign, Mr. President, that our opponents may have been
becoming uneasy about your receptiveness to the ‘unprecedented and
not-to-be-a-precedent’ criterion of their ‘coastal fronts’, was the
appearance in their final speeches of the ‘macrogeographical perspec-
tive’. At any rate, it was really quite remarkable how, in the dying
moments of their speeches on the tenth day, this tongue troubling
phrase suddenly appeared and ran riot through their argument.
Learned counsel [the present writer], it is true, indulged himself with
the heady wine of this new doctrine only twice, on page 195, supra. But
the learned Agent [Professor Jaenicke, who presented these argu-
ments after the writer] was much less abstemious ; for ten times did he
have recourse to it on the last dozen pages of his speech.” (Ibid,
p. 275.)

Nevertheless, this terminology does now prevail in some cases for the

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delimitation of the continental shelf, though often in totally different
situations from those I originally had in mind.

70. (Offshore islands as irregularities.) Although the status of offshore
islands in connection with the delimitation of the continental shelf was not
provided for in either the 1958 Convention or the 1982 Convention, views
have often been expressed on whether all islands should have baseline
status for measuring the equidistance line when delimiting the continental
shelf. I have sufficiently dealt with the question of islands in the context of
“irregularities in coastlines” in my dissenting opinion in 1982 (C.J.
Reports 1982, pp. 263-266, paras. 170-173). I have nothing to add, but
would draw the following conclusion : it is evident that the presence of an
island may “influence the equity of a delimitation” according to its geo-
graphical position. 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, econ-
omy, distance from mainland, etc.) of any island to be wholly or partially
disregarded. Yet geographical and demographic criteria will normally be
sufficient to determine whether it should be treated as a rectifiable irregu-
larity. In other words, an island should be considered on its own merits
when the baseline for the plotting of an equidistance line is being deter-
mined. Yet even if a dependent island is to be treated as a rectifiable
irregularity in measuring the equidistance between two States, either
lateral or opposite, this qualification of irregularity can never apply to an
island State for which the delimitation of the continental shelf is to be
drawn.

CHAPTER III. MISUNDERSTANDING OF “PROPORTIONALITY” AND
“HALF-ÉFFECT OF AN ISLAND” IN RECENT JUDGMENTS

Introduction

71. Iregretfully have to point out that the present Judgment’s failure to
give proper treatment to the “equidistance/special-circumstances” rule,
which was adopted as a conventional rule in UNCLOS I and given special
significance in one way or another in the 1969 Judgment of the Court and
the 1977 Decision of the Anglo-French Arbitration, originates in the later
jurisprudence of the Court, that is, its 1982 Judgment in the Continental
Shelf (Tunisia/ Libyan Arab Jamahiriya) case and the 1984 Judgment by the
Chamber in the Delimitation of the Maritime Boundary in the Gulf of Maine
Area case, both of which suggested no other rule but only some random
ideas. Not only in the first but also in the second of these decisions, it would
seem that the applicability and potential of the “equidistance/special-
circumstances” rule were either unappreciated or ignored, while the

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notions of “proportionality” and “half-effect of an island” were randomly
misused.

1. The 1982 Judgment in the Continental Shelf (Tunisia/ Libyan
Arab Jamahiriya) case

72. (Arbitrarily fixed veering point.) In the Court’s 1982 Judgment in
the Continental Shelf (Tunisia/ Libyan Arab Jamahiriya) case the Court did
not appear to me to suggest any rule for the delimitation. In suggesting a
line of delimitation, the Court did not apply any persuasive reasoning but
rather put forward certain whimsical ideas. For example, in the Judgment
it stated that the first sector of the dividing line should veer at —

“the point of intersection with the parallel passing through the most
westerly point of the Tunisian coastline between Ras Kaboudia and
Ras Ajdir, that is to say, the most westerly point on the shoreline (low
water-mark) of the Gulf of Gabes” (.CJ. Reports 1982, p. 94,
para. 133 C. (2)).

On this point, I stated in my dissenting opinion :

“T suggest that, if the configuration of the area 1s looked at from a
position and angle different from the traditional north-south/west-
east view, it will immediately be apparent that the suggested 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
convenient lines of reference for descriptive purposes.” (/bid., p. 268,
para. 178.)

73. (Misapplication of “half-effect” in the second sector.) Furthermore,
the Court suggested that the second sector was —

“to run parallel to a line drawn from the most westerly point of the
Gulf of Gabes bisecting the angle formed by a line from that point to
Ras Kaboudia and a line drawn from that same point along the
seaward coast of the Kerkennah Islands, the bearing of the delimi-
tation line parallel to such bisector being 52° to the meridian” (ibid,
p. 94, para. 133 C. (3)).

On this point I stated :

“Why should this segment of the 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 boundaries 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

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Kaboudia and another to the seaward coast of the Kerkennah Islands
is to be used, why should not this idea of bisecting angles have been
applied for drawing the first segment of the boundary ?” (LCJ.
Reports 1982, pp. 268-269, para. 179.)

Integral with the above anomaly is the thorough misunderstanding of the
“half-effect” allowed to dependent islands, as first applied by the 1977
Decision in the Anglo-French Arbitration. In that case, half-effect was
given to the Scilly Isles in order to determine the notional coastline for the
United Kingdom and thus prepare the way for an acceptable bisecting line,
that is, an equidistance line between the coast of France and the rectified
coast of the United Kingdom. The 1982 Judgment departed crucially from
the 1977 precedent. Admittedly, it similarly made use of “the ‘half-effect’
or ‘half-angle’ ” technique (1. C.J. Reports 1982, p. 89, para. 129) in order to
modify its imaginary reference baseline on the Tunisian side so as to make
what it regarded as proper allowance for the Kerkennah Islands. This it did
in the context of a finding that a situation had nearly been produced in
which the position of an equidistance line had become a factor to be given
more weight (ibid., p. 88, para. 126). Yet, despite this, it did not apply the
result of the half-effect in order to determine any median line between
opposite coasts but proceeded to consecrate a parallel to that adjusted
baseline as the second segment of the delimitation, just as if the Court had
been asked to determine an outer limit of one party only rather than a
common lateral boundary. France would have gained considerably had
this method been followed in 1977.

2. The 1984 Judgment of the Chamber in the
Delimitation of the Maritime Boundary in the
Gulf of Maine Area case

74. (Rough description of the area.) The principle of non-principle
seems to have been repeated in the Judgment given in 1984 by a special
Chamber : the first such chamber ever set up in the 40-year history of the
Court. The Judgment in the Gulf of Maine case begins by defining the
delimitation area in a very equivocal geographical context. According to
the Judgment (1.C.J. Reports 1984, pp. 268-270, paras. 29-34), the Gulf of
Maine, having “roughly” the shape of an elongated rectangle, or taking
“the form of a large, roughly rectangular indentation”, consists of four
side-lines :

line (i) : this line is not clearly defined, but seems to represent “the general
south-southeast/north-northwest direction of the Massachusetts coast
abutting on the Gulf of Maine”, starting from Nantucket Island ;

line (ii) : the coast of Maine “from Cape Elizabeth to the international

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boundary between [the two Parties] which terminates in the Grand
Manan Channel” ;

line (iii) : “the imaginary line which runs from the international boundary
terminus across the Canadian island called Grand Manan Island to
Brier Island and Cape Sable at the two extremities of Nova Scotia” ;

line (iv) : “an imaginary line drawn across from the southeastern point of
Nantucket Island, to Cape Sable, at-the southwestern end of Nova
Scotia”, which the Parties had agreed as “the seaward ‘closing line’ of
the Gulf of Maine”.

In fact, in this roughly rectangular shape, side-line (ii) is not connected with
side-line (i), leaving nearly a 60-mile gap between the two side-lines, which
forms the base of a triangle at that corner. Yet, according to the Judgment,
the “quasi-” parallelism is “striking”. Side-line (iii), which is “imaginary”,
is parallel with the coast of Nova Scotia, which, “almost” opposite to the
international boundary terminus, swings “sharply” in an “overall” south-
southeasterly direction at “almost” a right angle. In fact this is an angle of
about 98° to side-line (ii), as the Judgment indirectly — and perhaps
without noticing its implication — suggests at another place (para. 213). In
such an imaginary area of “the form of a large, roughly rectangular
indentation”, the Judgment attempted to suggest a concrete delimitation
line which in my view has no rational or convincing justification.

75. (Non-bisecting first segment.) Starting from Point A, which had
been agreed upon by the Parties, and which is a point equidistant from
their respective coasts as this is a point on the line claimed by Canada as an
equidistance line (this geographical fact is what the Chamber does not
want to admit), the first segment of the line drawn is a bisector of side-line
(ii) and the “imaginary” side-line (iii) (in spite of the complicated expla-
nations given in paragraph 213 of the Judgment, the suggested line is
simply a bisector at Point A of the angle between lines parallel to the two
“basic” coastlines, as mentioned above). A line drawn as a bisector of the
angle between two basic lines will, in principle, represent the equidistance
line, but only on condition that it-starts from the apex. In the case of the
Gulf, however, the line does not start from the intersection of the baselines
but from Point A, which does not have any relevance to the apex forming
the angle of the two coastlines. How could the Chamber have

“believe[d] that this practical method combines the advantages of
simplicity and clarity with that of producing . . . a result which is
probably as close as possible to an equal division of the... area
to be delimited” (.C.J. Reports 1984, p. 333, para. 213 ; emphasis
added),

if Point A, though agreed by the Parties, is nothing but an arbitrary point
without any geographical significance ? If the bisecting line of the two
coasts had started, as might have been reasonable, from the centre of the

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Gulf, this line would certainly have been different from the suggested line,
but should have been the bisecting line reaching to the apex, in other words
the international terminus point, but not to Point A. I am not suggesting
that the dividing line should not have started from Point A, which had been
agreed upon by the Parties. Yet if the line had to start from Point A, which
did not have any role in forming the angle between the two coastlines, the
bisecting line from that point would not possess the special properties
ascribed to it.

76. (Trifling with geography for the second segment.) The Judgment
errs further in its suggestion of the second segment of the delimitation line.
Considering the “quasi-parallelism” between the lines of the Massachu-
setts coast and the coast of Nova Scotia (this time not side-lines (i) and (iii)
but a line linking the promontory of Cape Ann to the elbow of Cape Cod
and a line joining up Brier Island and Cape Sable), both being “practi-
cally” parallel coasts, a median line is considered first but only for the
purpose of determining the orientation of the delimitation line. A correc-
tion is then suggested to shift the intersection of this median line with the
location line drawn across the Gulf where the coasts of Nova Scotia and
Massachusetts (this time, not the opposite sides of the “imaginary rec-
tangle’’) are nearest to each other, considering (a) the total length of the
United States coastline “as measured along the coastal fronts from the
elbow of Cape Cod to Cape Ann, from Cape Ann to Cape Elizabeth. and
from the latter to the international boundary terminus” (ibid., p. 336, para.
221) (approximately 284 miles), and (b) “the overall length of the Canadian
coastline, as similarly calculated along the coastal fronts from the terminal
point of the international boundary to the point on the New Brunswick
coast off which there cease to be any waters in the bay more distant than 12
miles from a low water-line . . . then from that point across to the corre-
sponding point on the Nova Scotian coast ... thence to Brier Island. and
from there to Cape Sable” (ibid.) (approximately 206 miles). The ratio
between the coastal fronts of the United States and Canada as thus mea-
sured is 1.38 to 1. Hence the median line, so as to reflect this ratio. could
have been shifted along the shortest line crossing the Gulf where the coasts
of Nova Scotia and Massachusetts are nearest to each other. that is. a point
near the northeastern tip of Cape Cod and Chebogue Point, Nova Scotia.
But the Chamber further corrected this point so as to take into account the
presence off Nova Scotia of Seal Island and certain islets in its vicinity. Seal
Island being given “half-effect”. Half-effect in this case meant that a length
of 7,117 metres, namely, half of the distance between the southwestern
point of Seal Island and the main coast of Nova Scotia. should be added to
the Canadian portion of the location line. Thus the dividing point on the
location line is fixed in the ratio of 1 to-1.32. In my view, however. this ratio
does not reflect the ratio of even the “imaginary” coastline of both coun-
tries, that is, 1 to 1.38. because a factor of a totally different nature is herein
introduced. This second segment starts where it meets the first segment. in
other words Point B. The second segment, according to the Judgment.

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“though it may be the shortest, will certainly be the central and most
decisive segment for the whole delimitation line”. This certainly is true. I
simply want to say, however, that I do not see how the drawing of this short
line, reflecting the ratio of the two long coastlines, can really divide the
continental shelf of the Gulf of Maine. It is difficult to find any justifiable
reasoning reflecting equity in drawing such a second segment. In my view,
the line thus shifted cannot be a “corrected median line” in any sense at all,
and in addition the Chamber seems to fail to understand the “half-effect”
of an island, first suggested in the 1977 Decision. Even more radically than
that of 1982, the Gulf of Maine Judgment departs from that Decision in its
use of “half-effect”, which is no longer related to drawing any bisector or
median line but is simply used to confirm the sliding point on the line
connecting the northeastern tip of Cape Cod and Chebogue Point. Per-
sonally, I am at a loss to understand what the Judgment was trying to prove
by this reference to “half-effect”. At any rate, the half-effect of an island as
referred to in the 1977 Decision for the purpose of rectifying the bases for -
the equidistance line (= bisector) would appear to have been either
misunderstood or misapplied.

77. (Groundless division of the area off the Gulf.) The third segment
_ Starting from Point C, the point where the extension of the second segment
meets the closing line of the Gulf of Maine (connecting Nantucket Island
— not Cape Cod this time — and Cape Sable) is a line perpendicular to that
closing line. Thus the area off the Gulf of Maine is divided between the
United States and Canada far more favourably for the United States than
for Canada, since it reflects the ratio of the respective overall coastlines of
both countries in the Gulf, which in my view cannot have any relevance to
the area outside the Gulf of Maine.

78. (Lack of reasonable and objective analysis.) After having examined
with great care the line of delimitation drawn in and off the Gulf of Maine
by the Chamber, I feel bound to say that the Chamber has created an
impression of justice which has insufficient foundation in reasonable and
objective analysis. It is not underpinned by any legally justifiable postu-
late. I share the view of Judge Gros, when he properly stated that —

“{I]t is a fact that the present Judgment essentially chimes with the
standpoint taken by the Court in 1982. The effects of this marked
change of stance in conventional law and jurisprudence form the main
reason for my disagreement with the majority of the Chamber regard-
ing the solution to the problems raised by the present case. I said at the
time why I considered that the 1982 Judgment had taken a wrong
turning (.C.J. Reports 1982, dissenting opinion, pp. 143-156) ; the
Court’s deviation could have been mitigated by a decision of the

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present Chamber in a dispute which had all the elements needed to
strengthen rather than erode the law on the delimitation of maritime
expanses, but this opportunity has been missed.” (J. C.J. Reports 1984,
pp. 361-362, para. 3.)

3. Conclusion

79. On looking at these two Judgments of 1982 and 1984, one derives
the impression that the Court, without being aware of the proper context of
the concepts of proportionality and half-effect of an island, is simply
trifling with them by suggesting a product of its imagination which it has
mistaken for equity. First, the concept of “proportionality” which had
been mentioned in the specific circumstances of the North Sea Continental
Shelf cases was overgeneralized in these two Judgments. In order to speak
of “proportionality” between the area and length of the coast it is logically
unavoidable to assume in advance the relevant areas and relevant coast-
lines with which only the Parties in dispute are concerned. The Court did
not show itself sufficiently aware of its arbitrariness in assuming the
relevant coasts and areas without any decisive warrant. Secondly, both
Judgments were mistaken in relying on the concept of “half-effect” of an
island, which was employed for the first time in the 1977 Decision, where
“half-effect” was given in considering to what extent an island should be
counted as a basis of calculation for drawing an equidistance line, but not
for the purpose of replacing the very concept of equidistance.

CHAPTER IV. SUGGESTED LINE OF DELIMITATION

80. While the “equidistance/special-circumstances” rule, as a rule of
international customary law, should apply in this case, I would suggest that
the existence of the island of Filfla constitutes a special circumstance
because of its size, location and limited function, thus being excluded from
the measurement of the equidistance between Malta and Libya. Ignoring
the island of Filfla, the equidistance line may be drawn between the
Maltese and Libyan coasts. The chart attached for illustration purposes
indicates an idea of what the delimitation line should be. Attention should
be drawn to the fact that the line is drawn as far as its intersection with the
equidistance line between Italy and Libya. The portion of the line extend-
ing beyond its intersection with the line connecting the outermost points of
the Maltese and Libyan coasts, in their opposite relationship, is indicated
by a dotted line. I must emphasize that I have no intention whatever of
implying that the equidistance line on the chart which Malta shares with
Italy definitively divides the area between those States. Referring to my
dissenting opinion in Italy’s application to intervene in this case, I must
repeat my regret that Italy’s intervention was not admitted, but, if it be
borne in mind that the Court is of the view that the interests of the third

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party are protected by Article 59 of the Statute, this suggested line of
division between Libya and Malta would simply mean that neither of these
Parties is entitled to claim against the other the area beyond that line.
Whether some areas where this suggested delimitation line extends may
properly be claimed by Tunisia or Italy will be another problem.

(Signed) Shigeru Opa.

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171 CONTINENTAL SHELF (DISS. OP. ODA)

Pantelleria

Lampedusa

MAP APPENDED TO THE OPINION OF JUDGE ODA

= My suggested line —— Lines agreed by the States concerned
MT, ML Lines defined in paragraph 80 of

—.—  Equidistance lines 1e
the Opinion