143

DISSENTING OPINION OF JUDGE GROS
[Translation]

J have voted against the Judgment as a whole, for reasons which I shall
set forth as succinctly as possible.

1. On account of the importance of the Court’s interpretation of its role
under the Special Agreement, I shall deal with this point first (the text of
the Special Agreement is to be found in the recapitulation at the beginning
of the Judgment, para. 2).

The problem that arose for the Court was that of the extent of its
competence to answer the Parties’ request as formulated in the Special
Agreement which is the sole source of that competence. It is apparent from
the positions taken up in the pleadings and at the hearing that the Parties
disagree as to the precise scope of the request. More is in fact involved than
a minor difference in the interpretation of Articles 2 and 3 of the Special
Agreement, which are the subject of debate (Judgment, paras. 29 f.) ; the
contention argued for by Libya is based on the denial of a principle which
is vital for the Court : namely, that the Court is a judicial body the exercise
of whose judicial power is governed by the Statute and the Rules. It is of
course open to two States, by means of a Special Agreement, to give the
Court a wider jurisdiction than is contemplated by the treaties in force
between them or, in the formulation of their request, to limit the Court’s
competence to one or more specific points of law or certain specific facts.
But what Libya claims to find in the Special Agreement is something quite
different. This was disclosed by the replies given by the two States on
21 October 1981 to the question I put on 15 October 1981. In order to
reduce the dimensions of this opinion, I shall not reproduce that exchange
but simply draw the appropriate conclusions from it.

2. Concerning as it did the “binding force” of the judgment to be given,
the question sought to draw the attention of the Parties to the rules to be
found in the Charter, the Statute and the Rules of Court, as well as the
practise of the Court. The first text is Article 94, paragraphs 1 and 2, of the
Charter, which binds Members of the United Nations to “comply with the
decision” of the Court (para. 1), and contemplates action by the Security
Council in case of a Party’s refusal to do so (para. 2). The other applicable
texts on the subject of the binding force are Article 59, Article 60 and
Article 61, paragraph 3, of the Statute, and Article 94, paragraph 2, of the
Rules of Court, which reiterate the rule of the Charter that every judgment
binds the parties to comply with it. Libya’s reply to my question makes no
reference whatever to the obligations deriving from these texts for every
State Member of the United Nations ; the preamble to that reply takes as
sole reason for acknowledging the binding force of the future judgment the
Special Agreement, as interpreted by Libya:

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CONTINENTAL SHELF (DISS. OP. GROS) 144

“Bearing in mind that Libya and Tunisia have agreed in Article 3 of
the Special Agreement... to ‘comply with the judgment of the Court
and with its explanations and clarifications’, the position of Libya is as
follows :” (emphasis added).

Thus Libya represented everything as flowing solely from the text of the
Special Agreement, without any mention of the rules in the Charter and
Statute, and it did so deliberately : Libya did not refer to the obligation to
respect and carry out the Court’s judgment, as laid down in the Charter and
Statute, because that would have undermined its contention that the
Special Agreement provides for referral, after the Court has delivered
judgment, to an unfettered agreement between the Parties which could
thus adjust the terms of the Judgment. The Judgment will indeed be a
decision of the Court but, for Libya, its binding force only exists to the
extent that [“Bearing in mind that . . .”] it has “agreed” to comply with it by
an undertaking given to Tunisia, not to the Court. In giving that reply,
Libya was simply confirming what is, for that Party, a basic contention,
namely that the final delimitation of the continental shelf must be effected
by agreement. The Court should have brought this to light in the Judgment
and gone on to remove all uncertainty, which has not been done in such a
way as to bring home to the Parties the Court’s view of the extent of its
jurisdiction in the present case : “the seising of the Court is one thing, the
administration of justice is another” (Nottebohm, I.C.J. Reports 1953,
p. 122).

3. Article 2 of the Special Agreement connotes merely an obligation to
negotiate the transference to a map of the delimitation decision taken by
the Court, no more. Article 3 confirms this limited scope of the “agree-
ment” by making provision for “explanations and clarifications” which
would “facilitate the task of the two delegations, to arrive at the line
separating the two areas of the continental shelf... .”. The reference to an
agreement postulates an obligation to negotiate, which does not run
counter to Libya’s argument that the Special Agreement entails agree-
ment being reached between the Parties. But what agreement is really
involved ?

The obligation to negotiate has been well defined by the Court in a
passage of an Advisory Opinion which has become a locus classicus :

“The Court is indeed justified in considering that the engagement
incumbent on the two Governments...is not only to enter into
negotiations, but also to pursue them as far as possible, with a view to
concluding agreements... But an obligation to negotiate does not
imply an obligation to reach an agreement...” (Railway Traffic
between Lithuania and Poland, Advisory Opinion, 1931, P.C.I.J., Series
A/B, No. 42, p. 116 ; and cf. also the confirmation of this in the 1969
Judgment, I.C.J. Reports 1969, pp. 47 f., at para. 85, sub (a), and
para. 87.)

The limits of the obligation are simple : to negotiate in a reasonable

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CONTINENTAL SHELF (DISS. OP. GROS) 145

manner and in good faith in order to achieve a result acceptable to both
Parties, but without being obliged to reach agreement at any price. The
obligation to negotiate is an obligation as to conduct, the definition of
which in each case involves “standards” or “guidelines” deriving from the
nature of the specific object of negotiation and flowing from international
custom or practice ; they are thus legal in origin and scope, while not,
strictly speaking, being legal rules or principles within the meaning of
Article 38 of the Statute of the Court. But they are not political or purely
factual elements with no legal colouring ; quite the reverse — since their
existence depends upon their recognition by States as factors in resolving
their dispute. In the present context, I need hardly recall, the negotiating
would revolve upon a judgment of the Court, and thus on binding rules of
law.

4. For the record, it is worth mentioning the principle of good faith,
which may be construed in this instance as the obligation so to conduct
oneself that the negotiations are meaningful, that is to say, that the judg-
ment is carried out. There is no negotiation if each party, or either party,
insists on its own position and refuses ever to contemplate any softening or
change (cf. I.C.J. Reports 1969, p. 48, para. 87 in fine, and the Lake Lanoux
Award of 16 November 1957, [LR 1957, esp. pp. 133-138). Various pas-
sages in the oral arguments go to show that such might be the outcome of
the contention that the final delimitation can only be established by an
agreement, so that the findings communicated by the Court are merely
“guidance”. The Judgment’s criticism on this specific point (paras.
29 f.) ought consequently, in my view, to have been rounded off by envis-
aging all the consequences of a contention which the Court should have
ruled out of order.

5. The point is that by taking up such a position, contradicted by
Tunisia, Libya was interpreting the Special Agreement as if that instru-
ment were capable of amending the rules of the Charter and Statute, and
that is something which goes to the heart of the Court’s judicial role. It has
been argued that two States can always agree by treaty to modify their legal
situation and that the judgment could not make an exception to this rule.
This is a somewhat simplistic view of things when what the situation calls
for is a decision whether the Court, being thus warned of the intentions of a
party, can keep silent in the face of such an opinion. The question was
whether, before the judgment which the Parties asked the Court to deliver
and which must be binding on them, the Special Agreement could validly
have reserved for them the right wholly or partly to modify the Court’s
jurisdictional act. That is an unacceptable notion for the Court, which does
not give States opinions but declares to them, with binding force, what it
holds to be the law applicable to the dispute submitted to it. And, having
been warned that one of the States felt able to disregard this, while the
other State took the opposite position, the Court ought to have asked itself
whether it might not thereby be prevented from properly exercising its
judicial function. In the Judgment delivered in the Free Zones case on
7 June 1932 (P.CIJ., Series A/B, No. 46, p. 161), the Court said :

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CONTINENTAL SHELF (DISS. OP. GROS) 146

“After mature consideration, the Court maintains its opinion that it
would be incompatible with the Statute, and with its position as a
Court of Justice, to give a judgment which would be dependent for its
validity on the subsequent approval of the Parties.”

The Court ought therefore to have rejected the Libyan contention outright
and to have declared that, apart from the drawing upon a map of the line
already determined, nothing was negotiable in the Judgment it has deliv-
ered on the determination of the areas of continental shelf appertaining to
the Parties ; this has not been done (cf. paras. 26 and 29 of the Judg-
ment). |

6. The absence of precision in the Judgment with respect to the binding
force of the judicial decision it contains is just as serious with respect to
Article 3 of the Special Agreement (cf. Judgment, para. 31).

Article 60 of the Statute makes provision for a request for interpretation
“as to the meaning and scope” of judgments of the Court, upon the request
of any party. If the two States in question had had in mind a request for
interpretation, Article 3 of the Special Agreement would have been super-
fluous ; it is consequently to be supposed that that article was meant to
pave the way to some other eventuality than interpretation. The Court has
declined to meet this problem which, in my view, also controlled the
argument as to how far its Judgment was to be taken as binding. It has been
urged that what is entailed is a request for interpretation, or something
more than or short of that. For various reasons, it 1s regrettable to have
remained in this uncertainty. If Article 3 is a weakened version of Arti-
cle 60 of the Statute, the question of its lawfulness arises — in the acutest
way, moreover, since Article 60 allows “any party”, and thus a single party,
to submit a request for interpretation, whereas Article 3 provides that the
two Parties “shall together go back to the Court and request ...”, which
seems to imply the necessity of an agreement to go back and an agreement
as to the points to be explained or clarified. The Court having refused to
consider this problem I cannot deal with it in full, since it may actually
arise within three or six months, but in so far as Article 3 of the Special
Agreement, according to one interpretation of it, clinches the contention
that the negotiation of the line to be drawn following delivery of judgment
is in the hands of the Parties, without the Judgment being truly “final” (the
word employed in Articie 60 of the Statute), I find it necessary to dissociate
myself both from the Court’s refusal to pronounce upon this point of law
and from the possible sequels of this abstention. Of these the most serious
is that the protection afforded by paragraph 2 of Article 94 of the Charter
in the event of a refusal to comply with a judgment would effectively be
suspended, if not cancelled, should it not be possible for one Party alone to
go back to the Court for an interpretation after a refusal by the other Party
based on Article 3, which, according to the interpretation alluded to above,
would enable it to say that there was no need for explanations or clarifi-
cations and that the Special Agreement laid down an obligation to nego-
tiate, but not to reach agreement (cf. paras. 3-5 above).

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CONTINENTAL SHELF (DISS. OP. GROS) 147

7. While the task of ensuring the success of negotiations on the drawing
of the line on the map has not expressly been conferred upon the Court, it
does have that of ensuring full respect for its decision ; yet no precise
bounds have been set to the claim, constantly asserted by one Party in the
course of the proceedings, to possess a competence of its own to negotiate
how the line is to be drawn. It is the Special Agreement which has deter-
mined, in Article 3, the relationship between the Parties with respect to the
drawing of the delimitation line following the delivery of judgment, and
with respect to the eventuality of an interpretation of the Judgment. The
twofold refusal to examine whether that Article 3 is in conformity with
Article 94 of the Charter and with Article 60 of the Statute leaves the
Parties in confusion, and the supposed negotiations without any certain
limits. For my part, I have no doubt that for the Court the two Articles
referred to above prevail over any divergent construction of Article 3 of the
Special Agreement. The argument that negotiations are to be held as to
how the line shall be drawn, going so far as to modify the delimitation laid
down in the Judgment, supposes that by the Special Agreement the two
States waived their obligation to “comply with the judgment of the Court
and with its explanations and clarifications” (Art. 3 in fine). Since Tunisia
does not accept this argument, the Court ought to have settled the issue,
1.e., the problem of the binding force of the Judgment, and thereby to have
made clear what it was prepared to accept of the Parties’ intentions, from
the viewpoint of a proper understanding of its judicial role and the pro-
tection afforded by its Statute to States that bring cases before it. The
Court had stated in 1963 that its Judgments must “remov[e] uncertainty
from [the Parties’] legal relations” U.C.J. Reports 1963, p. 34).

There could clearly be other difficulties with regard to Article 3 of the
Special Agreement and its precise interpretation, but the question with
which I have dealt here seems to me the major one, and there was nothing
to prevent the Court from removing the uncertainty.

8. One word concerning the argument advanced to the effect that the
situation created by the Special Agreement is analogous to that in the
North Sea Continental Shelf cases, where the Court remitted the dispute for
negotiation between the Parties : it suffices to recall that nothing in the
course of those cases occasioned the slightest doubt as to the solemn
intentions of all the Parties to comply with the Judgment, and the Special
Agreement provided that “the Governments ... shall delimit the conti-
nental shelf... by agreement in pursuance of the decision requested from
the International Court of Justice”. There was nothing in this to bring the
Special Agreement into conflict with the Statute of the Court, since the
application of the legal rules was reserved for the Parties by the request.
The ways in which the Court was seised of the 1969 cases and the present
case were entirely different.

*

9. In the second place, I find myself in disagreement with the Judgment
in respect of the way in which the Court set about the search for an

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CONTINENTAL SHELF (DISS. OP. GROS) 148

equitable delimitation of the continental shelf areas as between the Parties,
which I find contrary to the concept of the role of equity in the delimitation
of a continental shelf adopted by the Court in its 1969 Judgment.

10. To take paragraphs 83-101 of the 1969 Judgment, they contain
various indications as to the applicable substantive rules and also the
factors to be taken into consideration ; more especially, the Court affirms
the inherent right of every coastal State to its area of continental shelf, with
the corollary that apportionment is not what is called for, the obligation
not to refashion geography, that of not encroaching upon any other State’s
area ‘of continental shelf, the role of natural prolongation, the absence of
any one method of delimitation solely applicable, the need to balance the
equities, the ascertainment of the effects of particular geographical fea-
tures, examination of the physical and geological structure and of the
natural resources. All this was summed up as follows :

“in short, it is not a question of applying equity simply as a matter of
abstract justice, but of applying a rule of law which itself requires the
application of equitable principles, in accordance with the ideas
which have always underlain the development of the legal régime of
the continental shelf in this field, namely :

(b) the parties are under an obligation to act in such a way that, in the
particular case, and taking all the circumstances into account,
equitable principles are applied, — for this purpose the equidis-
tance method can be used, but other methods exist and may be
employed, alone or in combination, according to the areas
involved” (Z.C.J. Reports 1969, p. 47, para. 85).

And the 1969 Judgment provided in its operative provisions that all these
rules and factors must be taken into consideration. The competence of the
Court, in the matter of delimitation, is definitely limited by this obligation
to apply the rules of law and the relevant factors listed in that para-
graph 85 ; it is a non-discretionary competence, not freedom to act as the
Court pleases. Not only is a goal — equitable delimitation — laid down,
which intrinsically is merely to pose the problem without providing the
solution, but the rules and means for reaching it are also specified ; such is
not the method which has been followed by the Court in the present
case.

11. Thus the Court contents itself in paragraphs 113 and 114 of the
Judgment with some generalities on the equidistance method without
giving the reasons why it has not been employed. Moreover, there is no
prior examination to justify such a decision, when the Court, in acting in
this way, contradicts the indications it gave on this point in 1969. The
reasons referred to in the first lines of paragraph 89 of the 1969 Judgment
for discarding equidistance, which “in certain geographical conditions
[could lead] unquestionably to inequity”, were based on particular geo-
graphical configurations and on their unquestionably inequitable effect,

134
CONTINENTAL SHELF (DISS. OP. GROS) 149

two factors that require examination. Yet in the present case nothing was
done to investigate the precise effect on an equidistance line of the relevant
geographical features in the area of continental shelf under consideration,
the “unreasonable” (the word used in para. 89) results which the equi-
distance method might produce and any modifications to be therefore
envisaged. If the Court stated in 1969 that the concurrent use of various
methods could, in certain situations, enable the desired equitable solution
to be achieved, there was, precisely, all the more necessity to try several
methods, certainly including equidistance in the sector close to the coast
and farther out, to compare their effects, to investigate whether dispro-
portionate effects resulted from this, that or the other relevant geographi-
cal feature, to weigh the equities and only to decide in full possession of the
facts. This was not done, and this lack of a systematic search for the
equitable has produced a result the equity of which remains to be
proved.

12. The Court’s first task was thus to see what an equidistance line
would produce in order to identify the “extraordinary, unnatural or
unreasonable” result to which, it is said, this method might lead.

These adjectives, selected in the 1969 Judgment (para. 24), indicate the
very exigent conditions to be met, and paragraph 96 of that Judgment
emphasizes that “pronounced configurations” deserve the same consider-
ation as normal or ordinary configurations. “Extraordinary, unnatural and
unreasonable” are conditions that relate to the possible effects of the
geographical configuration of the coastline, which must be “examine[d]
closely”, while keeping in mind the other rule that there can be no “ques-
tion of completely refashioning nature” (paras. 85-92 of the Judgment). I
do not think it necessary to dwell upon the extremely precise and detailed
observations in the 1969 Judgment and would merely say that the relevant
Tunisian coastline is as simple as could be wished, short of being entirely
straight, and that the few particular features along that coastline do not
produce “extraordinary, unnatural or unreasonable” results. It should be
noted that the entire Gulf of Gabes region, of which the Parties did not
leave one element unglossed, has no particular effect on the plotting of an
equidistance line, any more than the island of Jerba. To consider that
the junction of the north-south segment of the Tunisian coast with its
west-northwest segment can be held unreasonable or even unnatural is
astonishing (cf. a comparable situation in the delimitation of the con-
tinental shelf between Spain and France effected by the Treaty of
29 January 1974). It is thus not from the aspect of the coastline that a
difficulty might arise in the first sector ; the sector more to seaward is no
more complicated and the effects of an equidistance line are normal,
provided no attempt is made to refashion geography.

13. A court of justice only has recourse to equitable principles if faced
with a legal situation such that the result obtained by applying the rules of
law on the delimitation between two States of an area of continental shelf
appears inequitable on account of the presence in the area under consi-
deration of geographical features the effect of which is disproportionate to

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CONTINENTAL SHELF (DISS. OP. GROS) 150

their relevance and the necessity of their employment for the delimitation.
A court of justice does not modify a delimitation because it finds subjec-
tively that it is less advantageous to one party than to the other, for this
would be to embark upon the vain task of equalizing the facts of nature ; it
notes, having taken into consideration all the factors contemplated by the
applicable law, that some of those factors, which are relevant, have dis-
proportionate or inordinate effects which, perhaps, may generate inequity
— which remains to be demonstrated. Only then, after this has been shown
to be the case, comes the problem of balancing the equities as between the
two Parties (contrary to what is stated in paras. 70 f. of the Judgment) and
their application to the construction of the delimitation line.

14. The 1969 Judgment holds “the consequences of a natural geogra-
phical feature” to be inequitable where, because of its size and the remote-
ness of an area from the coast, an irregularity in the coastline would have a
magnified effect upon an equidistance line (7. CJ. Reports 1969, p. 49,
para. 89 (a)). I find it impossible to point to a single “natural geographical
feature” on the Tunisian coast that meets this double criterion : the con-
struction of the line is governed in the north by the Kerkennah Islands and
in regard to the southern coast by specific points on the coasts of the
Parties. Islands separated from the coast by an area of shoals less than 12
miles wide, which is the case of the Kerkennahs, are not an abnormal
geographical feature and must be employed as base points for lines of
delimitation. In its Decision of 30 June 1977, the Court of Arbitration
posed the question of inequity in the case of the Scilly Isles, taking account
of the distortion in the direction of a line based on the Scillies (more than
31 miles from the coast) instead of a point on the coast of the United
Kingdom, as compared with the direction of a line generated from the
westernmost point of the French island of Ushant (cf. the principles stated
and their application to the geographical facts in paras. 238-245 and 248-
252 of the Decision). I shall quote only one sentence which, to my mind,
also serves to define the present problem :

“The question is whether, in the light of all the pertinent geogra-
phical circumstances, that fact [the mere presence of the Scilly Isles in
the position in which they lie] amounts to an inequitable distortion of
the equidistance line producing disproportionate effects on the areas
of shelf accruing to the two States.” (Para. 243 in fine.)

Let us pose the same question with respect to the Kerkennah Islands.
The Judgment imposes a half-effect after finding that these islands are
highly material. Without dwelling upon the contradiction between this
assessment and the refusal to draw the proper conclusion from it, I would
simply say that the map does not appear to me to reveal any dispropor-
tionate effects on a delimitation line which would be due solely to the
presence of these material islands in the position in which they lie, while
refraining from comment as to the existence of an inequitable deviation
from a line which the Court has derived ex nihilo. Where the balance of
interests is concerned, in this instance, a difference of some thousands of

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CONTINENTAL SHELF (DISS. OP. GROS) 151

square kilometres have tipped the scales to the detriment of one of the
Parties, so that the methods behind this “equity” merited some serious
checking.

15. Even applying, as the Judgment does, the idea that any method is as
good as another for the delimitation of a continental shelf if it enables an
equitable delimitation to be reached, it is necessary that the delimitation be
equitable for both Parties — a conditio sine qua non — and the manner in
which the Court has searched for what is equitable never included, by way
of checking the method it had decided to adopt, any strict verification of
the equity of the results in accordance with the indications given by the
1969 Judgment for the purpose of ascertaining whether an equidistance
line is equitable. No method should be exempt from this control, when
equity is involved. After contenting itself with a single method, the pro-
longation of the land frontier — even leaving aside the imprecisions of
reasoning on which this method has been grounded in the present case —,
the Court failed to crosscheck the equity of the results and confined itself
to assertions unchecked by other methods, which it ought at least to have
attempted to apply, even if it had eventually — though only after serious
consideration — discarded them. It is not enough to say that the equidis-
tance method would not have resulted in the most equitable delimitation,
when the conditions for excluding it were neither ascertained to exist nor
even given proper thought and the Court has failed to examine the
extraordinary, unnatural and unreasonable results of its own manner of
proceeding. In the Court’s approach, the geographical configuration of the
coasts relevant to the delimitation was left on one side, and the examina-
tion proceeded by estimates of directions and proportions, with a priori
postulates being substituted for actual cartographic fact (cf., for example,
para. 133 of the Judgment). All the geographical elements of the actual
situation were ignored, from the viewpoint of their relevance not only to
the delimitation but to verification of the equitable solution claimed to be
reached with the aid of other techniques. In sum, the Tunisian coastline
was effaced, and the Court reasoned as if some geographical features did
not exist — it then found there was no need to calculate their possible
effects on the delimitation to see whether they resulted or not in inequi-
table disproportion through their presence in the places where nature had
put them. This is a perfect example of trying to unmake geography.

16. When the Court, in its 1969 Judgment, did not rest content with
saying that a continental shelf delimitation should be carried out in
accordance with equitable principles, but amassed safeguards by charac-
terizing equity as the application of some lengthily expounded rules and
principles of law, taking account of carefully specified factors, it was
defining its conception of the role of equity in the delimitation of the
continental shelf. While the Court is entitled to change its conception of
equity in comparison with the 1969 Judgment, the use of a few quotations
from that Judgment does not suffice to prove that no such change has
taken place. What is in issue here is the substance of the law applicable to
the delimitation of the continental shelf, not the old or novel formulae

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CONTINENTAL SHELF (DISS. OP. GROS) 152

employed but the decisions taken and the reasons given in the present
Judgment ; and it is on those points that I differ entirely from the present
views of the Court.

To simplify, I need only begin with a few general remarks. The question
is : exactly what meaning should be ascribed to equity in the delimitation
of continental shelf areas, leaving aside all discussion of equity in munici-
pal law, equity in the philosophy of law and the diversity of possible
equities ? A court only decides the case before it without being able to
deliver judgments of principle with a general scope. Here, equity is the
goal, and the way to reach that goal is to apply to the relevant facts such
legal methods and reasoning as are suited to the various factors that go to
make up that unique phenomenon which is the case referred to the
court.

17. The present Judgment has chosen to divide the areas said to be in
dispute, i.e., those where the claims of the Parties overlap, while declaring
that this division produces the equitable result prescribed by the interna-
tional law of delimitation. The ideological basis is made shaky by various
elements which I shall briefly point out in subsequent paragraphs, but the
main thrust of the Judgment’s approach seems to be that, equity being the
goal, proportionality is the method — the Court even says “principle” — for
reaching it ; and the Court makes general use of it throughout the present
Judgment. This goes much farther than the remark in the 1969 Judgment,
under (D) (3) of the operative paragraph, indicating proportionality as a
verifying factor in the case of a delimitation carried out in accordance with
equitable principles, but not as a method for achieving that end. Similarly,
the Decision of 30 June 1977 by the Court of Arbitration stresses this minor
status of proportionality : “It is rather a factor to be taken into account
in appreciating the effects of geographical features on the equitable or in-
equitable character of a delimitation” (para. 99) — and in various places the
Court of Arbitration declared that, whatever the method used for achiev-
ing an equitable delimitation, that delimitation “is a function or reflection
of the geographical and other relevant circumstances of each particular
case” (para. 97). The present Judgment drastically alters the restricted role
which properly belongs to the proportionality factor, and the justice of
the calculations it employs is not borne out by any of the precautions
taken in a delimitation which took account of the proportionality of the
areas concerned (cf. sketch-maps 1, 2 and 3 in the article by José Luis de
Azcarraga on the delimitation effected by the treaty between France and
Spain, Rivista española de derecho internacional, Vol. XXVIII, pp. 131-138).

As between these two ways of looking at the matter there is a difference
which, to my mind, is fundamental : the present Judgment has ruled out
the geological argument and effaced the geographical configuration, and
has chosen to draw lines of direction which no principle dictates and to
adopt angles without justifying their selection in terms of any relevant
facts. This is a novel approach which departs from the conception of equity
expressed by the 1969 Judgment and applied by the 1977 Decision ; is it
still a conception of equity ?

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CONTINENTAL SHELF (DISS. OP. GROS) 153

18. There is a profound gulf between an equitable solution to a problem
of continental shelf delimitation which is founded upon the rules of law
applicable to relevant facts accurately and fully taken into account, and an
equitable solution which is founded upon subjective and sometimes
divided assessments of the facts, regardless of the law of delimitation,
through an eclectic approach to a result unrelated to the extant factors and
without any verification other than calculations prompted by chance of
coincidence. That is a solution not through equity, but through a com-
promise sought at one and the same time between the claims of the Parties
and the opinions held within the Court.

On the occasion of the Judgments of 25 July 1974 (Fisheries Jurisdiction,
United Kingdom v. Iceland and Federal Republic of Germany v. Iceland,
Merits) and the Advisory Opinion of 3 January 1975 (Western Sahara), I
stated my views on the sort of amicable conciliation attempted by the
Court (see I.C.J. Reports 1974, pp. 148 f. and I.C.J. Reports 1975, pp. 75-
77). The same observation holds good in this case. The present Judgment
discloses more. than any other consideration the quest for a solution
equalizing the interests of the two States. There would be nothing objec-
tionable in this if one were confronted here with an “equality within the
same plane” or with that “geographical situation of quasi-equality” which
calls for “abating the effects of an incidental special feature from which an
unjustifiable difference of treatment could result” (C.J. Reports 1969,
p. 50, para. 91). These again are very precise conditions to be fulfilled
before seeking to equalize the balance of interests, and they are not satis-
fied in the factual circumstances of this case; the formula of quasi-
mathematical equality by which the Judgment proceeds does not corres-
pond to the relevant facts and is not substitute for a delimitation method
based on the actual configuration of the coasts of the two Parties instead of
coastlines as transformed by estimates of angles or directions in a veritable
reconstruction of geography.

19. Much more is here involved than a difference of opinion as to how
equity should be conceived : what is at issue is the decision dividing a
continental shelf between two States which requested that it be delivered in
accordance with the law. If a State claiming a right to an area of continental
shelf really possesses that right such as it describes it, it is not equity to
deprive it of it but an error of law, and therein lies a far-reaching complaint
since the judgments of the Court are irreversible as between the Parties.
Equity is not a sort of independent and subjective vision that takes the
place of law. The Judgment states that there can be no question in the
instant case of applying ex aequo et bono. Statements are one thing, the
effective pronouncements of the Judgment are another. For the foregoing
reasons, and those I give below, it is not equity which has struck me as
presiding over the construction of the Judgment.

20. The first “historical justification” of the line adopted by the Court is
devoid of either historical or juridical relevance. It involves justifying the
maintenance of a limit fixed unilaterally by Italian Instructions of 16 April
1919 issued by the governor of the colony with a view to the introduction of

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a régime for the surveillance of fishing and coastal traffic, a text which
became ineffective with the advent of the 1940 war ; this was a strictly
functional limit lacking all pretension to be anything else, for at a period
when the territorial waters were three miles broad, as the text points out, it
was for the purposes of this special policing of fishery concessions and
local traffic that it was extended into the high seas. How is it possible to
believe that a specialized maritime limit extending into the high seas could,
at the period in question, have been tacitly accepted as dividing areas of the
high seas which were not by any token subject to the sovereignty of States
as then defined by international law ? This is a succession of unfounded
hypotheses and impossible juridical conceptions. Well may the Court now
regard a “historical” buffer zone as a modus vivendi de facto: legally
speaking, it is still nothing more than it was between 1919 and 1940, that is,
the unilateral claim of one State to surveillance of its sedentary fisheries.
Retroactively to cast the mantle of historical justification over this zone —
which is, besides, an imprecise area, for it is not defined on the map —
is a misuse of words which voids them of all import (cf. paras. 93-95 of
the Judgment, dealing with these Instructions of 1919, which were based on
an alleged agreement, neither identified nor dated, and “approximately”
delineate an area of surveillance without giving any co-ordinates : com-
plete text in Ann. 43 to Libyan Counter-Memorial, Vol. II). Tunisia
has never ascribed to that demarcation any other meaning than related to
the necessary surveillance of the respective sedentary fisheries of the two
States ; one cannot pass from this to the notion of the boundary of territorial
waters, and from the latter to the notion of the boundary of continental
shelf areas, as if the confusion of categories were forensically acceptable.

The fact that the Parties have never reached agreement on the boundary
of their territorial waters, right up to the present time when they have
formally claimed in court that to do so lies within their competence, should
have given the Court pause before it proceeded to construct this unfore-
seen consensus between two States which are purported to have thus,
without realizing it, already settled their continental shelf delimitation
problem long before they began negotiating about the boundary or refer-
red the matter to the Court.

21. The second justification indicated by the Judgment in support of
that segment of the line delimiting the continental shelf as between the
Parties which runs 26° north-east from the starting-point of Ras Ajdir is
the “line of adjoining concessions” of the two States which “corresponds
furthermore to the line perpendicular to the coast at the frontier point”
(Ras Ajdir): that makes quite a few correspondences. The historical
boundary elucidated in the previous paragraph coincides with the limit
deriving from the perpendicular to the coast, which in turn coincides with
the line between the concessions delineated by each of the two Parties.
From these chance encounters the Judgment deduces something more than
mere factual concordance : namely proof of the equitable character of the
line delimiting the continental shelf as between the Parties. Each line
purportedly consolidates the other : the historical, the perpendicular, the

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line between concessions. One general comment first : a line cannot con-
solidate anything if it is fragile, and the sum of controversial theses remains
a controversy. The historical line, as we have seen, represents an outdated
demarcation for the policing of sedentary fisheries which cannot have any
influence on a continental shelf delimitation line, which must be sought
within its own appropriate legal framwork. The perpendicular to the
coastline is a method of which the Court has not made any scientific use in
the present Judgment, since it discloses no serious study of a perpendicular
to a coastline which has moreover remained unspecified ; what the Court
has been able to adopt is not a genuine perpendicular, which would
necessarily have to begin by delimiting the two Parties’ territorial waters —
competence for which is not conferred by the Special Agreement and is
formally refused by the Parties —, but an angle of 26°. So there has been no
employment of the coastal-perpendicular method — neither line nor coast-
line is relied on. There is just an allusion to a coincidence between an
undrawn line and an approximate angle — nothing is demonstrated.

22. So there remains the third argument from concordance : the line
between the concessions. The line of the concessions is something other
than a continental shelf limit and Tunisia, for its part, has formally indi-
cated that “pending an agreement between Tunisia and Libya defining the
limit of their respective jurisdictions over the continental shelf” (Judg-
ment, para. 21), one licence-limit was defined by. an equidistance line. It
cannot tenably be argued that the Libyan concession line enjoys any
validity whatsoever vis-a-vis Tunisia, which, by its conduct, its attempts to
negotiate the limit of the continental shelf, and finally its recourse to the
Court, has constantly shown that there was no accepted or acceptable limit
as between the two States. The Court rightly declares that a line of con-
cessions is a non-opposable unilateral act ; all that Tunisia’s conduct can
be seen as implying is that it has been waiting for delimitation to be
effected by negotiations or by the Court, and to deduce from that attitude,
from the failure of every attempted negotiation and from the submission
of the matter to the Court that Tunisia, without realizing it and while
expressing the reverse (Judgment, para.21 in fine), has accepted the
Libyan concession line is an error of law which destroys this basis for the
initial segment employed by the Court. The Court’s first finding was
enough, moreover : no unilateral act for the delimitation of the continental
shelf on the part of an interested State is opposable to another interested
State — that is an axiom of international relations, and to assert the
opposite would destroy the very basis of the theory of the continental shelf
according to which it is to be delimited by agreement between the parties or
by way of adjudication. That point is beyond the shadow of a doubt. But if
the Libyan concession line is not opposable to Tunisia, by what coinci-
dence does it become the delimitation line of the continental shelf and, on
that account, opposable to Tunisia ? The transformation of the unilateral
into the equitable remains unexplained. The Judgment has taken on this
point a position which, in my view, is opposed to the applicable rules of
law.

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23. The same remark applies to the second angle of direction discovered
by the Judgment for application to the sector farther out to sea. The angle
of 52° supposed to represent a “veering” of the coast shows the persistent
effacement of the relevant coasts ; at that position it is the Kerkennahs
which influence any delimitation, not directions of the coastline. As for the
reasoning given in paragraphs 128 and 129 of the Judgment in order to
justify the angle of 52°, it merely serves to demonstrate that any calculation
chosen for the purpose can be substituted for the facts of geography.

24. The fact that the Judgment relies on such controversial and fragile
arguments for the deduction of a line is disquieting in itself ; history is
silent, all that the present reveals is conflicting claims, and the construction
of the equitable is no longer based on anything but unfounded calculations
and assertions as to the facts of the case, the visible factors, the rules of the
applicable law. But the gravest conclusion is that, as thus conceived, the
Judgment does not provide a just solution to the problem posed. To term
a limit and its motivation equitable is no sufficient proof of equity; a
judgment is only equitable if it establishes the law between the parties. This
Judgment falls short of the mark, because the Court has not managed to
present a solution which truly balances the interests of the Parties, and as
the solution is not equitable for one, it cannot be equitable for the other. In
seeking equality when the two States are not on the same plane, propor-
tionality in arbitrary calculations, and in ignoring the relevant geographi-
cal peculiarities and their effect on the delimitation, the Judgment has
strayed into subjectivism.

For the past ten years or so, States have been less and less inclined to
present themselves before the Court ; when they have voluntarily chosen to
come, the Court must answer their request and declare the law, not attempt
a conciliation by persuasion which does not belong to the Court’s judicial
role, as long ago defined by the Court itself.

(Signed) André Gros.

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