DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya)

PUBLIC INTERNATIONAL LAW

S. PRATHYUSHA

G. NAGA LAHARI

ROLL NO: 2013048

V SEMESTER

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PLAGARISM

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CERTIFICATE

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ACKNOWLEDGEMENT

I consider myself lucky that I got the chance to do a work on this topic that was to “case

concerning the continental shelf (Tunisia/Libyan Arab Jamahiriya).”

I thank the subject teacher, S. Prathyusha, for letting me choose the topic.

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Abstract

A continental shelf is a term that refers to the ledges which protrude from the land of

continental mass into an ocean. This is which enveloped with a comparatively shallow zone

of water (app. 150- 200 metres depth). This especially after a long delay mixes into the

depths of the ocean which is situated about thousands of metres deep. These shelves occupy

about eight percent of the total area of oceanic water and their size also varies relatively

from place to place. It is extended boundaries of each continent and also the adjoining

coastal plain. This was a component of the continent during glacial periods, but remains

below the sea during interglacial periods. The continental shelves are loaded with plenty of

oils and natural gas resources and quite frequently are a host to extreme scale grounds for

fishing.

The continental shelf case between Tunisia and Libya, the principles and the rules of the

International law which are applicable to delimitation of the areas of the continental shelf

appertaining respectively to the Tunisia and Libya in the region, concerned in dispute. It also

enumerates the relevant circumstances to be considered into account for the purpose of an

arriving at equitable delimitation and also specified the practical method, which is used for

the delimitation itself.

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TABLE OF CONTENTS

TITLE PAGE NO

PLAGARISM 02

CERTIFICATE 03

ABSTRACT 04

1. OBJECTIVES 08

2. INTRODUCTION 08

3. HYPOTHESIS 09

4. RESEARCH METHODOLOGY 09

5. CONTINENTAL SHELF IN INTERNATIONAL LAW 09

6. INDIAN POSITION IN CONTINENTAL SHELF 11

7. CONVENTIONS OF CONTINENTAL SHELF 11

8. FACTS & DISPUTE 12

9. SUBMISSIONS OF PARTIES 13

10. THE PARTIES: DELIMITATION METHOD 13

11. DECISIONS BY ICJ 14

12. PRINCIPLES 16

13. JUDICIAL APPROACH OF CONTINENTAL SHELF 16

CONCLUSION

BIBLIOGRAPHY

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List of cases:

1. Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ICJ

Reports, 1982

2. Aegan sea continental shelf( Greece v Turkey), judgement of 19 December 1978, ICJ

Reports 1978, 3, at 36

3. North Sea Continental Shelf case, ICJ Reports 1969

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1. OBJECTIVES

The paper deals with the interpretation of “case concerns the Continental shelf of

Tunisia/Libyan Arab Jamahiriya” and regarding the conventions of continental shelf.

2. INTRODUCTION

In ancient times, the navigation and fishing were the primary sources of the seas. As the man

progressed, pulled by the technology in some instances and pushing that technology at the

other times in order to satisfy his/ her needs, a rich bounty of other resources and those uses

were found underneath the waves and under the ocean floor like minerals, natural gas, oil,

sand and gravel, diamonds and gold etc,.

A continental shelf is the term that refers to ledges that protrude from the continental land

mass into an ocean/sea. This is enveloped with a comparative shallow zone of water (app.

150-200 meters deep). This eventually mixes into the depths of an ocean which is around

thousands of kilometres deep. These shelves occupy around 8% of the total area of ocean

water and the size varies relatively from place to place. It is an extended boundary of every

continent and also the adjoining coastal plain. This was a component of the continent during

glacial periods, but those remains below the sea level during interglacial periods. The

continental shelves are loaded with plenty of oil and natural gas resources and they are quite

frequently a host to the huge scale grounds for fishing.1

There are many rights and liabilities upon the coastal states and their extent .Further various

conventions like Geneva convention of 1958 and the convention on the law of sea, 1982 have

made the acceptance of the continental shelf rights by the states within less than 13 years and

is very important for the regulation of exploration and the exploitation of resources of the

continental shelf.2

The submarine areas concerned may be deemed to be actually part of the territory over which

the coastal state already has dominion in the sense that although covered with water, they are

a prolongation or continuation of that territory, an extension of it under the sea.”3

1 Ian Brownlie, Principles of Public International Law, Oxford University Press, 6th edn., 2003, p. 2062 Convention on the Continental Shelf 1958, http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_1_1958_continental_shelf.pdf>, last visited on 12th October, 2015 at 8 PM3 ICJ Reports, 1969, pp.3, 39; 41 ILR, PP. 29, 68

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3. HYPOTHESIS

The continental shelf case between Tunisia and Libya, the principles and the rules of the

International law which are applicable to delimitation of the areas of the continental shelf

appertaining respectively to the Tunisia and Libya in the region, concerned in dispute. It also

enumerates the relevant circumstances to be considered into account for the purpose of an

arriving at equitable delimitation and also specified the practical method, which is used for

the delimitation itself.

4. RESEARCH METHODOLOGY

4.1. Research Questions1) What is the nature of continental shelf under International law and why it is included?

2) What are the conventions of continental shelf?

3) What sources are applied to the case by the court of law?

4) What are the applicable principles and rules of International law?

5) What is the practical method that should be applied to the delimitation zone to settle

the dispute between the two nations?

4.2. Sources of Data

The primary sources of data are internet source and books.

4.3. Method of Writing

The research paper is in theoretical in nature.

4.4. Mode of Citation

The mode of citation used in this paper is Harvard Blue Book Citation.

5. CONTINENTAL SHELF IN INTERNATIONAL LAW

The meaning of Continental Shelf, where the Shelf seas occupy nearly 7% of the area of the

world’s ocean but their economic importance is significantly wider.4 Continental shelf is the

edge of the continent that which lies under the ocean. It extends from the coastline of a

continent to a drop-off point, which is called as shelf break. From the break, the shelf

descends towards the deep ocean floor in which, it is called as continental slope. The

continental shelf is an vital maritime zone, one, which holds many resources and vital

4 Available at : http://noc.ac.uk/science-technology/earth-ocean-system/coastal-seas/shelf-seas, last seen on 14th September, 2015

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habitats for the marine life. The majority of the world’s continental shelf is not known and

unmapped.5 The term Continental Shelf was first used in the year 1887 by Hugh Robert Mill.

It is the gently sloping undersea plain between the continent and the deep ocean. The

continental shelf is an extension of the continent’s landmass under the ocean.6

The formation of Continental shelf, over millions of years, organic (which are remains of

plants and animals) and inorganic (the sediments) materials are formed as continental shelves

and its external link were formed in between the glacial periods as the ocean flowed over the

continents forming a shallow areas along the coasts. Nearly, 18,000 years ago, during the

height of the Pleistocene ice ages, the external link, much of what is now known as

continental shelf was actually above water level.7During the interglacial periods, like today,

the continental shelf is submerged under shallow waters. The waters of the continental shelf

are rarely more than the 500 feet depth, compared to an open ocean which can be about miles

deep.  Most of the continental shelf was exposed as dry land during glacial periods.

The definition of continental shelf, Article 1 of the Convention on Continental Shelf, 1958

defined that the shelf based on its exploitability instead of depending upon the conventional

geological definition, which referred to be seabed and subsoil of the submarine zones next to

coast but not within the territorial sea, that which extends to a depth of 200 meters or ‘beyond

that limit to where the depth of the superjacent waters admits of the exploitation of the natural

resources of the said areas’. It is the submarine prolongation of a coastal state landmass to the

outer edge of the continental margin. The continental shelf, which falls under the coastal

state’s jurisdiction areas are beyond the continental margin are, however, the part of

international seabed area.8

The continental shelf is included in the International Law, The continental shelf, in its

geological sense, is very un-equally distributed around the continents. The importance of the

continental shelf, the necessity for the special legal regime applicable to it, however, become

apparent until the question of nature and the extent of coastal state’s rights to explore and also

exploit the natural resources of continental shelf, which was given a new urgency by the

discovery in subsoil of the sea-bed of a mineral sources of wealth, namely the petroleum.

5 Available at : http://www.state.gov/e/oes/continentalshelf/, last seen on 14th September, 20156 Charles D. Hounshell And L Hugh Kemp,The Continental Shelf: A Study In National Interest And International Law7 Available at : http://marinebio.org/oceans/continental-shelves.asp, last seen on 14th September, 20148 Available at : http://www.spilmumbai.com/uploads/article/pdf/principle-of-delimitation-of-continental-shelf-areas-between-states-23.pdf, last seen on 14th September, 2014

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Furthermore, through the advances in engineering and the scientific research, the submarine

oil bearing strata became capable of the exploitation and exploration by means of devices

operating from the sea-bed of high seas. As the importance of continental shelf was of

national importance in arena of legal sense, geographical, social and economical, it was

included in international law.9

6. INDIAN POSITION IN CONTINENTAL SHELF

Indian position on continental shelf has been made very clear that under Section 6 of

Maritime Zones Act of 1976.Part 1 of the section lays down that, “the seabed and the subsoil

of submarine areas are adjacent to the coast but outside the area of territorial sea, to the depth

of 200 meters, or, beyond the limit, to where the depth of superjacent waters admits the

exploitation of natural resources of the said areas”. The Act also lay down under section 6,

Para 3 that “the Union has:

1. Sovereign rights for exploration, exploitation , conservation, and management of all

resources;

2. Exclusive rights and jurisdiction for the construction, maintenance or operation of

artificial Islands, off-shore terminals, installations and other structures and devices

necessary for the continental shelf or for convenience of shipping or for any other

purpose.

3. Exclusive jurisdiction to authorize, regulate and control scientific research

4. Exclusive jurisdiction to preserve and protect the marine environment and to prevent

and control marine pollution”.10

7. CONVENTIONS OF CONTINENTAL SHELF

The concept of the continental shelf has acquired its importance when it was propounded by

the US President, True man on 28th September, 1945.While the nations over centuries have

alternatively made it expansive and narrow claims to the seas, beyond their coasts, the origin

of the modern doctrine is often said to be the Truman Proclamation of 1945, by which the

President Truman proclaimed:

9 F. V. W. Penick , Halifax & Nova Scotia,The Legal Character of the Right to Explore and Exploit the Natural10  Wolfgang Friedman, ‘The Future of the Oceans’,pg.9

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“Having the concern for urgency of conserving and the prudently utilizing its natural

resources, the Government of United States regards the natural resources of subsoil and the

seabed of continental shelf beneath the high seas but the contiguous to sea coasts of the

United States as appertaining to the United States, the subject to its jurisdiction and also

control.”India claimed for the first time in 1955 and It took less than 13 years to accept

concept of the extension of sovereignty powers over the continental shelf. The conventions

are:11

1) Geneva Convention, 1958 and

2) Continental shelf under the convention on law of the sea, 1982

8. FACTS AND DISPUTE

The facts of the case, the Republic of Tunisia and the Socialist People’s Libyan Arab

Jamahiriya are both situated on the northern coastline of the African Continent, fronting on

the Mediterranean Sea. While parties have not concluded any agreement delimiting any part

of continental shelf, has not prevented a certain amount of the exploration and exploitation.

Each party has granted concessions in respect of areas regarded by the party concerned as

appertaining to itself. Tunisia had an existing concession line. In 1974, Libya granted a

concession the boundary of which was a line drawn from Ras Ajdir at some 26° to the

meridian, further west than the equidistance line, so the result was an overlapping of claims

in an area some 50 miles from the coast. Following protests in 1976 by each Government at

the activities of the other, the parties signed a special agreement in 1977 by which the matter

was brought before the International Court of Justice.

The dispute, Libya and Tunisia requested the court to: determine what the principles and

rules of International Law may be applied for delimitation of the area of continental shelf

appertaining to each of the other and decide according to the equitable principles, and

relevant circumstances which should characterize the area, as well as new accepted trends in

the Third Conference on the law of the Sea, and should clarify the practical method for the

application of those principles to enable the experts to delimit these areas without any

difficulties.12

11 Central Law Publications , International Law and Human Rights, 139-141,18th Edition.12 Professor Gilbert Gidel for the 1952 Madrid Conference of the International Bar Association; translated from the French text by L. F. E. Goldie, Lecturer in Law at Canberra University College, The Continental Shelf

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9. SUBMISSIONS OF THE PARTIES13

LIBYA TUNISIA A state is entitled ipso facto and ab intio

to the continental shelf which is the

natural prolongation of its land territory

into and also under the sea.

Any delimitation should leave as much

as possible to each party all those parts of

continental shelf that constitute its

natural prolongation.

The delimitation should be effected in such a

way, taking in to account the physical and the

natural characteristics of the area, as to leave

to each party all those parts of continental

shelf that should constitute a natural

prolongation of its land territory into and

under the sea, without any encroachment on

the natural prolongation of the land territory

of the other.

The natural prolongation of the land

territory of a state into and under the sea

establishes ipso jure title to the

appurtenant the continental shelf.

The delimitation must not, at any point,

encroach upon the area within Tunisia ahs

well established historic rights.

For the purpose of achieving an equitable

delimitation, the whole of the sea-bed

and sub-soil beyond the low-water mark

along the coast of each party is to be

taken in to the account.

The delimitation must be effected in

conformity with equitable principles and

taking account of all the relevant

circumstances which characterize the case.

Given the particular of geographical

configuration of the equidistance method

would be inequitable, inappropriate and

not in conformity with international law.

The delimitation should lead to the drawing of

a line which would appreciably depart from

lines which result from taking into account

the geomorphologic factors peculiar to the

region, in particular the existence of a

crestline determined by the Zira and Zuwarah

Ridges.

10. THE PARTIES: DELIMITATION METHOD

13 Charles D. Hounshell And L Hugh Kemp,The Continental Shelf: A Study In National Interest And International Law

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Libyan Method: Construct a line of delimitation which is consistent with the northward

direction of the natural prolongation

Tunisian Method: It has two kinds. Firstly, the first group consists in defining the natural

prolongation of the two states on the basis of geological, geophysical and bathymetric data,

secondly, the group is based on the configurations of the coasts of the two states, with a view

to implementing the concepts of the coastal front and of proportionality.14

11. DECISIONS1) The Court does have any jurisdiction in this case because both the States have

submitted copies of the Special Agreement they decided on in order to petition,

14 Mark B. Feldman, the American Journal of International Law, Vol. 77, No. 2 (Apr., 1983), pp. 219-238

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the Court to arbitrate on this dispute. Since, both the parties petitioned the Court to

hear this case and both gave their consent to have the Court hear it.

2) The Court ruled that it did have any jurisdiction to apply the practical method,

which is based on the principles and the circumstances that applied to this case to

the delimitation zone contrary to assertion of the Libya. Because the states only

gave themselves four months to put the Court’s decision in to play after the ICJ15

made its ruling, the Court also decided that the intent of this time was not for the

negotiation, but for putting the practical method designed by Court into effect.

3) The Court also held that the only area it could rule on was the area of the

continental shelf, which was not affected by the jurisdiction of another state unless

the treaty or an agreement was already in place between the non-included state

and either the Tunisia or the Libya. For example, because there was already an

existing treaty between the Tunisia and Italy, concerning their sea boundaries, the

Court need to take into account, that the jurisdiction of Italy when deciding the

delimitation area between Tunisia and Libya, because that area was already

decided. On the other hand, there was no former agreement with the Malta

between either States concerning the jurisdiction of shared sea level area.

Therefore, the Court ruled that it could not take into account any area that was

shared between Libya and Tunisia that was also affected by the jurisdiction of the

Malta because Malta had not given any of its consent to have matters concerning

itself arbitrated.

4) The Court also concluded there was no way to arbitrate this dispute using only the

natural prolongations of the states ‘of natural territory based on the natural

baseline of two states because of position of the two baselines. Therefore, the

Court decided that because it was one continental shelf, the only equitable

solution, which was to divide the zone into two sectors and then divide those

sectors in the different way. The first zone was decided on basis of a historical

boundary of Libyan petroleum concessions. Thus, from Ras Ajdir to the point 33

degrees 55’ N, 12 Degrees E the line of the delimitation will be marked by a 26

degree angle. The second sector uses the Kerkennah Islands as a marking point to

divide this sector.16

15 International Court of Justice16 Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), International Court of Justice Reports, 1982.

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12. PRINCIPLES

a) Continental shelf is important in present case because it marks the area in

question between the both the states and what rights the states have within this sea

level zone.

b) Jurisdiction is also an important aspect because the Court could only decide on

the zone that was not considered as part of the territory of another uninvolved

state which is malta.

c) Relevant past circumstances were useful in the case because they help the Court

to decide how the delimitation zone should be divided. The Court also used

previous Libyan petroleum concessions made to Tunisia to decide which area

should be under whose control.

d) Determining the baseline of the states was extremely important in this case

because the Court found there was no way to decide this cause by using the

tradition method of prolonging natural territorial jurisdiction.

e) Equity Principle was a vital one because the delimitation zone needed to be

divided equally between the two states as possible taking into the account the

natural resources found there in order to assure that one states jurisdiction over the

certain area of territory was not arbitrarily taken away.17

13. JUDICIAL APPROACH OF CONTINENTAL SHELF CASES

In North Sea Continental Shelf case18, Germany’s North Sea coast is concave, while the

Netherland’s and Denmark’s coasts are convex in shape. If the delimitation had been

determined by the equidistance rule19, Germany would have received a smaller portion of the

resource rich shelf relative to the two other states. Thus Germany argued that the length of

the coastlines be used to determine the delimitation. Germany wanted the ICJ to apportion the

continental shelf to the proportion of the size of the states adjacent land and not by the rule of

equity. The ICJ held that ultimately urged the parties to “abate the effects of an incidental

special feature [Germany’s concave coast] from which an unjustifiable difference of

treatment could result.”In subsequent negotiations, the states granted to Germany most of the

additional shelf it sought. The cases are viewed as an example of “equity praeter legem”, that

17 Id18 I.C.J. Reports 196919 Drawing a line each point of which is equally distant from each shore

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is, equity “beyond the law”, when a judge supplements the law with equitable rules necessary

to decide the case at hand.20

The Aegean Sea and its islands have been at the heart of the ongoing historical dispute

between Greece and Turkey. The primary issues creating tension in the Aegean are the

extension of territorial waters, air space restrictions, sovereign juristiction of the island of

Imia, and the exploitation and delineation of the continental shelf region. In the Agean sea

continental shelf case if 1978, the court for instance noted that “legally a coastal state’s rights

over the continental shelf rights are both appurtenant to and directly derived from the state’s

sovereignty over the territory abutting on that continental shelf” and that “continental shelf

rights are legally both an emanation from and an automatic adjunct of the territorial

sovereignty of the coastal state.21

CONCLUSION

Each of maritime boundary disputes is unique or monotypic and has the fundamental

importance in any consideration of law of the maritime boundary delimitation. The

emergence of various new states, with the consequent increase in the maritime boundaries,

has been served to highlight the significance of this idea. This has also rendered the

inadequate application of a global or a general rule which is embodied in the principle of the

equidistance (equity) as it is evident from the case laws as well. This fact has also militated

against the reception of principle of the equidistance in both conventional and the customary

law of the maritime boundary delimitation. A corrective role for the equity is thus effectively

ruled out. The Equity cannot be viewed as correcting to the application of the rule of law of

equidistance where that the rule would lead to the hardship on either of the parties. Emphasis

has to be laid down on achievement of an equitable solution in particular situation by

applying to all relevant principles. The variety of maritime situations also prevents the Third

United Nations Conference on the Law of Sea from producing any definitive rules on the

maritime boundary delimitation, investing the tribunals dealing with such disputes with wide

powers of the discretion. The task of the judge is to produce an equitable and should just

result in the particular case. To reach such a result, the judge has to take into consideration of

relevant circumstances and also the governing principles which would do justice to both the

parties. This can also be achieved not only by balancing the various circumstances, but also

by balancing the interests of conflicting parties so as to serve their cause.

20 http://courses.kvasaheim.com/ps376/briefs/ojf38491brief4.pdf21 Aegan sea continental shelf( Greece v Turkey), judgement of 19 December 1978, ICJ Reports 1978, 3, at 36

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This case is important because the both nations (Libya and Tunisia) are now bound by the

decisions made by the ICJ in this case. This case also affects their jurisdiction over the areas

of water which they may claim as their own and also assert certain rights and jurisdiction

over it.

BIBLIOGRAPHY

Books

1) Ian Brownlie, Principles of Public International Law, Oxford University Press, 6th

edn., 2003,

2) Charles D. Hounshell And L Hugh Kemp,The Continental Shelf: A Study In National

Interest And International Law

3) F. V. W. Penick , Halifax & Nova Scotia,The Legal Character of the Right to Explore

and Exploit the Natural

4) H.O. AGGARWAL, INTERNATIONAL LAW & HUMAN RIGHTS, 17th Ed., Central Law

Publications, 2010.

5) ALINA KACZOROWSKA, PUBLIC INTERNATIONAL LAW, Old Bailey Press, London,

2002.

6) OPPENHEIM’S INTERNATIONAL LAW, Volume I, 9th Ed., Pearson Education

Singapore, Delhi, 2005.

7) MALCOLM N SHAW., INTERNATIONAL LAW, 6th Ed., Cambridge University Press,

Cambridge, 2009.

8) Charles D. Hounshell And L Hugh Kemp,The Continental Shelf: A Study In National

Interest And International Law

Statutes

Charter of the United Nations

Statute of the International Court of Justice

The Maritime Zones Act, 1976

Reports

I.C.J. Reports 1969

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ICJ Reports, 1969, pp.3, 39; 41 ILR, PP. 29, 68

Articles

1. Mark B. Feldman, The American Journal of International Law, Vol. 77, No. 2 (Apr.,

1983)

2. Leanza, U., The Delimitation of the Continental Shelf of the Mediterranean Sea, 8

The International Journal of Marine and Coastal Law 373 at pp. 391-94 (1993).

3. Ortolland, D., The Greco-Turkish dispute over the Aegean Sea: a possible solution?,

Défense nationale et sécurité collective, February 2009, at p. 74.

4. Goldstone, A. B., The delimitation of the Continental Shelf between adjacent and

opposite states: Theory and Practice, Diploma dissertation, University of Dundee,

1984, at p. 40.

Websites

1. http://untreaty.un.org/ilc/texts/instruments/english/conventions/

8_1_1958_continental_shelf.pdf>,

2. http://noc.ac.uk/science-technology/earth-ocean-system/coastal-seas/shelf-seas

3. http://marinebio.org/oceans/continental-shelves.asp, last seen on 14th September, 2014

4. http://www.spilmumbai.com/uploads/article/pdf/principle-of-delimitation-of-

continental-shelf-areas-between-states-23.pdf,

5. http://www.state.gov/e/oes/continentalshelf/

6. Professor Gilbert Gidel for the 1952 Madrid Conference of the International Bar

Association; translated from the French text by L. F. E. Goldie, Lecturer in Law at

Canberra University College, The Continental Shelf

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