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Law of the Sea
, p. 160.
212
ICJ Reports, 1984, pp. 246, 326; 71 ILR, p. 153.
213
See 25 ILM, 1986, p. 251; 77 ILR, p. 636. The tribunal consisted of Judge Lachs, President,
and Judges Mbaye and Bedjaoui.
214
25 ILM, 1986, p. 289; 77 ILR, pp. 675–6.
215
25 ILM, 1986, pp. 300–2; 77 ILR, p. 686. It should be noted that the delimitation concerned
a single line delimiting the territorial waters, continental shelves and economic zones of
the respective countries.
216
ICJ Reports, 1985, p. 13; 81 ILR, p. 239.
t h e l aw o f t h e s e a
597
Convention on the Continental Shelf, emphasised the distance criterion.
This arose because of the relevance of the economic zone concept, which
was now held to be part of customary law, and the fact that an economic
zone could not exist without rights over the seabed and subsoil similar to
those enjoyed over a continental shelf. Thus the 200-mile limit of the zone
had to be taken into account with regard to the delimitation of the conti-
nental shelf.
217
The fact that the law now permitted a state to claim a shelf
of up to 200 miles from its coast, irrespective of geological characteristics,
also meant that there was no reason to ascribe any role to geological or
geographical factors within that distance.
218
Since the basis of title to the shelf up to the 200-mile limit is recognised
as the distance criterion, the Court felt that the drawing of a median line
between opposite states was the most judicious manner of proceeding with
a view to the eventual achievement of an equitable result. This provisional
step had to be tested in the light of equitable principles in the context of
the relevant circumstances.
219
The Court also followed the example of
the
Tunisia/Libya
case
220
in examining the role of proportionality and in
treating it as a test of the equitableness of any line.
However, the Court did consider the comparability of coastal lengths in
the case as part of the process of reaching an equitable boundary, and used
the disparity of coastal lengths of the parties as a reason for adjusting the
median line so as to attribute a larger shelf area to Libya.
221
The general
geographical context in which the islands of Malta exist as a relatively
small feature in a semi-enclosed sea was also taken into account in this
context.
222
The Court in its analysis also referred to a variety of well-known ex-
amples of equitable principles, including abstention from refashioning
nature, non-encroachment by one party on areas appertaining to the
other, respect due to all relevant circumstances and the notions that eq-
uity did not necessarily mean equality and that there could be no question
of distributive justice.
223
The Court, however, rejected Libya’s argument
that a state with a greater landmass would have a greater claim to the shelf
217
The Court emphasised that this did not mean that the concept of the continental shelf
had been absorbed by that of the economic zone, but that greater importance had to be
attributed to elements, such as distance from the coast, which are common to both, ICJ
Reports, 1985, p. 33; 81 ILR, p. 265.
218
Ibid
.
219
ICJ Reports, 1985, p. 47; 81 ILR, p. 279.
220
See above, p. 595.
221
ICJ Reports, 1985, pp. 48–50; 81 ILR, p. 280.
222
ICJ Reports, 1985, p. 52; 81 ILR, p. 284.
223
ICJ Reports, 1985, pp. 39–40; 81 ILR, p. 271.
598
i n t e r nat i o na l l aw
and dismissed Malta’s view that the relative economic position of the two
states was of relevance.
224
In conclusion, the Court reiterated in the operative provisions of its
judgment, the following circumstances and factors that needed to be taken
into account in the case:
(1) the general configuration of the coasts to the parties, their oppositeness,
and their relationship to each other within the general context;
(2) the disparity in the lengths of the relevant coasts of the parties and the
distance between them;
(3) the need to avoid in the delimitation any excessive disproportion be-
tween the extent of the continental shelf areas appertaining to the
coastal state and the length of the relevant part of its coast, measured
in the general direction of the coastlines.
225
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