LIBYA V.
MALTA
Continental Shelf (Libyan Arab Jamahiriya/Malta)
OVERVIEW OF THE CASE
This case, which was submitted to the Court in 1982 by Special Agreement
between Libya and Malta, related to the delimitation of the areas of continental
shelf appertaining to each of these two States. In support of its argument, Libya
relied on the principle of natural prolongation and the concept of proportionality.
Malta maintained that States’ rights over areas of continental shelf were now
governed by the concept of distance from the coast, which was held to confer a
primacy on the equidistance method of defining boundaries between areas of
continental shelf, particularly when these appertained to States lying directly
opposite each other, as in the case of Malta and Libya. The Court found that, in
view of developments in the law relating to the rights of States over areas of
continental shelf, there was no reason to assign a role to geographical or
geophysical factors when the distance between the two States was less than 400
miles (as in the instant case). It also considered that the equidistance method did
not have to be used and was not the only appropriate delimitation technique. The
Court defined a number of equitable principles and applied them in its Judgment
of 3 June 1985, in the light of the relevant circumstances. It took account of the
main features of the coasts, the difference in their lengths and the distance
between them. It took care to avoid any excessive disproportion between the
continental shelf appertaining to a State and the length of its coastline, and
adopted the solution of a median line transposed northwards over a certain
distance. In the course of the proceedings, Italy applied for permission to
intervene, claiming that it had an interest of a legal nature under Article 62 of the
Statute. The Court found that the intervention requested by Italy fell, by virtue of
its object, into a category which — on Italy’s own showing — was one which could
not be accepted, and the Application was accordingly refused.
The Continental Shelf Libya-Malta Case is a prime reflection of the application of
customary international law for delimitation of maritime boundaries, and stands
out for its strong rejection of the primacy of equidistant method and its adoption
of angle-bisector method.
1. Brief Facts of the Case
The Libyan Arab Jamahiriya (“Libya”), and the Republic of Malta (“Malta”),
submitted a dispute concerning delimitation of continental shelf to the
International Court of Justice (“ICJ”) on July 26, 1982. Both States had granted
petroleum exploration concessions in their continental shelves, leading to
disputes due to application of different principles of international law in its
delimitation.[1] Essentially, while Malta strictly applied the ‘equidistant’ principle,
Libya preferred to modify the principle in light of relevant circumstances. The two
States entered into a ‘Special Agreement’,[2] Article I of which, requests ICJ, to
determine applicable principles of international law for delimitation and practical
application in the instant case.
1.1 Geographical context
The very first difference surfaced with respect to the task of the ICJ; Libya
believed the Court’s duty was restricted to identification of appropriate principles
of international law for delimitation, while Malta believed that the Court’s role
extended to practical application of the identified principles, including, drawing
the line, to which the Court rightfully agreed, deriving authority from Article I of
the Special Agreement.[3]
1.2 Scope of Judgment
Italy applied for intervention in 1984 under Article 62 of the Statute.[4]The Court,
rejecting the application, stated that the geographical scope of the delimitation is
limited to areas where no other State has claims to continental shelf rights, in
other words, where only Libya and Malta are sole claimants.[5]
2. Analysis of Legal Principles
Amongst the numerous principles in international for delimitation, Malta
contended that the equidistant principle must apply, while Libya called for
sufficient modifications based on relevant circumstances.
2.1 Application of Customary International Law
The Court determined the applicable law as customary international law for
twofold reason; firstly, while Malta is a party to Geneva Convention on Continental
Shelf 1958,[6] Libya is not and secondly, while both are parties to United Nations
Convention on the Law Of the Sea (UNCLOS) 1982, it had not entered into
force.[7]
The Court concluded, irrespective of its status, Article 83 of UNCLOS 1982 aimed
at achieving an ‘equitable solution’, but leaving the method to the discretion of
parties or court, as the case maybe. Parties agreed that the law applicable for
delimitation of continental shelf must be customary international law, requiring it
to be effected by application of equitable principles, giving due consideration
relevant circumstances,[8] therefore rejecting Malta’s contention of strict
application of the equidistant principle, but conceding that distance remains the
primary criterion. The Court applied principles of customary international law such
as; non-refashioning of geography; non-encroachment by one party on
appertaining areas of the other; consideration of all relevant circumstances;
noting “equity does not necessarily imply equality” and rejecting any hints of
distributive justice.[9]
2.2 Law applicable to the ‘Basis of Entitlement’
Parties distinguished the law applicable to ‘delimitation of areas’ of the continental
shelf from the law applicable to the ‘basis of entitlement’ of continental shelf. Libya
contended that the fundamental basis of title for continental shelves is derived
from the natural prolongation of the land territory of a State into the sea,[10] while
Malta argued basis of entitlement is controlled by distance from the coast and not
on the basis of physical criteria.[11]
The Court, citing Article 76 of UNCLOS, found that in analyzing the ‘basis of
entitlement’, the institution of ‘Exclusive Economic zone’ (“EEZ”), must be
considered, being linked to continental shelf in modern international law, as “the
rights which the EEZ entails over the sea-bed of the zone are defined by
reference to the regime laid down for the continental shelf.”[12] This is also
justified by the fact that while, there can be a continental shelf without an EEZ,
there cannot exist an EEZ without a continental shelf. The Court stated that the
EEZ, with its rule of entitlement on the basis of distance, is a part of customary
international law, by State practice. Therefore, the Court concluded that, both
natural prolongations as well as distance from the coast constitute essential
principles for determining ‘basis of entitlement’, as natural prolongation is partly
defined by distance from the shore.
2.3 Rift Zone in determining Delimitation
Libya contended that, where there exists a fundamental discontinuity in
continental shelves of two States, for instance, where the natural prolongation is
divided by a ‘Rift Zone’, creating two shelves, as is the case in Libya-Malta, the
delimitation line must be drawn along the direction of the ‘Rift Zone’. [13]
The Court, rejecting the above contention stated that a State can claim
continental shelf 200 nautical miles from its coast, irrespective of characteristics
of any geological or geophysical factors; and the ‘Rift Zone’ cannot constitute a
natural boundary, as the distance between the coasts of the two States is less
than 200 nautical miles.
2.4 Primacy of Equidistant Principle
Malta’s argument before the Court, that the equidistant principle has primacy in
delimitation and represents the starting point for drawing the line was rejected.
The court relayed that equidistance method is neither obligatory nor the only
method for delimitation and does not gain primacy.
2.5 Relevant Circumstances
The Court, referring to State practice and the work on third conference on
UNCLOS,[14] held that only those factors pertinent to continental shelf and
delimitation could be included as relevant circumstances. The Court rejected the
justification on basis of size of landmass, economic status of the States, security
considerations when coastlines are not sufficiently nearby, and equality in
juridical value of maritime extensions derived from sovereignty of states.[15]
The case has also been cited in several judgments by ICJ and arbitral tribunals.
In Maritime Delimitation in the Black Sea (Romania v. Ukraine),[24]the Court
relied on the finding of this case to undertake security considerations as relevant
consideration in delimitation of maritime line. In Newfoundland and Labrador and
Nova Scotia arbitration,[25] a fresh practice of the international court in Libya-
Malta case was recognized, wherein courts preliminarily draw an equidistant line,
and thereafter adjust in accordance with relevant considerations. Lastly,
in Delimitation Of The Maritime Boundary Between Bangladesh And Myanmar In
The Bay Of Bengal,[26] ITLOS noted that the angle-bisector method in the Libya-
Malta case as an approximation to the equidistant method.

3. Decision
The Court applied equitable principles by giving consideration to relevant
circumstances; delimited the median line based on distance from coast, excluding
portions of Maltese uninhabited rock from baseline. It conducted a northern
transposition of the line towards Malta, considering, firstly, the difference in
coastlines between Libya and Malta and secondly the fact that Malta’s minority in
larger geographical outlook of the Mediterranean.[16] Finally, the Court tested the
line on the principle of proportionality and concluded that no manifest
disproportion existed in the area identified to both parties.[17]

3.1 Dissenting Opinions

In his dissenting opinion, Judge Oda[18] rejected the proportionality test adopted
by the Court which, he remarked was not based on an identified coastline or area.
Instead, he advocated for the application of equidistant line, made subject to
modification due to ‘special circumstances’. Citing the English Channel arbitration
case between France and United Kingdom,[19] he quoted one such circumstance
as the ‘half-island’ concept adopted in that case, where ‘partial effect’ was given
to a small part of England’s territory while drawing the equidistant line; whereas
in the instant case, the ‘partial effect’ was given to Malta, considering it a small
part of a larger territory (Mediterranean), while in fact it is a sovereign State.[20]
Judges Mosler[21] and Shwebel,[22] in their dissenting opinions expressed
disagreement firstly to, the improper northward transposition of the median line
by considering Malta as a minor feature of the Mediterranean reflecting lack of
consistency and predictability in Court’s approach, and secondly preferred the
equidistant method as any disparity in the coastline length would be adjusted with
disparity of seabed area bounded by the median line.

4. Importance of Libya-Malta in Contemporary International Law

The Libya-Malta Continental Shelf case has led the way for a vital connection
between the institutions of continental shelf and EEZ, in the common principle of
entitlement, based on distance as 200 nautical miles from the coast, leaving open
the possibility that natural prolongation in the physical sense may play a role
beyond 200 nautical miles. One of the relevant circumstances to be taken into
account for the delimitation of the continental shelf was the legally permissible
extent of the EEZ.

Additionally, while opinio juris not only is necessary to the formation of customary
law, it constitutes a central element. In the instant case, the ICJ adopted it as a
formal requirement and it has been the subject of extensive application and
discussion in many national judicial decisions applying customary law, such as
those in the United States, applying the Alien Tort Statute, 1789[23] having
declared that the substance of customary international law must be looked for
primarily in State practice and opinio juris.

Further, the inadequately elucidated transposition of median line has

nevertheless displayed a new approach of “half-effect” to islands, which arises
from delimitation by the equidistant method.