| |
[p192] The Court,
composed as above,
after deliberation,
delivers the following Judgment :
1. On 27 July 1984 the Agent of the Republic of Tunisia filed in the
Registry of the Court an Application, dated 17 July 1984, instituting
proceedings in reliance on Articles 60 and 61 of the Statute of the Court
and Articles 98, 99 and 100 of the Rules of Court. Tunisia thereby requested
the revision of the Judgment given by the Court on 24 February 1982 in the
case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (I.C.J.
Reports 1982, p. 18), the interpretation of that Judgment, and the
correction of what was regarded by Tunisia as an error in it.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
at once communicated to the Government of the Libyan Arab Jamahiriya, and at
the same time the Parties were informed of the time-limit fixed by the
Vice-President of the Court for the filing by the Libyan Arab Jamahiriya of
written observations on the application and in particular on the
admissibility thereof as provided in Article 99, paragraph 2, of the Rules
of Court. In accordance with paragraph 3 of Article 40 of the Statute, all
other States entitled to appear before the Court were notified of the
Application.
3. On 15 October 1984, within the time-limit fixed, the Government of the
Libyan Arab Jamahiriya filed in the Registry its written observations on the
Tunisian Application. On 13 June 1985, after ascertaining the views of the
Parties, the Court decided, pursuant to Article 53 of the Rules of Court,
that copies of the pleadings in the case should be made accessible to the
public
on the opening of the oral proceedings.
4. Since the Court did not include upon the Bench a judge of the nationality
of either party, each party exercised its right under Article 31, paragraph
3, of the Statute to choose a person to sit as judge in the case. Tunisia
chose Mrs. Suzanne Bastid and the Libyan Arab Jamahiriya chose Mr. Eduardo
Jimenez de Arechaga.
5. At public hearings held from 13 to 18 June 1985, the Court heard the oral
argument of the Parties on the admissibility of the Application, and on the
questions of interpretation and the correction of an error ; it was
addressed by the following representatives of the Parties :
For Tunisia :
Mr. Habib Lazreg,
Mr. Yadh Ben Achour,
Professor Michel Virally,
Professor Rene-Jean Dupuy.
For the Libyan Arab Jamahiriya :
H.E. Mr. Kamel H. El Maghur,
Sir Francis A. Vallat, Q.C.,
Professor Jean-Pierre Queneudec,
Professor Derek W. Bowett, Q.C. [p 195]
During the hearings, questions were put to the Parties by Members of the
Court, and answered either orally during the hearings or in writing,
pursuant to Article 61 of the Rules of Court.
6. In the course of the proceedings the following submissions were presented
by the Parties :
On behalf of Tunisia,
in the Application :
"May it please the Court to adjudge and declare :
1. As regards the first sector of the delimitation :
That there is a new fact of such a character as to lay the Judgment open to
revision within the meaning of Article 61 of the Statute of the Court ;
That the application for revision submitted by the Tunisian Republic is on
that account admissible.
Altogether subsidiarily :
That there is cause to construe the Judgment of 24 February 1982 and to
correct an error ;
That the starting-point for the line of delimitation is the point where the
outer limit of the territorial sea of the Parties is intersected by a
straight line drawn from the land frontier point of Ras Ajdir through the
point 33[degrees] 50' 17" N, 11[degrees] 59' 53" E, and aligned on the
south-eastern boundary of Tunisian petroleum concession 'Permis
complementaire offshore du golfe de Gabes' (21 October 1966) ; from the
intersection point so determined, the line of delimitation between the two
continental shelves is to run north-east through the point 33 [degrees] 50'
17" N, 11 [degrees] 59' 53" E, thus on that same bearing, to the point of
intersection with the parallel 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.
2. As regards the second sector of the delimitation :
That it will be for the experts of both Parties to establish the exact
co-ordinates of the most westerly point of the Tunisian coastline between
Ras Kaboudia and Ras Ajdir, or in other words the most westerly point of the
shoreline (low-water mark) of the Gulf of Gabes, making use of all available
cartographic documents and, if necessary, carrying out an ad hoc survey in
loco."
At the hearing of 14 June 1985 (afternoon) :
"May it please the Court to adjudge and declare :
1. As regards the first sector of delimitation :
That there is a new fact of such a character as to lay the Judgment open to
revision within the meaning of Article 61 of the Statute of the Court.
That the application for revision submitted by the Tunisian Republic is on
that account admissible.
Altogether subsidiarily :
That there is cause to construe the Judgment of 24 February 1982 and to
correct an error.[p 196]
As regards the interpretation :
That in the first sector, the one closer to the coasts of the Parties, the
starting-point for the line of delimitation is the point where the outer
limit of the territorial sea of the Parties is intersected by a straight
line drawn from the frontier point of Ras Ajdir and aligned on the
south-eastern boundary of Tunisian petroleum concession 'Permis
complementaire offshore du golfe de Gabes' (21 October 1966), in such a way
as to avoid, as far as is at all possible, any encroachment on the area
defined by that concession ; from the intersection point so determined, the
line of delimitation between the two continental shelves is to run
north-east on the same bearing to the point of intersection with the
parallel 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.
The co-ordinates of the point at sea through which the line thus determined
must pass, and the bearing of that line east of north, as they appear in the
operative provisions of the Judgment, were given only by way of indication.
It will be for the experts of the two Parties to calculate
them accurately.
As regards the correction of an error :
That there is cause to replace the co-ordinates 33 [degrees] 55' N, 12
[degrees] E, mentioned in section C (2) of paragraph 133 of the Judgment of
24 February 1982, with the co-ordinates 33 [degrees] 50' 17" N, 11 [degrees]
59' 53" E.
If this correction is made, the point so defined will be the point at sea
through which the delimitation line must pass ; there will therefore be no
need for the experts to calculate it.
2. As regards the second sector of delimitation :
That the most westerly point of the Gulf of Gabes lies on latitude 34
[degrees] 05' 20" N (Carthage).
Altogether subsidiarily :
That there is cause to order an expert survey for the purpose of
ascertaining the exact co-ordinates of the most westerly point of the Gulf
of Gabes."
On behalf of the Libyan Arab Jamahiriya :
in the written Observations :
"May it please the Court to adjudge and declare :
1. That the request for revision under Article 61 of the Statute of the
Court contained in the Application of Tunisia does not satisfy the
conditions laid down in that Article and is thus inadmissible ;
2. That there are no grounds to grant Tunisia's request to construe the Judgment ; and
3. That there is no foundation in law or in fact for the request to the
Court to correct an error in the Judgment."
At the conclusion of the last statement made on behalf of the Libyan Arab
Jamahiriya, at the hearing of 18 June 1985 (afternoon), the Agent of Libya
stated that "Libya reaffirms its submissions".
***[p 197]
7. The Application of Tunisia instituting proceedings in the present case
contains three distinct requests : an application for revision of the
Judgment given by the Court on 24 February 1982 (hereafter called "the 1982
Judgment"), on the basis of Article 61 of the Statute of the Court ; an
application for interpretation of that Judgment, on the basis of Article 60
of the Statute ; and a request to "correct an error" in that Judgment, on
the basis of a power which, in the contention of Tunisia, the Court
"unquestionably possesses", even though such a power is not mentioned in any
article of the Statute or of the Rules of Court. In response to a question
put during the hearings by a Member of the Court, Tunisia explained that it
was in fact submitting two requests for interpretation : a request,
subsidiary to the application for revision and conditional on that
application being found inadmissible, concerning the first sector of the
delimitation the subject of the 1982 Judgment ; and a principal request
concerning "the determination of the most westerly point of the Gulf of
Gabes", in connection with the second sector of that delimitation. In its
final submissions at the hearings, set out in paragraph 6 above, Tunisia
clarified the inter-relation of its various requests by reference to the two
sectors of the delimitation, and added a submission referring to an expert
survey.
8. The Statute and Rules contemplate different procedures for a request for
revision and for a request for interpretation. Under Article 61 of the
Statute, the proceedings for revision shall be opened by a judgment of the
Court declaring the application admissible on the grounds contemplated by
the Statute ; and Article 99 of the Rules of Court provides expressly for
proceedings on the merits of the application in the event that, by its
initial judgment, the Court finds it admissible. The provisions of Article
60 of the Statute and Article 98 of the Rules, concerning requests for
interpretation, do not contemplate such a two-stage procedure. As for the
request for correction of an error in a decision of the Court, there is, as
already noted, no provision in the Statute and Rules of Court governing such
a request, or the applicable procedure.
9. The procedure adopted by the Court in the present case was first to
authorize the filing by the Government of Libya of written observations on
the Tunisian application, and in particular on the admissibility thereof as
provided in Article 99, paragraph 2, of the Rules of Court. Thereafter the
Court held oral proceedings for the purpose of hearing the argument of the
Parties in regard to the Application of Tunisia as a whole. Such argument
was however necessarily limited, so far as the request for revision is
concerned, to the question of admissibility, but did not have to be limited
to that aspect of the requests for interpretation and for correction of an
error.
10. While Article 61 of the Statute requires, as a first stage in a
procedure on a request for revision, a judgment limited to the question of
admissibility of that request, there is, in the Court's view, no reason why
that same judgment should not, in appropriate circumstances, deal with other
requests made in the same application instituting proceedings. No provision
in the Statute and Rules operates as a bar to such a procedure, [p 198]
which in the present case has practical advantages. Accordingly, in the
present Judgment the Court will deal first with the question of
admissibility of the request for revision, and will then, if appropriate in
the light of its findings on that matter, examine the request for
interpretation, sector by sector, and the request for correction of an
error. In this latter respect, it should be observed that Tunisia's request
is presented as one for the correction of an "erreur materielle". The Court
does of course have the power to correct, in one of its judgments, any
mistakes which might be described as "erreurs materielles". That power would
not normally be exercised by way of a judgment, since the very nature of the
correction of such an error excludes any element of contentious procedure ;
yet there is no reason why a judgment devoted to another purpose should not
also deal with a request connected therewith, for such a correction. It
appears however that Tunisia's request relates to an alleged error of a more
substantive kind, and thus raises wider questions than that whether a
judgment would be the appropriate means for such correction.
***
11. In its Application for revision of the 1982 Judgment, Tunisia relies on
Article 61 of the Statute of the Court, paragraphs 1, 4 and 5 of which
provide as follows :
"1. An application for revision of a judgment may be made only when it is
based upon the discovery of some fact of such a nature as to be a decisive
factor, which fact was, when the judgment was given, unknown to the Court
and also to the party claiming revision, always provided that such ignorance
was not due to negligence.
. . . �������������������������������������
4. The application for revision must be made at latest within six months of
the discovery of the new fact.
5. No application for revision may be made after the lapse of ten years from
the date of the judgment."
The fact which, according to Tunisia, was unknown either to the Court or to
Tunisia before the delivery of the Judgment of 24 February 1982, was
identified in the Application as being the text of a Resolution of the
Libyan Council of Ministers of 28 March 1968, which determined the "real
course" of the north-western boundary of a petroleum concession granted by
Libya, and referred to in the 1982 Judgment, known as Concession No. 137.
According to Tunisia, the real course of that boundary was very different
from that emerging from the various descriptions given by Libya during the
proceedings before the Court leading up to the 1982 Judgment.
12. In order to set the contentions of Tunisia in context, it is necessary
to recapitulate part of the reasoning in the 1982 Judgment. The Court was
seised by notification of a Special Agreement, under which it was requested
[p 199] to determine the principles and rules of international law
applicable for the delimitation of the areas of the continental shelf
appertaining to the Parties and (in the Libyan translation from the original
Arabic) to "clarify the practical method for the application" of those
principles and rules, or (in the Tunisian translation) "to specify precisely
the practical way" in which they apply, so as to enable the experts of the
two countries to delimit these areas without any difficulties. At the stage
of its reasoning dealing with methods of delimitation, the Court identified
a particular circumstance, related to the conduct of the Parties, to which
the methods proposed by the Parties gave, in the view of the Court,
"insufficient
weight" (I.C.J. Reports 1982, p. 80, para. 113, p. 83, para. 117). The Court
explained the circumstance in question as follows :
"the history of the enactment of petroleum licensing legislation by each
Party, and the grant of successive petroleum concessions, during the period
from 1955 up to the signing of the Special Agreement, shows that . . . the
phenomenon of actual overlapping of claims did not appear until 1974, and
then only in respect of areas some 50 miles from the coast. A Tunisian
enlarged concession of 21 October 1966 was bounded on the east by a
'stepped' line (a form apparently dictated by the grid/block system for
grant of concessions) the eastern angles of which lay on a straight line at
a bearing of approximately 26 [degrees] to the meridian. In 1968 Libya
granted a concession (No. 137) 'lying to the eastward of a line running
south/southwest from the point 33 [degrees] 55' N, 12 [degrees] E to a point
about one nautical mile offshore' the angle thereof viewed from Ras Ajdir
being 26 [degrees] ; the western boundaries of subsequent Libyan concessions
followed the same line, which, Libya has explained, 'followed the direction
of the Tunisian concessions'. The result was the appearance on the map of a
de facto line dividing concession areas which were the subject of active
claims, in the sense that exploration activities were authorized by one
Party, without interference, or (until 1976) protests, by the other."
(Ibid., pp. 83-84, para. 117.)
13. In the operative part of its Judgment, the Court indicated inter alia
that "the delimitation is to be effected in accordance with equitable
principles, and taking account of all relevant circumstances" (para. 133 A
(1)), and that the relevant circumstances referred to included (inter alia)
:
"the land frontier between the Parties, and their conduct prior to 1974 in
the grant of petroleum concessions, resulting in the employment of a line
seawards from Ras Ajdir at an angle of approximately 26 [degrees] east of
the meridian, which line corresponds to the line perpendicular to the coast
at the frontier point which had in the past been observed as a de facto
maritime limit" (ibid., p. 93, para. 133 B (4)).
The practical method which the Court indicated for the application of the [p
200]relevant principles and rules of international law in the particular
situation of the case
was, so far as here material, as follows :
"in the first sector, namely in the sector closer to the coast of the
Parties, the starting point for the line of delimitation is the point where
the outer limit of the territorial sea of the Parties is intersected by a
straight line drawn from the land frontier point of Ras Ajdir through the
point 33 [degrees] 55' N, 12 [degrees] E, which line runs at a bearing of
approximately 26 [degrees] east of north, corresponding to the angle
followed by the north-western boundary of Libyan petroleum concessions
numbers NC76, 137, NC 41 and NC 53, which was aligned on the south-eastern
boundary of Tunisian petroleum concession 'Permis complementaire offshore du
Golfe de Gabes' (21 October 1966) ; from the intersection point so
determined, the line of delimitation between the two continental shelves is
to run north-east through the point 33 [degrees] 55' N, 12 [degrees] E, thus
on that same bearing, to 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" (I.C.J. Reports 1982, pp.
93-94, para. 133 C (2)).
14. For this purpose the Court relied on the information as to the
boundaries of the concessions mentioned, particularly Concession No. 137,
supplied by the Government of Libya, which had granted them. In its
Memorial, Libya stated that the area covered by that Concession lay "to the
eastward of a line running south/southwest from the point 33 [degrees] 55'
N, 12 [degrees] E to a point about one nautical mile offshore", adding that
"The point of origin viewed from Ras Ajdir is at an angle of 26 degrees". In
its Counter-Memorial, Libya mentioned the "stepped eastern boundary" of the
Tunisian concession described in the 1982 Judgment as the "Permis
complementaire offshore du Golfe de Gabes" (hereafter referred to as "the
Tunisian permit") and stated : "This is the Concession boundary that runs in
a direction northward at an angle of 26 [degrees] from Ras Ajdir." Further
on in the same pleading, Libya indicated that
"on 30 April 1968, the Libyan authorities granted Concession No. 137 to
Aquitaine and Exwarb ... The western boundary of that Concession followed
the direction of the Tunisian Concessions granted in 1967 to SNPA/RAP [i.e.,
the Tunisian permit]."
Referring to later concessions further from the coast, Libya mentioned that
"The western boundary of both these Concessions followed the 26 [degrees]
line", and it concluded that "Libya has exercised considerable
self-restraint in never going west of the original 26 [degrees] concession
line in the grant of further concessions". At the hearings in 1981 the Agent
of Libya referred to the Tunisian permit as having "moved eastward from the
due north line from Ras Ajdir . . . to a line of 26 [degrees] from Ras
Ajdir", and went on to say that "Libya's first concession in 1968 . . .
avoided the possibility of conflict by adopting the same line".[p 201]
15. The Government of Tunisia, relying on the report of an expert consulted
by it, annexed to the Application for revision, has drawn attention to the
following aspects of the factual situation. While the point 33 [degrees] 55'
N, 12 [degrees] E, referred to in the 1982 Judgment, corresponds to the
north-western corner of Libyan Concession No. 137, and its bearing from the
frontier point at Ras Ajdir has a value that is very close to 26 [degrees],
the western boundary of Concession No. 137 does not run at 26 [degrees] to
the meridian, since the "point about one nautical mile offshore" referred to
by Libya as its south-western corner is not at a bearing of 26 [degrees]
from the frontier point at Ras Ajdir, but approximately 1 mile to the east
of Ras Ajdir, at 33 [degrees] 10' N, 11[degrees] 35' E. The bearing of this
boundary is thus not 26 [degrees] but 24[degrees] 57' 03". Secondly, the
south-eastern corner points of the stepped line forming the eastern boundary
of the Tunisian permit are not in line, so that no straight line can be
drawn through them all ; a straight line which would leave all these points
on the west (i.e., would not encroach on the area of the Tunisian permit)
would have a bearing of 27 [degrees] 50' 01". Thirdly, the north-western
boundary of the Libyan petroleum concessions, in particular Concession No.
137, "is not aligned with the south-eastern boundary of the Tunisian permis
complementaire, however one defines the latter's alignment". Quoting
paragraph 121 of the Judgment, which states that the Libyan boundary "was
aligned with the eastern points of the zig-zag south-eastern boundary" of
the Tunisian concession, the expert consulted by Tunisia notes that the
alignment of these points
"neither merges with nor is parallel to the Libyan boundary (there is a
difference of 2 [degrees] to 2 1/2 [degrees]), nor parallel to line FP [that
defined by the decision of the Court between Ras Ajdir and point 33
[degrees] 55' N 12 [degrees] E] (difference of between 1 [degrees] and 1 1/2
[degrees])".
16. On this basis, Tunisia argues in its Application for revision that
"the delimitation line passing through point 33 [degrees] 55' N, 12
[degrees] E would allocate to Libya areas of continental shelf lying within
the Tunisian permit of 1966, contrary to what has been clearly decided by
the Court, whose entire decision is based on the idea of alignment between
the permits and concessions granted by the two Parties and on the resultant
absence of any overlapping of claims up to 1974 and in the nearest offshore
areas, up to 50 miles from the coast (Judgment, para. 117). It has been
shown how this was the 'one circumstance in particular' which the Court
found 'to be highly relevant to the determination of the method of
delimitation'."
It contends that the Resolution of the Libyan Council of Ministers of 28
March 1968, which, according to Tunisia, determined the real course of the
boundary of Concession No. 137, was a fact which
"was of such a nature as to be a decisive factor in the Court's Judg-[p
202]ment, given that the Court relied upon certain statements by Libya which
prove to be contradicted by the document in question and that the actual
operative provisions of the Judgment define the delimitation line to be
drawn in accordance with criteria derived from those statements".
17. The geographic facts as to positions and bearings of the boundaries of
the relevant concessions as stated by the expert consulted by Tunisia are
not disputed by Libya. It has however been emphasized in the Libyan written
observations that "there can be no question of Libya presenting a misleading
picture of the course of its concessions" in its pleadings and argument in
the proceedings leading up to the 1982 Judgment. Libya points out that the
statements in its Memorial (quoted in paragraph 14 above) were perfectly
accurate : the south-western corner of Concession No. 137
"does lie approximately one mile from the terminus of the land frontier at
Ras Ajdir, and the bearing of the angle viewed from Ras Ajdir to the point
of origin of the Concession (33 [degrees] 55' N, 12 [degrees] E) is
approximately 26 [degrees]".
Libya also observes that
"this Concession was portrayed by both Parties in their written and oral
pleadings on small-scale maps. Neither Party showed any interest in the
details as to the precise course of the boundary of Concession No. 137 or,
indeed, of Tunisia's 1966 Concession, and neither Party furnished
large-scale, detailed maps in this regard. Libya's descriptions of its
concessions, therefore, were not intended to be detailed, but to give the
general setting which was accurate given the scale of the maps presented.
Nor were there any statements made by Libya as to a precise relationship of
Libyan Concession No. 137 to Tunisia's 1966 Concession. That there was a
generally common boundary between these Concessions, following a direction
of approximately 26 [degrees] as viewed from Ras Ajdir, was the extent of
the descriptive detail given to the Court by Libya and portrayed on its
small-scale maps and, as such, was correct."
18. Libya does however dispute the admissibility of the Tunisian Application
for revision, on both factual and legal grounds. It contends that the
Application of Tunisia fails to comply with
any of the conditions set by Article 61 of the Statute (set out in paragraph
11 above), with the exception of the condition as to the ten-year limit laid
down in paragraph 5. It contends :
-- that the fact relied on was known to Tunisia, either at the time of the
1982 Judgment or at some time earlier than six months before the filing of
the Application for revision ;
-- that if the fact was unknown to Tunisia, that ignorance was due to
negligence on the part of Tunisia ; and[p 203]
-- that Tunisia has failed to show that the fact discovered was "of such a
nature as to be a decisive factor".
19. Article 61 of the Statute provides that an application for revision of a
judgment may be made only when it is based upon the discovery of a fact
"which was, when the judgment was given, unknown to the Court and also to
the party claiming revision". So far as knowledge of the fact in question
could be derived from the pleadings and material submitted to the Court in
the proceedings leading up to the original judgment, anything which was
known to the Court must equally have been known to the party claiming
revision. The Court must be taken to be aware of every fact established by
the material before it, whether or not it expressly refers to such fact in
its judgment ; similarly, a party cannot argue that it was unaware of a fact
which was set forth in the pleadings of its opponent, or in a document
annexed to those pleadings or otherwise regularly brought before the Court.
20. In its Application, Tunisia contends that
"The new fact, that is to say, the fact unknown both to the Court and to
Tunisia before the delivery of the Judgment consists in the discovery of the
text of the Resolution of the Libyan Council of Ministers dated 28 March
1968, which determines the true course of the north-western boundary of
Libyan concession No. 137, a course which, as has been demonstrated, is very
different from the one emerging from the descriptions Libya gave during the
written and oral proceedings. This document was not drawn to the attention
of the Court. It is neither in the Memorial and Annexes of Libya nor in the
documents provided by Libya in the course of the proceedings."
Annexed to the Tunisian Application was what was described as the
"Description of Concession No. 137 as defined in the Resolution of the
Council of Ministers of 28 March 1968". Libya contends however that the
actual Resolution in question contained no details as to Concession No. 137,
nor did it include a map. The document annexed to the Tunisian Application
is, according to Libya, a reproduction of an Annex to the pertinent
Concession Agreement, setting forth the area covered by the Concession in
square kilometres as well as the co-ordinates of the boundaries of the
Concession. Libya has suggested that "technically this mistake might be
enough to render the Application inadmissible as an application for
revision". The Court however considers that this would be an
over-formalistic approach. It will examine the matter on the basis that the
fact which allegedly was unknown in 1982 was the co-ordinates defining the
boundary of Concession No. 137, however those co-ordinates may have been
officially recorded. It is really on this basis that the matter has been
argued.
21. It is however worth emphasizing at this point that the "new fact", i.e.,
the fact the discovery of which is relied on to support the application for
revision, is solely the boundary co-ordinates. This entails, it is argued,
[p 204] first that the boundary of the Libyan concession is not "aligned" on
the Tunisian permit, and secondly that the true north-western boundary of
Concession No. 137 "reveals a phenomenon of overlapping", in that the line
passing through point 33 [degrees] 55' N, 12 [degrees] E "would allocate to
Libya areas of continental shelf lying within the Tunisian permit of 1966,
contrary to what has been clearly decided by the Court". It appears to the
Court however that while the actual co-ordinates may constitute a new fact,
this is not the case as regards the existence of an overlap between the
north-western edge of Libyan Concession No. 137 and the south-eastern edge
of the Tunisian permit. The expert consulted by Tunisia has himself shown in
his report that the position of the south-eastern tips of the zig-zag
boundary of the Tunisian permit is such that that boundary overlaps not only
the line of the actual north-western boundary of Concession No. 137, the
bearing of which the expert calculates as 24 [degrees] 57' 03", but also the
26 [degrees] line indicated by the Court as "a de facto line dividing
concession areas which were the subject of active claims" (I.C.J. Reports
1982, p. 84, para. 117). Thus even assuming that Tunisia was given the
impression by Libya's pleadings that the north-western boundary of
Concession No. 137 ran at 26 [degrees] to the meridian, ending at the point
33 [degrees] 55' N, 12 [degrees] E, and starting from a point one mile
offshore of, and at a bearing of 26 [degrees] from, Ras Ajdir, it would
necessarily have been aware of the existence of an overlap with its own
permit. The overlap with the 26 [degrees] line was in fact almost twice as
great in area as that with the actual boundary of Concession No. 137, since
the southern end of that boundary was further east than the 26 [degrees]
line.
22. So far as the 26 [degrees] line is concerned, Libya has in the present
proceedings drawn attention to a map attached to its Counter-Memorial of
1981, which indicated some degree of overlap between the 26 [degrees] line
and the stepped boundary of the Tunisian permit. Libya has also suggested
that the overlap was discernible, though with difficulty, on a map produced
by Tunisia during the oral proceedings in 1981. On the other hand, a map
annexed to the Libyan Memorial of 1980 shows all the outer (south-eastern)
corner points of the Tunisian stepped boundary as apparently lying on the 26
[degrees] line, but this, according to the expert
consulted by Tunisia, was not correct since those points did not lie on that
line or indeed on any straight line. As for the actual boundary of
Concession No. 137, Libya has drawn attention in the present proceedings to
the fact that the map annexed to the Concession was reproduced as an Annex
to the Libyan Counter-Memorial. That map, which bears the legend
"Approximated boundaries indicated in red" does not however give the
co-ordinates of the various boundary points. The boundaries are shown
superimposed upon a grid of degrees (not minutes) of latitude and longitude,
and the coastline is not shown, so that careful scaling would be necessary
to establish even the approximate position of the point nearest Ras Ajdir.
23. That said, it should be noted that while Libya emphasizes that the [p
205] information it supplied to the Court in the proceedings leading up to
the 1982 Judgment was accurate as far as it went, it does not in fact deny
that the exact co-ordinates of Concession No. 137 were not supplied to the
Court by either Party, so that Tunisia would not have been able to ascertain
the exact location of the Libyan concession from the pleadings and other
material then before the Court. The Court must however consider whether the
circumstances were such that means were available to Tunisia to ascertain
the details of the co-ordinates of the concession from other sources ; and
indeed whether it was in Tunisia's own interests to do so. If such be the
case, it does not appear to the Court that it is open to Tunisia to rely on
those co-ordinates as a fact which was "unknown" to it for the purposes of
Article 61, paragraph 1, of the Statute. In the Fisheries case, in which the
United Kingdom denied knowledge of a Norwegian Decree of 1869 concerning the
delimitation of the territorial sea, the Court observed that
"As a coastal State on the North Sea, greatly interested in the fisheries in
this area, as a maritime Power traditionally concerned with the law of the
sea and concerned particularly to defend the freedom of the seas, the United
Kingdom could not have been ignorant of the Decree of 1869." (I.C.J. Reports
1951, p. 139, emphasis added.)
24. It should first be noted that the Resolution of the Council of Ministers
of 28 March 1968 was published both in the Libyan Official Gazette (4 May
1968) and in Middle East Economic Survey (9 August 1968), in the latter
publication with the editorial explanation that it related to "6846 sq. kms.
of offshore acreage in the Zuara area near the Tunisian border" (emphasis
added). Secondly, in a Note of 13 April 1976 addressed to Libya Tunisia
stated that
"From 1968 onwards the Tunisian Government has contested the concession No.
137 granted by the Libyan Government, since it extends within the Tunisian
continental shelf as defined by international law and usage."
The "Tunisian continental shelf" certainly included the areas within the
Tunisian permit, the co-ordinates of which were included in the material
before the Court in 1982 (though only in a form requiring some expert
knowledge to plot them on a map). In what way the Tunisian Government had
"contested" the Concession is not clear, since Libya's Note of 30 March 1976
stated that its concession limits had "encountered no opposition or
reservation". However, the reasonable and appropriate course of action to be
taken by Tunisia, in 1976 at the latest, would have been to seek to know the
co-ordinates of the Concession, so as to establish the precise extent of the
encroachment on what it regarded as Tunisian continental shelf.
25. Libya has pointed out that, although it is not its practice to publish
the co-ordinates of oil concessions granted by it, the Libyan Petroleum [p
206] Regulations of 1955 do provide for access by the public to the
Petroleum Register, and to status maps which show "the areas indicated in
all pending applications, the areas of all currently valid concessions and
all open areas". Thus while the co-ordinates of Concession No. 137 were
never published, they were, according to Libya "readily obtainable in
Tripoli". It was also possible, according to Libya, to obtain the
information from the Libyan National Oil Corporation. It has been shown by
Libya in the present proceedings that an independent firm of consultants in
the petroleum industry was thus able to obtain the information in question
in 1976 ; and Tunisia has neither explained why it would not have been
possible for it to do the same -- or indeed itself to apply to the firm of
consultants in question -- nor proved that if it had made such approaches,
they would have been unsuccessful.
26. In this respect Tunisia has urged that
"The Tunisian Government cannot be held negligent in any way, as its
representatives have vainly requestedtheir Libyan counterparts to
communicate this text to them during the meetings between the two sides ever
since 1968."
Libya, it should be observed, denies that such requests were made. However,
even if Tunisia's assertion be accepted, it is clear from the Notes
exchanged between the Parties and produced to the Court, and not contested
by Tunisia, that Libya had expressed its willingness to assist Tunisia to
obtain maps of the area claimed by Libya; Tunisia had been told that these
maps had already been published, registered and distributed and were
available to all ; but that Tunisia commented that it would have been
"simpler" for the Libyan Government itself to transmit the maps in question
to Tunisia. While it was no doubt correct as a matter of diplomatic practice
for Tunisia to invite the Libyan Government to supply the relevant
information, there was no reason why Tunisia, particularly if it was not
receiving from the Libyan Government the co-operation which it apparently
expected, should not employ other, perfectly lawful and proper, means to
obtain it.
27. Normal diligence would require that, when sending a delegation to
negotiate a continental shelf delimitation, following the grant by each side
of neighbouring or conflicting concessions, a State should first try to
learn the exact co-ordinates of the other party's concession. Furthermore,
it is to be expected that a State would not assert that such concession
extended to its own area of continental shelf without knowing, or making
efforts to discover, the exact limits of the concession. It is also to be
expected that, in litigation the ultimate purpose of which is the
establishment of a continental shelf delimitation, and in the course of
which a petroleum concession in the relevant area is described by one party
without precision, the other party will not limit itself to commenting on
the matter in its pleading, but itself seek out the information.
28. The Court must therefore conclude that in the present case, the fact [p
207] that the concession boundary co-ordinates were obtainable by Tunisia,
and the fact that it was in its own interests to ascertain them, together
signify that one of the essential conditions of admissibility of a request
for revision laid down in paragraph 1 of Article 61 of the Statute, namely
ignorance of a new fact not due to negligence, is lacking. In view of this
conclusion, there is no need to enquire into the question whether the
application for revision was made within six months of the discovery of the
fact of the co-ordinates, as required by paragraph 4 of Article 61 of the
Statute.
29. There remains however a further requirement of Article 61, namely that
the fact, the discovery of which is relied on, must be "of such a nature as
to be a decisive factor". Strictly speaking, once it is established that the
request for revision fails to meet one of the conditions for admissibility,
the Court is not required to go further and investigate whether the other
conditions are fulfilled. However, in the special circumstances of the
present case, in which the request for revision is accompanied by a request
for interpretation, the Court finds it useful to consider also whether the
fact of the concession co-ordinates was "of such a nature as to be a
decisive factor". The request by Tunisia for interpretation of the 1982
Judgment as regards the first sector of the delimitation -- which, it will
be recalled, is made "altogether subsidiarily" to the request for revision
-- is closely bound up with the question of which aspects of the case were
to be regarded as constituting a "decisive factor" in that Judgment and
which were not. In the exercise of its "freedom to select the ground upon
which it will base its judgment" (Application of the Convention of 1902
Governing the Guardianship of Infants, I.C.J. Reports 1958, p. 62), the
Court considers that it should therefore deal with this aspect of the
admissibility of the request for revision before turning to the requests for
interpretation.
30. In its Application, Tunisia refers to the relevant passage from
paragraph 133 C of the 1982 Judgment (see paragraph 13 above) and deduces
that "the Judgment's definition of the determining line" -- the line from
the frontier point determining the point on the boundary of the territorial
sea from which the delimitation line was to run, and by extension also the
delimitation line itself - "draws on three distinct factors", which it finds
in the operative clause of the Judgment,
"for the line in question is the straight line :
-- 'drawn from the land frontier point of Ras Ajdir through the point 33
[degrees] 55' N, 12 [degrees] E',
-- 'at a bearing of approximately 26 [degrees] east of north',
-- 'corresponding to the angle followed by the north-western boundary
of Libyan petroleum concessions Nos. NC 76, 137, NC 41 and NC 53, which was
aligned on the south-eastern boundary of Tunisian petroleum concession
"Permis complementaire offshore du golfe de Gabes" (21 October 1966)'."
Tunisia emphasizes the word "approximately" in the phrase "at a bearing [p
208] of approximately 26 [degrees] east of north", which it understands as
signifying "that the degree mentioned is not given as an exact bearing". In
Tunisia's interpretation therefore,
"The exact bearing of the line in question will, therefore, finally depend
on the other two factors mentioned by the Court, which do not admit of any
variation.
For, on the one hand, only one straight line can be drawn through two
specified points : in this case, the frontier point of Ras Ajdir and the
point 33 [degrees] 55' N, 12 [degrees] E. On the other hand, the boundaries
of the Libyan concessions and the Tunisian permit were of course defined in
terms of precise co-ordinates by the official deeds granting them and can be
discovered without risk of error simply by consulting those deeds."
31. Tunisia then goes on to argue not merely that it is insufficient to draw
a straight line from the frontier point through the point 33 [degrees] 55'
N, 12 [degrees] E, without checking that the bearing of the line actually
corresponds to the angle formed by aligning the Libyan concessions on the
Tunisian permit, but even that the criterion constituted by such alignment
is "not a secondary criterion", but "an essential element on which the
equitable character of the delimitation depends and, in truth the ratio
decidendi of the Judgment". This criterion is, it is said, the most
important, because it is "the only one to be meaningful". This Tunisia
deduces from the fact that
"in the Court's eyes, the line that must be adopted in order to ensure an
equitable delimitation must be determined having regard to 'one circumstance
in particular' which it 'finds to be highly relevant to the determination of
the method of delimitation' that the Parties have to follow (Judgment,
paras. 113 and 117). This 'one circumstance in particular', according to the
Court, is related to the conduct of the Parties in granting petroleum
concessions from 1955 to the signature of the Special Agreement. The Court
states that the result of that conduct 'was the appearance on the map of a
de facto line dividing concession areas which were the subject of active
claims' and stemming from the fact that, when the Libyan concessions were
granted, their western boundary fitted alongside the 'stepped' line forming
the eastern boundary of the Tunisian permit of 21 October 1966."
32. The view of Tunisia as to the decisive character of the fact of the
coincidence of the concession boundaries is based upon its own reading of
the operative clause of the 1982 Judgment. That clause, however, falls into
two distinct parts. It first defines what may be called the "determining
line", for the purpose of establishing the starting point of the
delimitation line ; as the Court explained in paragraph 116 of the 1982
Judgment :
"Since the continental shelf begins, for purposes of delimitation, [p 209]
from the outer limit of the territorial sea, the starting point for the line
of delimitation in this case must be from the boundary of the territorial
sea off Ras Ajdir, the exact point (and thus the relationship of the
delimitation line to the unsettled lateral boundary of the territorial sea)
depending upon the direction of the line with respect to Ras Ajdir." (I.C.J.
Reports 1982, p. 83.)
Thus the operative clause defines the starting point as
"the point where the outer limit of the territorial sea of the Parties is
intersected by a straight line drawn from the land frontier point of Ras
Ajdir through the point 33 [degrees] 55' N, 12 [degrees] E, which line runs
at a bearing of approximately 26 [degrees] east of north, corresponding to
the angle followed by the north-western boundary of Libyan petroleum
concessions numbers NC 76, 137, NC 41 and NC 53, which was aligned on the
south-eastern boundary of Tunisian petroleum concession 'Permis
complementaire offshore du Golfe de Gabes'" (ibid., p. 93, para. 133 C (2)).
The definition of the "determining line" -- which is not itself the
delimitation line -- is solely that it is to be "drawn from the land
frontier point of Ras Ajdir through the point 33[degrees] 55' N, 12
[degrees] E" ; the Court then adds, by way of explanation, but not of
definition, that the line runs at a specified approximate bearing, and that
that bearing corresponds to the angle formed by the boundary of the
concessions mentioned. The Court goes on to define the actual delimitation
line as follows :
"from the intersection point so determined, the line of delimitation between
the two continental shelves is to run north-east through the point 33
[degrees] 55' N, 12 [degrees] E, thus on that same bearing [i.e.,
approximately 26 [degrees] east of north]" (ibid., pp. 93-94).
33. In the operative clause of the Judgment there is therefore a single
precise criterion for the drawing of the delimitation line, namely that the
line is to be drawn through two specifically defined points. The
considerations which led the Court to arrive at the choice of that line are
reflected in the operative clause only in so far as they are indicated as an
explanation of the "determining line" ; they are not mentioned at all as
part of the description of the delimitation line itself. The role of the
Parties' experts was consequently limited to establishing with accuracy, and
according to an appropriate geodetic system of reference, the two points
defined by the Court, and drawing a straight line between them, which
involves agreement between the experts as to whether such line is to be
orthodromic or loxodromic. They are not required to concern themselves with
any relationship between that line and the boundaries of the Libyan
concessions or the Tunisian permit.
34. This does not of course fully answer the question whether knowledge of
the precise co-ordinates of Concession No. 137 would have led the Court to
give a different decision. The factual situation may be said to have [p 210]
differed in two respects from that described by the Court in its Judgment.
First, there was in fact a phenomenon of overlapping, albeit slight, as soon
as Concession No. 137 was granted in 1968 ; and this would have been the
case even if the western boundary of Concession No. 137 had run at 26
[degrees] from Ras Ajdir. Secondly, the western boundary of successive
Libyan concessions did not follow a consistent line at 26 [degrees] from Ras
Ajdir, but began one mile to the east of Ras Ajdir, ran to the point 33
[degrees] 55' N, 12 [degrees] E (which point is at 26 [degrees] from Ras
Ajdir), and then turned slightly east so as to run at 26 [degrees] from
there on (boundaries of Concessions NC 41 and NC 53). This was still the
case after part of Concession No. 137 was surrendered and regranted in 1977
as Concession No. NC 76.
35. Tunisia considers that the "entire decision" of the Court was "based on
the idea of alignment between the permits and concessions granted by the two
Parties and on the resultant absence of any overlapping of claims up to 1974
and in the nearest offshore areas, up to 50 miles from the coast", and
therefore contends that since the Libyan concessions did not, on the western
side, "match up with" the Tunisian stepped boundary, this is "certainly a
fact which, if it had been known to the Court, would have led it to adopt a
different approach". This however seems to the Court to be an
over-simplification of its reasoning. In the first place, it should be
recalled that in the operative clause of its Judgment the Court defined the
relevant circumstances to be taken into account in achieving an equitable
delimitation as including the following : the definition of the area
relevant to the delimitation, the general configuration of the coasts of the
Parties, in particular the marked change in direction of the Tunisian
coastline between Ras Ajdir and Ras Kaboudia, the existence and position of
the Kerkennah Islands, the land frontier between the Parties, and their
conduct prior to 1974 in the grant of petroleum concessions, resulting in
the employment of "a line seawards from Ras Ajdir at an angle of
approximately 26 [degrees] east of the meridian, which line corresponds to
the line perpendicular to the coast at the frontier point which had in the
past" (for over 60 years) "been observed as a de facto maritime limit"
(including the respective zones of sponge fishing), and the element of a
reasonable degree of proportionality between continental shelf areas and the
length of the relevant part of the coast (cf. para. 133 B of the 1982
Judgment). The line resulting from the grant of petroleum concessions was
thus by no means the sole consideration taken into account by the Court. As
was explained in the reasoning part of the Judgment,
"the factor of perpendicularity to the coast and the concept of prolongation
of the general direction of the land boundary are, in the view of the Court,
relevant criteria to be taken into account in selecting a line of
delimitation calculated to ensure an equitable solution" (I.C.J. Reports
1982, p. 85, para. 120).[p 211]
The method for ensuring an equitable delimitation indicated by the Court
derived in fact from a balance struck between a number of considerations, a
process which has always been regarded as inherent in the application of
equity in this domain :
"In fact, there is no legal limit to the considerations which States may
take account of for the purpose of making sure that they apply equitable
procedures, and more often than not it is the balancing-up of all such
considerations that will produce this result rather than reliance on one to
the exclusion of all others." (North Sea Continental Shelf, I.C.J. Reports
1969, p. 50, para. 93.)
Tunisia itself, when explaining in its Application the difficulties
encountered in implementing the Judgment, treated the perpendicular to the
general direction of the coastline as a "criterion" to be met by the
delimitation line. While this view attaches too great an importance to one
of the relevant circumstances identified by the Court, it does highlight the
fact that the petroleum concessions line was by no means the sole basis of
the entire decision. Any "new fact" discovered in connection with the
conduct of the Parties in the grant of petroleum concessions is therefore
not necessarily to be regarded as a decisive factor.
36. Secondly, the argument of Tunisia proceeds on the implicit basis of a
narrow interpretation of the term "aligned" employed in the operative clause
of the 1982 Judgment. The Court there refers to the north-western boundary
of Libyan petroleum concessions numbers NC 76, 137, NC 41 and NC 53 as
having been "aligned on the south-eastern boundary" of the Tunisian permit.
According to Tunisia, discovery of the exact co-ordinates of Concession No.
137 reveals that the north-western boundary of the Libyan petroleum
concessions, and in particular that of Concession No. 137, "is not aligned
on" the north-eastern boundary of the Tunisian permit of 1966. It is evident
that the Court did not mean by "aligned" that the boundaries of the relevant
concessions formed a perfect match in the sense that there was neither any
overlap of the concessions nor any sea-bed areas left open between the two
boundaries. The Libyan line was, according to all the references made to it
during the proceedings, a straight line (at a bearing of 26 [degrees] to the
meridian) ; the Tunisian boundary was a stepped line. Thus the Libyan
boundary would necessarily either leave a succession of triangular areas
between itself and the Tunisian boundary, or create a succession of
triangular areas of overlap of the two concessions, or both. Tunisia argues
further that in view of the chronological priority of the Tunisian permit,
"if there was to be any alignment, this could only arise from the Libyan
concession being aligned with the south-eastern boundary of the Tunisian
permit", and that the delimitation line should pass through the most
easterly point of the Tunisian permit. It should however be recalled that
Libya, both in its Counter-Memorial and at the hearings in 1981, referred to
the Tunisian permit boundary as a 26[degrees] line from Ras Ajdir (paragraph
14 above), without correction or contradiction by Tuni-[p 212]sia ; and this
description was adopted by Tunisia itself in its Reply, where it stated that
its own permit was "delimited on the east by a stepped line trending
north-northeast at an angle of approximately 26[degrees] from the Ras Ajdir
meridian". The Court is of course aware that, according to the expert
consulted by Tunisia, the alignment of the stepped boundary may be assessed
in different ways, because the points of the zig-zag do not lie on a
straight line, and that the orientation of the line is calculated by that
expert at bearings varying from 26 [degrees] 59' 22" to 27 [degrees] 50'
01". In 1982, these calculations were not however before the Court, which
was simply informed by both Parties that the Tunisian stepped boundary ran
in a direction of 26 [degrees] from Ras Ajdir. It is therefore evident that,
in relation to the Tunisian stepped boundary, a bearing of 26 [degrees] from
Ras Ajdir was adopted as expressing its general direction ; and it was with
that general direction that the Libyan concession boundary was said by the
Court to be "aligned". The mention by the Court in its decision of the point
33 [degrees] 55' N, 12 [degrees] E, which had been indicated by Libya as the
corner point of Concession No. 137 (and thus also of the adjoining
Concession NC 41), and as lying at 26 [degrees] to the meridian "viewed from
Ras Ajdir", was a convenient concrete means of defining the 26 [degrees]
line. Since the Court was well aware, as it had indicated, that the
alignment of the Tunisian permit and the Libyan concessions was not the
co-incidence of two straight lines, it was not relevant whether or not that
point also lay on the zig-zag boundary of the permit -- a matter which would
have been very difficult to establish from the material then before the
Court.
37. Thirdly, it is necessary to emphasize in what way the "alignment" of the
concession boundaries was significant for the Court. After referring to that
alignment as resulting in
"the appearance on the map of a de facto line dividing concession areas
which were the subject of active claims, in the sense that exploration
activities were authorized by one Party, without interference, or (until
1976) protests, by the other" (I.C.J. Reports 1982, p. 84, para. 117),
the Court continued :
"It should be made clear that the Court is not here making a finding of
tacit agreement between the Parties -- which, in view of their more
extensive and firmly maintained claims, would not be possible -- nor is it
holding that they are debarred by conduct from pressing claims inconsistent
with such conduct on some such basis as estoppel. The aspect now under
consideration of the dispute which the Parties have referred to the Court,
as an alternative to settling it by agreement between themselves, is what
method of delimitation would ensure an equitable result; and it is evident
that the Court must take into account whatever indicia are available of the
line or lines which the Parties themselves may have considered equitable or
acted upon as such -- if only as an interim solution affecting part only of
the area to be delimited." (Ibid., para. 118.)[p 213]
In other words, what the Court regarded as significant was not merely the
fact that Libya had, apparently, limited its 1968 concession so as not to
encroach on Tunisia's 1966 concession ; it was the fact that both Parties
had chosen to use as boundary of the permits or concessions granted by them
a line corresponding, with whatever degree of approximation, to a line drawn
from Ras Ajdir at 26 [degrees] to the meridian. It was the conduct of
Tunisia which was relevant, just as much as that of Libya, even though when
the Tunisian permit was granted in 1966, there was no existing Libyan
concession in the area. Thus the choice of a stepped south-eastern boundary
corresponding approximately to a 26 [degrees] line was an indication of what
line Tunisia considered equitable. Similarly, the choice by Libya of the
point 33 [degrees] 55' N, 12 [degrees] E as the point of origin for
Concession No. 137 -- that point being, it should be reiterated, at a
bearing of 26[degrees] from Ras Ajdir -- suggested that a 26[degrees] line
was at that time also regarded by Libya as equitable, an interpretation
confirmed by Libya's use of that line for Concessions NC 41 and NC 53.
38. Consequently the Court's reasoning is wholly unaffected by the evidence
now produced as to the boundaries of Concession No. 137. The slight overlap
between the Libyan line and the tips of the zig-zags of the Tunisian line,
while possibly of importance for some purposes, could only be of legal
significance if the argument were based on an alleged recognition of the
Tunisian line by Libya giving rise to estoppel ; but the Court specifically
said that that was not the nature of its reasoning. As noted above, the
Tunisian stepped line, for its part, supports a finding of an indication
that Tunisia regarded a line at approximately 26[degrees] to the meridian as
equitable. As to the north-western boundary of Concession No. 137, the fact
that it runs at 24[degrees] 57' is of no significance : what matters is that
its most seaward point lies at 26[degrees] from Ras Ajdir, which would have
to be the starting point for any agreed delimitation of maritime areas
between the Parties. The only straight delimitation line from Ras Ajdir
which would have been consistent with the choice by Libya of the point
33[degrees] 55' N, 12[degrees] E as the north-western corner of its
concession, would be a line at some 26[degrees] to the meridian.
39. This is not of course to say that if the co-ordinates of Concession No.
137 had been clearly indicated to the Court, the 1982 Judgment would
nevertheless have been identically worded. The explanation, given above, of
the distinction between the bearing of the actual boundary of Concession No.
137 (24[degrees] 57' 03") and the bearing of the boundary from Ras Ajdir
implied by the choice of the point 33[degrees] 55' N, 12[degrees] E
(26[degrees]), might usefully have been included. If the Court had found it
necessary to enter into such precise cartographic detail, it might also have
made more precise its finding that "the phenomenon of actual overlapping of
claims did not appear until 1974, and then only in respect of areas some 50
miles from the coast" (para. 117). But what is required for the
admissibility of an application for revision is not that the new fact relied
on might, had it been known, have made it possible for the Court to be more
specific in its decision ; it must [p 214] also have been a "fact of such a
nature as to be a decisive factor". So far from constituting such a fact,
the details of the correct co-ordinates of Concession No. 137 would not have
changed the decision of the Court as to the first sector of the
delimitation.
40. Accordingly, for all the foregoing reasons, the Court must find that the
Application by Tunisia for revision of the 1982 Judgment is not admissible
according to the terms of Article 61 of the Statute.
***
41. The above examination by the Court of the meaning and scope of the 1982
Judgment for the purposes of its decision on the admissibility of the
application for revision of that Judgment considerably simplifies the task
of the Court in dealing with the subsidiary request by Tunisia for the
interpretation of the Judgment as regards the first sector of the
delimitation line, as will be seen below. However, it is first necessary to
deal with a jurisdictional objection raised by Libya. That objection, made
in reliance on the provisions of the Special Agreement on the basis of which
the case was originally brought before the Court, is directed in effect to
the jurisdiction of the Court to entertain any request by Tunisia for
interpretation of the 1982 Judgment. That Special Agreement, signed on 10
June 1977 and notified to the Court on 1 December 1978, provided :
"Article 2
Following the delivery of the Judgment of the Court, the two Parties shall
meet to apply these principles and rules in order to determine the line of
delimitation of the area of the continental shelf appertaining to each of
the two countries, with a view to the conclusion of a treaty in this
respect.
Article 3
In case the agreement mentioned in Article 2 is not reached within a period
of three months, renewable by mutual agreement from the date of delivery of
the Court's Judgment, the two Parties shall together go back to the Court
and request any explanations or clarifications which would facilitate the
task of the two delegations to arrive at the line separating the two areas
of the continental shelf, and the two Parties shall comply with the Judgment
of the Court and with its explanations and clarifications."
Tunisia's present approach to the Court was not made jointly with Libya, and
was -- so far as it seeks an interpretation -- based upon Article 60 of the
Statute rather than upon Article 3 of the Special Agreement. Tunisia did
however in its Application request the Court :[p 215]
"in the event it should deem it possible to construe Article
[56] 3 of the Special Agreement as authorizing its seisin by one Party only
(which seisin would have the effect of obliging the other to return to the
Court alongside the Applicant), to consider the present request as also
founded upon that Article".
Libya's contention is that :
"the provisions of Article 3 of the Special Agreement should be respected by
both Parties, and that if explanations and clarifications are required of
the Court, the Parties should go back 'together'. Such a return, however,
presupposes that the experts of the Parties would have made a good faith
effort to implement the Court's Judgment and that, if they were not
successful, they would have been obligated to indicate the precise points of
difference to be included in the reference to the Court" ;
and that Tunisia has neither endeavoured in good faith to implement the
Court's Judgment, nor indicated the precise points of difference.
42. The question thus arises of the relationship between the procedure
contemplated by Article 3 of the Special Agreement and the possibility for
either Party to request an interpretation of a judgment under Article 60 of
the Statute. Counsel for Tunisia conceded that the recourse provided for in
Article 3 of the Special Agreement is itself a recourse of interpretation,
but contended that the effect of that provision could not be to exclude
Article 60 of the Statute. Libya's argument is that :
"Article 3 requires the Parties to follow a certain procedure : that is, the
evident obligation for them first to exhaust the remedy of seeking
explanations and clarifications under Article 3 of the Special Agreement.
For this reason, Libya considers that the Court does not possess the
requisite jurisdiction to admit the Tunisian request for interpretation."
In other words, Libya's approach is that the jurisdiction of the Court to
entertain a request for interpretation under Article 60 is subject to a
condition requiring the exhaustion of the alternative interpretation
procedure, by joint application to the Court, instituted by Article 3 of the
Special Agreement. In reply to a question put by a Member of the Court, the
Agent of Libya explained further that
"Tunisia had not made a bona fide attempt to agree on points of explanation
or clarification for the purpose of a joint request to the Court under
Article 3 of the Special Agreement. Such a joint request is a necessary
condition for return to the Court under Article 3. The failure of Tunisia to
attempt to specify the point or points of explanation or clarification for
the purposes of a joint request could well be regarded as debarring
Tunisia's resort to Article 60 of the Statute".[p 216]
Libya had, however,
"chosen not to rely on what might be regarded by Tunisia as a purely
technical bar to the present Application. Libya believes that the
application is so lacking in merit that Libya has preferred to oppose it."
It is by no means clear that Libya intended to waive a jurisdictional
objection based on Article 3 of the Special Agreement, which it considered
itself entitled to raise.
43. In view of the importance of the question, the Court finds it necessary
to deal with it. It is of course a fundamental principle that "The consent
of States, parties to a dispute, is the basis of the Court's jurisdiction in
contentious cases" (I.C.J. Reports 1950, p. 71). It follows, first that
parties to treaties or special agreements are free to make their consent to
the seisin of the Court, and hence the Court's jurisdiction, subject to
whatever pre-conditions, consistent with the Statute, as
may be agreed between them ; and secondly, that in principle a State may
validly waive an objection to jurisdiction which it might otherwise have
been entitled to raise. When examining its jurisdiction under Article 36 of
the Statute, the Court is accordingly bound to examine and give effect both
to any such jurisdictional pre-conditions, and to any unambiguous waiver of
a jurisdictional objection. The jurisdiction of the Court to give an
interpretation of one of its own judgments, on the other hand, is a special
jurisdiction deriving directly from Article 60 of the Statute. Thus the
Court has in any event to consider whether the conditions for the existence
of that jurisdiction are fulfilled. Furthermore, the Parties to this case,
in becoming parties to the Statute of the Court, have consented to that
jurisdiction without pre-condition. The effect of Article 3 of the Special
Agreement, as interpreted by Libya as being in pari materia with Article 60
of the Statute, would be to make the right of each Party to request an
interpretation -- a right exercisable unilaterally -- subject to the prior
employment of a procedure requiring the participation of both Parties. In
other words, the exercise of the right of one party to seek an
interpretation under Article 60 of the Statute would be effectively blocked
by the other party, if that party chose not to co-operate. Whether or not
such an agreement could validly derogate -- as between the parties thereto
-- from the Statute, it is not lightly to be presumed that a State would
renounce or fetter its right under Article 60 of the Statute to request an
interpretation unilaterally. Accordingly, the Court is unable to interpret
the Special Agreement in that sense, and does not consider that the request
made by Tunisia for interpretation in reliance on Article 60 of the Statute
is affected by the existence of Article 3 of the Special Agreement.
44. Libya further contends however that the Tunisian request based upon
Article 60 fails in a number of respects to comply with what the Court in
1950 defined as the conditions for the admissibility of such a request,
namely :[p 217]
"(1) The real purpose of the request must be to obtain an interpretation of
the judgment. This signifies that its object must be solely to obtain
clarification of the meaning and the scope of what the Court has decided
with binding force, and not to obtain an answer to questions not so decided.
Any other construction of Article 60 of the Statute would nullify the
provision of the article that the judgment is final and without appeal.
(2) In addition, it is necessary that there should exist a dispute as to the
meaning or scope of the judgment." (Request for Interpretation of the
Judgment of 20 November 1950 in the Asylum Case, I.C.J. Reports 1950, p.
402.)
45. Libya contends that "the essence of the Tunisian request is not
interpretation, but something quite different", namely a "plea for revision
of the Court's Judgment", an attempt "to alter what the Court has already
decided with binding force", namely the indication that the delimitation
line was to run through the point 33[degrees] 55' N, 12[degrees] E. Tunisia
however argues that the co-ordinates of that point have no intrinsic
significance, and "in all probability were merely calculated by reference to
prior elements", i.e., that the line had to correspond to the criterion
which Tunisia regarded as "the only one to be meaningful", as explained in
paragraph 31 above, the "alignment" of the Tunisian permit and the Libyan
concessions ; in other words Tunisia contends that the indication in the
1982 Judgment that the line should pass through the point 33[degrees] 55' N,
12[degrees] E, does not constitute a matter decided with binding force. It
will be apparent from what has already been said on the request for revision
that the Court is unable to uphold Tunisia's view on this issue ; but this
is not in itself a reason for holding the request for interpretation to have
been inadmissible. Similarly, the argument of Libya that the object of
Tunisia's request for interpretation is to alter what the Court has decided
with binding force rests upon a particular view as to what has been so
decided ; it is therefore a refutation of the interpretation proposed by
Tunisia rather than an objection to its admissibility.
46. On the question whether there exists a "dispute between the Parties as
to the meaning or scope of the judgment", the Court notes that in Libya's
contention, Tunisia has failed to specify precisely what differences it had
with Libya's position on the implementation of the 1982 Judgment as set out
in a Libyan diplomatic Note of 10 August 1982. Tunisia has therefore, it is
contended, failed to show the existence of such a dispute. Libya has
emphasized the reluctance of Tunisia to define exactly what were the
difficulties which it claimed to encounter in the implementation of the
Judgment, so that it was not until the Application was filed that Libya was
really informed of the basis of Tunisia's objection. In this respect, the
Court would recall the ruling of the Permanent Court of International
Justice, in its decision on the Interpretation of Judgments [p 218] Nos. 7
and 8 (Factory at Chorzow), concerning the application of Article 60 of the
Statute of that Court :
"In so far as concerns the word 'dispute', the Court observes that,
according to the tenor of Article 60 of the Statute, the manifestation of
the existence of the dispute in a specific manner, as for instance by
diplomatic negotiations, is not required. It would no doubt be desirable
that a State should not proceed to take as serious a step as summoning
another State to appear before the Court without having previously, within
reasonable limits, endeavoured to make it quite clear that a difference of
views is in question which has not been capable of being otherwise overcome.
But in view of the wording of the article, the Court considers that it
cannot require that the dispute should have manifested itself in a formal
way; according to the Court's view, it should be sufficient if the two
Governments have in fact shown themselves as holding opposite views in
regard to the meaning or scope of a judgment of the Court." (Judgment No.
11, 1927, P.C.I.J., Series A, No. 13, pp. 10-11.)
The question is therefore limited to whether the difference of views between
the Parties which has manifested itself before the Court is "a difference of
opinion between the Parties as to those points in the judgment in question
which have been decided with binding force", including "A difference of
opinion as to whether a particular point has or has not been decided with
binding force" (ibid., pp. 11-12).
47. In this respect, the Court considers it useful, before proceeding
further, to make certain observations as to the meaning of "binding force"
and the significance of the principle of res judicata in the circumstances
of the present case. Under the Special Agreement by which the Court was
originally seised, the role of the Court was limited to indicating the
principles and rules of international law applicable to the delimitation,
and specifying precisely the practical way in which they apply in the
particular situation ; the Parties undertook to meet to put into effect the
principles and rules to determine the line of delimitation, with a view to
the conclusion of a treaty (Art. 2 of the Special Agreement). It is always
open to the parties to a dispute to have recourse to a conjunction of
judicial determination and settlement by agreement. In the special case of
continental shelf delimitation, one of the underlying principles is that
"delimitation must be the object of agreement between the States concerned"
(North Sea Continental Shelf, I.C.J. Reports 1969, p. 46, para. 85).
48. The fact however that the Parties did not entrust the Court in this case
with the task of drawing the delimitation line itself in no way affects the
Judgment of the Court or its binding effect on the Parties as a matter of
res judicata ; and indeed the Court noted in 1982 that
"Articles 2 and 3 of the Special Agreement make it clear that the Parties
recognize the obligation to comply with the Judgment of the Court." (I.C.J.
Reports 1982, p. 40, para. 30.)[p 219]
It will be the treaty contemplated by Article 2 of the Special Agreement
which will contain the final delimitation. The treaty will however be the
implementation of an obligation already entered into, in Article 2 of the
Special Agreement ; and that provision is not a bare pactum de contrahendo.
The Parties have undertaken not merely to conclude a treaty, but in doing so
to apply the principles and rules indicated by the Court in its 1982
Judgment. While the Parties requested the Court to indicate "what principles
and rules of international law may be applied for the delimitation of the
area of the continental shelf", they may of course still reach mutual
agreement upon a delimitation that does not correspond to that decision.
Nevertheless, it must be understood that in such circumstances their accord
will constitute an instrument superseding their Special Agreement. What
should be emphasized is that, failing such mutual agreement, the terms of
the Court's Judgment are definitive and binding. In any event moreover, they
stand, not as something proposed to the Parties by the Court, but as
something established by the Court.
49. It follows that it is not possible to argue a priori that any specific
indications as to angles, distances or co-ordinates to be found in the 1982
Judgment are necessarily, because of the limitations placed on the role of
the Court by the Special Agreement, to be read as no more than
approximations or "guidance" -- a term used by Libya in 1982, and
specifically rejected by the Court (I.C.J. Reports 1982, p. 40, para. 29).
The Court made it clear that
"the degree of precision which is, in its view, called for, will be apparent
when it comes to indicate the practical method for application of the
relevant principles and rules" (ibid., para. 30) ;
and the method in fact differed for the two sectors of the delimitation.
However, the opposite presumption would also be false : in particular, it is
not to be supposed that all figures used in the Judgment would have to be
regarded as absolute. Each such reference must be read in its context, to
establish whether the Court intended it as a precise statement, an
approximation for working purposes, or a simple indication subject to
variation.
50. In its Application, Tunisia states that the object of the request for
interpretation, so far as concerns the first sector of the delimitation, is
"to obtain some clarifications, notably as regards the hierarchy to be
established between the criteria adopted by the Court, having regard to the
impossibility of simultaneously applying these criteria to determine the
starting-point of the delimitation line as well as the bearing of that line
from due north".
Tunisia further argues that "the boundary to be taken into consideration for
the establishment of a delimitation line can only be the south-eastern
boundary of the Tunisian permit of 1966" ; it has presented a detailed
submission on the question of interpretation designed to give effect to that
contention. However, in the course of its examination of the request for
re-[p 220]vision of the 1982 Judgment, the Court has already explained
(paragraph 33 above) that that Judgment laid down a single precise criterion
for the drawing of the line, namely that it is to be a straight line drawn
through two specifically defined points, a criterion involving simply the
application of the experts' professional knowledge in the field of geodesy
and cartography. The request for interpretation is therefore founded upon a
misreading of the purport of the relevant passage of the operative clause of
the 1982 Judgment. The Court therefore finds the Tunisian request for
interpretation in the first sector to be admissible, but is unable to uphold
Tunisia's submission as to the correct interpretation of the Judgment in
this respect ; and since it has been possible for the Court to clear up the
misunderstanding in the course of its reasoning on the admissibility of the
request for revision, the Court considers that there is nothing to be added
to what it has already said as to the meaning and scope of the 1982 Judgment
in that reasoning.
***
51. Tunisia has also sought from the Court in the present proceedings "The
rectification of an error", the final submission of Tunisia in this respect
being
"That there is cause to replace the co-ordinates 33 [degrees] 55' N, 12
[degrees] E, mentioned in section C (2) of paragraph 133 of the Judgment of
24 February 1982, with the co-ordinates 33 [degrees] 50' 17" N, 11 [degrees]
59' 53" E.
If this correction is made, the point so defined will be the point at sea
through which the delimitation line must pass ; there will therefore be no
need for the experts to calculate it."
This submission is based upon the view expressed by Tunisia that the
criterion whereby the delimitation line should run at the angle formed by
aligning the Libyan concessions on the Tunisian permit is "in truth the
ratio decidendi of the Judgment". As noted in paragraph 36 above, Tunisia
recalls that its permit chronologically preceded the Libyan concessions, and
deduces that
"If there was to be any alignment, this could only arise from the Libyan
concession being aligned with the south-eastern boundary of the Tunisian
permit . . ."
Accordingly, in Tunisia's view,
"alignment on the Tunisian permit without encroachment in the delimitation
area . . . can be achieved solely by drawing a straight line from the
frontier point of Ras Ajdir through point 33 [degrees] 50' 17" N and 11
[degrees] 59' 53" E, which is the most easterly point of the Tunisian permit
. . . There is therefore cause to correct an error by substituting the
co-ordinates of that point for the co-ordinates 33 [degrees] 55' N 12
[degrees] E mistakenly mentioned by the Court on the basis of the inexact
indications given by Libya in its pleadings." [p 221]
52. It will be apparent from what has gone before that the choice by the
Court of the point 33 [degrees] 55' N, 12 [degrees] E to define the
delimitation line drawn seawards from the intersection of the line joining
that point to Ras Ajdir was not the result of the application of a criterion
whereby the delimitation line had to avoid encroachment on the Tunisian
permit, or a more general criterion of avoidance of overlapping. As observed
above (paragraph 36), that point, taken from the description by Libya of the
position of its Concession No. 137, was chosen as a convenient concrete
means of defining the 26 [degrees] line from Ras Ajdir which appeared to the
Court, from the balancing-up of relevant considerations, to be the
appropriate method of effecting an equitable delimitation, and is integral
to the whole construction. Accordingly, the application of Tunisia proves in
this respect to be based upon a misreading of the Judgment, and has thus
become without object. There is therefore no need for the Court to examine
the wider question of the correction of an error in a judgment.
***
53. The Court now turns to the request made by Tunisia for an interpretation
of the 1982 Judgment in so far as it concerns the second sector of the
delimitation line contemplated by that Judgment. The turning point between
the two sectors of that line was defined by the Court as follows. After
noting that there was a radical change in the general direction of the
Tunisian coastline marked by the Gulf of Gabes (para. 122), the Court said :
"The change in direction of the coast is . . . a fact which must be taken
into account; and the Court considers that an appropriate point on the coast
to be employed as a reference-point for reflecting that change in the
delimitation, and one which has the advantage of being susceptible of
objective determination, as a matter of geography, is 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. Again the precise co-ordinates of this point will be for the
experts to determine, but it appears to the Court that it will be
approximately 34 [degrees] 10' 30" north." (I.C.J. Reports 1982, p. 87,
para. 124.)
In the operative clause of the Judgment, it was provided that the first
sector of the line was to run on the bearing of approximately 26 [degrees],
defined as explained above,
"to 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" (ibid., p. 94, para. 133 C (2)).[p 222]
No co-ordinates, even approximate, were indicated in the operative part of
the Judgment to identify what in the Court's view was "the most westerly
point" of the Gulf of Gabes. According to Tunisia, the role of the Parties'
experts is "to determine the precise location of this point [the most
westerly point on the shoreline] by all existing means, including the use of
maps and topographical surveys" ; and the indication of the parallel 34
[degrees] 10' 30" north was given by the Court "without rigour
('approximately') and for the purpose of facilitating the description of the
method to be prescribed by the Court for drawing the second sector of the
delimitation line". The Libyan experts, Tunisia states, "have clung to
co-ordinate 34 [degrees] 10' 30" N, insisting that it had been given by the
Court's Judgment and that the experts should confine themselves to a strict
application of that Judgment".
54. The dispute between the Parties as regards the second sector thus
centres round the relationship between
"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",
and the intersection of the shoreline by the parallel 34 [degrees] 10' 30"
north, mentioned in paragraph 124 of the Judgment. In reply to a question by
a Member of the Court, Tunisia explained that in its view the co-ordinates
34 [degrees] 10' 30" north given in the Judgment do not have any binding
character on the Parties, since they are not repeated in the operative part
of the Judgment. The expert consulted by Tunisia advises that the most
westerly point on the shoreline of the Gulf is at 34 [degrees] 05' 20" N (on
the Carthage geodetic system) or 34 [degrees] 05' 30" N (on the ED 50
geodetic system). For reasons to be examined in a moment, that expert
rejects the point, in the region of 34 [degrees] 10', where "a tidal channel
runs into [the mouth of a wadi] as far as a more westerly longitude than
that of the points considered" earlier in his report. Libya, on the other
hand, regards the task of the experts as "technical but of a very narrow
scope, since the Court had already made its own preliminary, yet very
precise, calculation" ; the plotting of the point left to the experts was "a
matter perhaps of seconds, not minutes or degrees". For Libya, the 1982
Judgment makes it clear that, in the Court's view, the change in the
direction of the Tunisian coast occurs at the point described by the Court
with some precision, namely at the latitude of 34 [degrees] 10' 30" N.
55. For the purposes of the conditions of admissibility of a request for
interpretation, set out in paragraph 44 above, it may be noted that there is
thus clearly a dispute between the Parties as to the significance, for the
interpretation of the expression "the most westerly point" of the Gulf of
Gabes, of the presence of a tidal channel in the region of latitude 34
[degrees] 10'. More fundamentally, there is a dispute as to what in the 1982
Judgment has been decided with binding force : whether it was decided that
the turning point between the first and second sectors of the delimitation
line should [p 223] be on the parallel of a point on the Tunisian shoreline
already identified by the Court as furthest to the west, and lying on, or
very near, the parallel 34 [degrees] 10' 30" ; or whether the Court merely
found that the parallel to determine the turning point should be drawn
through whatever the Parties' experts might regard as the most westerly
point of the Gulf, whether or not it lay in the neighbourhood of 34
[degrees] 10' 30". This formulation of the dispute does not however imply
that the Court has to choose between the two possible interpretations thus
enunciated. As the Permanent Court observed, "the Court does not consider
itself as bound simply to reply 'yes' or 'no' to the propositions formulated
in the submissions" of one or the other party, "because, for the purpose of
the interpretation of a judgment, it cannot be bound by formulae chosen by
the Parties concerned, but must be able to take an unhampered decision"
(P.C.I.J., Series A, No. 13, pp. 15-16).
56. It is however a condition of admissibility of a request for
interpretation, as already noted, not only that there be a dispute between
the parties as to the meaning or scope of the judgment, but also that the
real purpose of the request be to obtain an interpretation -- a
clarification of that meaning and scope. In the present case Libya has
contended that while in form the submission of Tunisia in respect of the
second sector of the delimitation is a request for interpretation, behind it
"lies another request for revision of the Judgment" ; that "the real object
of the Application is a substantial revision of the Court's Judgment".
However, the Court has established that there is a dispute between the
Parties as to what, on a particular question, the Court decided with binding
force in the 1982 Judgment ; and it is also clear that Tunisia is asking the
Court for "clarification of the meaning and scope of what the Court has
decided" in that respect. So far as the Tunisian request for interpretation
may go further, and seek "to obtain an answer to questions not so decided",
or to achieve a revision of the Judgment, no effect can be given to it ; but
within the limits defined by Article 60 of the Statute, it is admissible.
Consequently, the Court will examine the contentions of Tunisia under this
head solely in so far as they relate to the subject of Article 60 of the
Statute, namely, the meaning and scope of the 1982 Judgment.
57. As already noted, even the expert consulted by Tunisia recognizes that
there is on the Tunisian coast, in the region of the parallel 34 [degrees]
10' 30" north indicated by the Court, a point where tidal waters extend as
far as a more westerly longitude than any of the other points considered by
him. The reason why the expert nevertheless rejects the point appears to be
twofold : in the first place, he assimilates it to
"a localized feature which is entirely independent of the general morphology
of the Gulf and cannot reasonably be considered as marking the point where
the general direction of the coastline moves from northwest to northeast --
that being the criterion chosen by the Court to determine the latitude at
which the bearing of the maritime [p 224] delimitation line should be
modified (Judgment, paras. 123 and 124)".
Secondly, the expert expresses the view that
"For the purpose of [the] determination [of the latitude where the coast
changes direction], the low-water line must be considered as closed by the
continuity existing on either side of the low-tide elevation which splits
the channel in two where it meets the sea. Despite the insignificant size of
the channels, this closure may, if one so wishes, be interpreted as an
estuary closing line replacing at this spot the physical low-water line in
conformity with the law governing the definition of baselines."
In its reply to a question put by a Member of the Court, Tunisia indicated
more specifically that, in its contention, if the Court had been aware that
the parallel 34 [degrees] 10' 30" north intersected the coast in the mouth
of a wadi,
"it would have borne in mind that, under Article 13 of the 1958 Convention
on the Territorial Sea and the Contiguous Zone, the text of which embodies
customary law and has been taken up into Article 9 of the Montego Bay
Convention, the shoreline (low-water mark) at a mouth is a straight line
drawn between the points on the low-tide line of the banks".
Libya on the other hand dismisses the presence of a wadi as irrelevant,
since "in Libya's view the task assigned to the experts was not to identify
baselines but, quite specifically, to identify the most westerly point on
the low-water mark".
58. So far as the first difficulty raised by the expert consulted by Tunisia
is concerned, it should be recalled that in its 1982 Judgment the Court was
careful not to indicate that the delimitation line should "change direction
in relation to the point at which the coastline changes direction", since it
considered that the latter point would "not necessarily be the subject of
agreement among geographers or cartographers, and in short cannot be
objectively determined as a matter of fact" (I.C.J. Reports 1982, p. 87,
para. 123). If the Court were to employ the change of direction as
criterion,
"it would be leaving room for extensive disagreement between the experts of
the Parties, which would not necessarily be capable of final resolution.
This would not, it seems to the Court, be a proper discharge of its duty to
indicate the practical method of delimitation in such a way as to enable the
experts to effect the delimitation 'without any difficulties'." (Ibid.)
The Court took the view that
"an appropriate point on the coast to be employed as a reference-point for
reflecting that change in the delimitation, and one which has the advantage
of being susceptible of objective determination as a [p 225] matter of
geography, is 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" (I.C.J. Reports 1982, p.
87, para. 124).
If however one of the criteria for determining the "most westerly point on
the shoreline" were whether a given point could "reasonably be considered as
marking the point where the general direction of the coastline moves from
northwest to northeast", the experts of the Parties would be thrown back on
to the problem of the location of the point of change of direction, which
the Court had excluded as one which "cannot be objectively determined as a
matter of fact". The Court meant by "the most westerly point on the
shoreline (low-water mark) of the Gulf of Gabes" simply the point on the
shoreline which is further to the west than any other point on the shoreline
; it did not mean "the most westerly point which could reasonably be
considered as marking the point where the general direction of the coastline
changes". The relationship between the two concepts, that of the "most
westerly point" and that of the "change of direction" is not that the one
defines the other, but simply that, bearing in mind the difficulties of
definition of the latter concept, the former is "an appropriate point . . .
to be employed as a reference-point for reflecting" the latter.
59. As to the relevance of the alleged presence of a wadi at approximately
the latitude referred to by the Court, the fact is again that the Court, by
referring to "the most westerly point on the shoreline (low-water mark) of
the Gulf of Gabes" meant exactly what it said, the expression "low-water
mark" being intended to refer to an established concept. Had its intention
been to refer to the most westerly point on the baselines from which the
breadth of the territorial sea was, or might be, measured, it would have
said so. Furthermore, the Court itself recorded in the 1982 Judgment that a
Tunisian Law of 2 August 1973 and a Tunisian Decree of 3 November 1973 had
in fact defined straight baselines in the area, declared the closing of the
Gulf of Gabes by a straight line, and declared that the waters of the Gulf
were "internal waters". The Court also noted that Libya considered that
those lines were not opposable to Libya (I.C.J. Reports 1982, pp. 74-75,
para. 101). The Court was therefore well aware that Tunisia was not claiming
to draw straight baselines between comparatively minor features of the coast
of the Gulf of Gabes, since it regarded the whole of the Gulf as internal
waters. The Court also took care to avoid making any unnecessary ruling on
the validity of the Tunisian baselines and claim to internal waters (ibid.,
pp. 76-77, para. 105). In these circumstances, the contention that the Court
would have applied the law relating to straight baselines, and specifically
Article 13 of the 1958 Geneva Convention on the Territorial Sea and the
Contiguous Zone, within the Gulf of Gabes, to exclude from its definition of
the "most westerly point" a point lying in the mouth of a wadi, must be
regarded as untenable.
60. The above explanation suffices to dispose of one of the questions in [p
226] dispute between the Parties as to the meaning and scope of the 1982
Judgment. There remains the question of the significance to be attached to
the Court's reference to the latitude 34 [degrees] 10' 30" north. As Tunisia
has pointed out, that specific reference is not to be found in the operative
part of the 1982 Judgment ; yet Libya contends that it has been decided by
the Court that the change in direction of the coastline in the Gulf of Gabes
occurs at 34 [degrees] 10' 30" north, and that it is not open to the experts
of either Party to substitute their own views on that point. It must however
be reiterated that the Court in 1982 was not concerned to identify the point
of change of direction -- a question on which it recognized that there was
room for disagreement -- but simply the most westerly point on the shoreline
of the Gulf of Gabes "as a reference-point for reflecting that change"
(I.C.J. Reports 1982, p. 87, para. 124). The Court then expressly stated
that "the precise co-ordinates of this point will be for the experts to
determine" before adding that "it appears to the Court that it will be
approximately 34 [degrees] 10' 30" north" (ibid.). The Court had thus
already indicated the approximate position of that point. It should not be
overlooked that during the proceedings leading up to the 1982 Judgment
neither Party submitted to the Court any large-scale charts or maps of the
Gulf; and on the small-scale maps then before the Court, the "most westerly
point" appears within a small nick in the coastline. While leaving it to the
experts to determine its "precise co-ordinates", the Court nevertheless
stated that it appeared to it that the point was at approximately 34
[degrees] 10' 30" north.
61. It was of course necessary for the Court in 1982 to have some reasonably
accurate idea of the latitude of the most westerly point in order to assess
properly the effect on the delimitation of the change in direction of the
line which it had found to be appropriate (paras. 122 to 123 of the 1982
Judgment). The discussion by the Court of the effect to be attributed to the
Kerkennah Islands (paras. 127-129), and of the requirements of the test of
proportionality (paras. 130-131) would have been wholly unrealistic unless
the Court had before it some indication of the latitude at which the angle
of the delimitation line was to change. It therefore employed a specified
latitude, namely 34 [degrees] 10' 30" north, as a working definition of the
point it had in mind. The working definition thus employed was not binding
on the Parties ; in this respect, it is significant, first that the mention
of that latitude was qualified by the word "approximately", and secondly
that the operative part of the Judgment did not mention the latitude in
question. However, what was specified in the operative part of the Judgment
(para. 133 C (3)) was the effect to be given to the Kerkennah Islands, a
paragraph of the decision the whole of which must be respected as given with
binding force.
62. It follows that the Court is unable to uphold the final submission of
Tunisia on this point, that "the most westerly point of the Gulf of Gabes
lies on latitude 34 [degrees] 05' 20" N (Carthage)". The Court expressly
decided in 1982 that "the precise co-ordinates of this point will be for the
experts to determine" (para. 124), and it would not be consistent with that
decision [p 227] for the Court to state that a specific co-ordinate
constituted the most westerly point of the Gulf of Gabes.
63. To sum up, the task of the experts of the Parties is, so far as regards
the determination of the latitude at which the bearing of the delimitation
line is to change, as follows. That latitude is, as made clear in the 1982
Judgment, to be that of the most westerly point on the shoreline (low-water
mark) of the Gulf of Gabes. It has however also to be borne in mind that the
working definition of the latitude in question, though stated
"approximately", was the basis for the effect given to the Kerkennah Islands
in paragraph 133 C (3) of the Judgment. Employing for the purpose whatever
charts and maps they may consider appropriate, but disregarding any actual
or potential straight baselines, the experts should seek to define on the
low-water mark the most westerly point of the Gulf of Gabes. If, as appears
from the report of the expert consulted by Tunisia, the tidal waters of the
Gulf attain their most westerly reach in a channel leading up to a wadi,
that geographical circumstance should be accepted as it is. Should it prove
that such channel clearly extends further west than any other point on the
low-water mark of the coast of the Gulf, but the cartographic or other
material available does not suffice to establish the exact position of the
most westerly point on the low-water mark within the channel, then it will
be for the Parties, with the assistance of their experts, to decide whether
to adopt in this respect the indications given by the existing maps, or
whether to proceed to a special survey in loco.
***
64. The Court must now deal with the final submission of Tunisia, namely
"That there is cause to order an expert survey for the purpose of
ascertaining the exact co-ordinates of the most westerly point of the Gulf
of Gabes."
This submission was presented by Tunisia "altogether subsidiarily". However,
since the Court is unable to uphold Tunisia's main submission as regards the
second sector of the delimitation indicated in the 1982 Judgment (namely
"That the most westerly point of the Gulf of Gabes lies on latitude 34
[degrees] 05' 20" N (Carthage)"), the Court would not be disposing fully of
the case if it were not to deal with the subsidiary submission. That
submission was presented only in the course of the oral proceedings ; Libya,
which contends that the application by Tunisia for interpretation is, as a
whole, unjustified, has not commented specifically on the request for an
expert survey. The request by Tunisia must therefore be regarded as a
unilateral one, but one to which Libya has not expressly objected.
65. Under Article 50 of its Statute, the Court has power "at any time" to [p
228] direct the carrying out of an enquiry, or to obtain an expert opinion.
The wording used in this provision is quite clear. At any time during
proceedings in a case, the Court is empowered to "entrust any individual,
body, bureau, commission, or other organization that it may select, with the
task of . . . giving an expert opinion". However, this provision must be
read in relation to the terms in which jurisdiction is conferred upon the
Court in a specific case ; the purpose of the expert opinion must be to
assist the Court in giving judgment upon the issues submitted to it for
decision. In the present case, therefore, it would be appropriate to accede
to the request of Tunisia only if the determination of the exact
co-ordinates of the most westerly point of the Gulf of Gabes were required
to enable the Court to give judgment on the matters submitted to it. The
Court is however at present seised of a request for interpretation of a
previous judgment ; and as the Permanent Court of International Justice
observed, such an interpretation :
"adds nothing to the decision, which has acquired the force of res judicata,
and can only have binding force within the limits of what was decided in the
judgment construed" (Interpretation of Judgments Nos. 7 and 8 (Factory at
Chorzow), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 21).
Already, in its 1982 Judgment, the Court stipulated that it did not purport
to determine the exact co-ordinates of the most westerly point of the Gulf
of Gabes ; on the contrary, as pointed out in paragraph 60 above, it stated
expressly that "the precise co-ordinates of this point will be for the
experts to determine" (I.C.J. Reports 1982, p. 87, para. 124). It is clear
that it is to the experts of the Parties that the Court is referring, even
if it does not specifically say so, not to an expert appointed by the Court.
66. The question before the Court is what it can now do in regard to
Tunisia's subsidiary request relating to the second sector of delimitation,
having taken a decision, within the jurisdiction conferred upon it by the
Parties' Special Agreement, to leave to the experts of these Parties the
task of establishing the exact co-ordinates of the most westerly point of
the shoreline (low-water mark) of the Gulf of Gabes. The Court in its 1982
Judgment could of course have determined this point, if necessary by
appointing an expert for the purpose, since according to the Court the point
was a necessary element in the decision as to the practical method to be
used. Nevertheless it did not do so, preferring to leave this task to the
experts of the Parties. Its decision in this respect is covered by the force
of res judicata. This does not, however, mean that the force of res judicata
is such as to prevent the Parties returning to the Court to present a joint
request that it should order an expert survey to establish the precise
co-ordinates of the most westerly point of the Gulf of Gabes. But they would
have to do so by means of an agreement. At all events, this point is
susceptible of geographical determination, despite the circumstances that it
may lie in the mouth of a wadi.[p 229]
67. Whether, and in what circumstances, the Court might in the future give
effect to a request to appoint an expert submitted by one party only, does
not fall to be considered at the present time. The Parties have, in their
Special Agreement, undertaken an obligation to conclude a treaty for the
purpose of the delimitation. An obligation to negotiate entails for the
parties to it
"an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when either of them insists upon its
own position without contemplating any modification of it" (North Sea
Continental Shelf, I.C.J. Reports 1969, p. 47, para. 85 (a)).
This must a fortiori be so where, as the Court has noted above (paragraph
48), there is an obligation to conclude a treaty. It is not for the Court to
contemplate the contingency of such an obligation not being complied with
(cf. S.S. "Wimbledon", Judgments, 1923, P.C.I.J., Series A, No. 1, p. 32 ;
Factory at Chorzow, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No.
17, pp. 62-63). Yet, judging by what has been brought to the attention of
the Court by the two Parties in the present proceedings, no progress has
been made in implementing the Special Agreement following the 1982 Judgment.
68. Thus the Court is bound to note that the obligation still rests upon
both Parties to carry out the Special Agreement to the very end, and to have
the 1982 Judgment implemented so that the dispute is finally disposed of.
Thus the Parties must ensure that their experts and representatives engage
in a sincere exercise involving a genuine effort to determine the precise
co-ordinates of the most westerly point on the shoreline (low-water mark) of
the Gulf of Gabes, in the light of the indications furnished in the present
Judgment, with a view to the conclusion of the delimitation treaty.
***
69. For these reasons,
The Court,
A. Unanimously,
Finds inadmissible the request submitted by the Republic of Tunisia for
revision, under Article 61 of the Statute of the Court, of the Judgment
given by the Court on 24 February 1982 ;
B. Unanimously,
(1) Finds admissible the request submitted by the Republic of Tunisia for
interpretation, under Article 60 of the Statute of the Court, of the [p 230]
Judgment of 24 February 1982 as far as it relates to the first sector of the
delimitation contemplated by that Judgment ;
(2) Declares, by way of interpretation of the Judgment of 24 February 1982,
that the meaning and scope of that part of the Judgment which relates to the
first sector of the delimitation are to be understood according to
paragraphs 32 to 39 of the present Judgment ;
(3) Finds that the submission of the Republic of Tunisia of 14 June 1985
relating to the first sector of the delimitation, cannot be upheld ;
C. Unanimously,
Finds that the request of the Republic of Tunisia for the correction of an
error is without object and that the Court is therefore not called upon to
give a decision thereon ;
D. Unanimously,
(1) Finds admissible the request submitted by the Republic of Tunisia for
interpretation, under Article 60 of the Statute of the Court, of the
Judgment of 24 February 1982 as far as it relates to the "most westerly
point of the Gulf of Gabes" ;
(2) Declares, by way of interpretation of the Judgment of 24 February 1982,
(a) that the reference in paragraph 124 of that Judgment to "approximately
34 [degrees] 10' 30" north" is a general indication of the latitude of the
point which appeared to the Court to be the most westerly point on the
shoreline (low-water mark) of the Gulf of Gabes, it being left to the
experts of the Parties to determine the precise co-ordinates of that point ;
that the latitude of 34 [degrees] 10' 30" was therefore not intended to be
itself binding on the Parties but was employed for the purpose of clarifying
what was decided with binding force in paragraph 133 C (3) of that Judgment
;
(b) that the reference in paragraph 133 C (2) of that Judgment to "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", and the similar reference in paragraph 133 C (3) are to
be understood as meaning the point on that shoreline which is furthest to
the west on the low-water mark ; and
(c) that it will be for the experts of the Parties, making use of all
available cartographic documents and, if necessary, carrying out an ad hoc
survey in loco, to determine the precise co-ordinates of that point, whether
or not it lies within a channel or the mouth of a wadi, and regardless of
whether or not such point might be regarded by the experts as marking a
change in direction of the coastline ;
(3) Finds that the submission of the Republic of Tunisia, "that the most
westerly point of the Gulf of Gabes lies on latitude 34 [degrees] 05' 20" N
(Carthage)", cannot be upheld ;[p 231]
E. Unanimously,
Finds that, with respect to the submission of the Republic of Tunisia of 14
June 1985, there is at the present time no cause for the Court to order an
expert survey for the purpose of ascertaining the precise co-ordinates of
the most westerly point of the Gulf of Gabes.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this tenth day of December, one thousand nine
hundred and eighty-five, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Republic of Tunisia and to the Government of the Socialist People's Libyan
Arab Jamahiriya, respectively.
(Signed) Nagendra Singh,
President.
(Signed) Santiago Torres Bern�rdez,
Registrar.
Judges Ruda, Oda and Schwebel and Judge ad hoc Bastid append separate
opinions to the Judgment of the Court.
(Initialled) N.S.
(Initialled) S.T.B.
[p 232]
Separate opinion of judge Ruda
1. I have voted in favour of the operative clauses of the Judgment and I
subscribe to most of its reasoning. However, I am bound to dissent from the
conclusions reached in paragraphs 41, 42 and 43, which refer to what the
Court calls "a jurisdictional objection raised by Libya".
2. Tunisia submitted two requests for interpretation and one for correction
of an error. One of the requests for interpretation, and the request for
correction of an error, concern the first sector of the delimitation, the
other request for interpretation concerns the second sector.
3. Although the requests for interpretation were submitted in relation to
different sectors and have a different nature, because one has a subsidiary
character and the other is a principal request, both were objected to in
Libya's Observations on the basis of Article 3 of the Special Agreement of
June 1977.
4. Libya developed its argument in paragraphs 69-73 of its Observations,
recalling that the Special Agreement provided the basis of the Court's
jurisdiction, and that it included in Article 3 a procedure to be followed
in case of lack of agreement on the delimitation, following the Court's
Judgment. This procedure of Article 3 provides that after a certain period,
the Parties
"shall together go back to the Court and request any explanations or
clarifications which would facilitate the task of the two delegations to
arrive at a line separating the two areas of the continental shelf".
Libya understands that the Parties should go back "together" to the Court,
after making an effort, in good faith, to implement the Judgment; if this
effort fails, they are obliged to indicate the points of difference. That is
what Tunisia, according to Libya, had not done, refusing "to specify the
difficulties it had with the way Libya has indicated the Judgment should be
implemented". Libya, then, submitted that the point was not whether Article
103 of the United Nations Charter overrides Article 3 of the compromis, an
argument advanced by Tunisia in the Request, but that Article 3 required the
parties to follow a certain procedure; it added "that is, the evident
obligation for them first to exhaust the remedy of seeking explanations and
clarifications, under Article 3 of the Special Agreement". Libya concluded
that "the Court does not possess the requisite jurisdiction to admit the
request for interpretation". However, in the submissions included in the
Observations, Libya did not insist on this proposition.[p 233]
5. The argument of lack of jurisdiction faded away in the course of the oral
pleadings. The Libyan Agent said:
"Finally, I should like to make clear that Libya never refused to return
jointly to the Court to seek explanations and clarifications under Article 3
of the Special Agreement. However, Libya did insist that Tunisia set forth
in writing its precise position as Libya had done. The diplomatic exchanges
leave no room for doubt on this. Let me point out that the Court has been
provided with the whole file by Libya, not by Tunisia. I urge Members of the
Court to read that file since it reveals Tunisia's attitude. The repeated
claims of counsel for Tunisia that Libya rejected Article 3 and refused to
return cannot change the truth. As the record shows, it was apparent from
the start that what Tunisia sought was modification, not clarification.
Tunisia never set forth precisely in writing the points it considered to
require explanations and clarifications. In contrast, Libya set forth its
position in writing in the clearest terms." (Sitting of 17 June 1985.)
6. Counsel for Libya made only a short reference to Article 3, commenting
on the Tunisian attitude to the Note of 30 October 1982, where Libya invited
Tunisia to state all the points necessary to refer the matter to the Court.
He said:
"The Libyan request for more complete and precise information was considered
by Libya to be a necessary basis for reference back to the Court. This
request could not reasonably be considered a rejection by Libya of the
provisions of Article 3 of the Special Agreement, regarding going back to
the Court to request explanation and clarification." (Ibid.)
7. Another counsel for Libya, who developed the Libyan thesis on
"L'irrecevabilite des demandes en interpretation et correction d'erreur" did
not touch the subject of want of jurisdiction on the basis of Article 3.
Finally, the last counsel to address the Court merely said, at the beginning
of his intervention, the following:
"Tunisia faces an initial difficulty in its request for interpretation in
that, as Sir Francis Vallat has shown, Article 3 of the Special Agreement
required Tunisia to follow a certain procedure, which she has totally failed
to do. I need add nothing more on that point." (Sitting of 18 June 1985,
morning.)
But, as we know this counsel had not developed this argument.
8. Moreover, the Libyan final submissions reaffirmed the submissions [p 234]
contained in the Observations. No reference, therefore, was made there to
lack of jurisdiction.
9. This final position of Libya was clarified thanks to the question put by
a judge as to the relation of Article 60 and the role of the Parties under
Article 3. Libya replied:
"Tunisia has not made a bona fide attempt to agree on points of explanation
or clarification for the purpose of a joint request to the Court under
Article 3 of the Special Agreement. Such a joint request is a necessary
condition for return to the Court under Article 3. The failure of Tunisia to
attempt to specify the point or points of explanation or clarification for
the purposes of a joint request could well be regarded as debarring
Tunisia's resort to Article 60 of the Statute. Libya, however, has chosen
not to rely on what might be regarded by Tunisia as a purely technical bar
to the present Application. Libya believes that the application is so
lacking in merit that Libya has preferred to oppose it."
10. To the Court it "is by no means clear" that Libya, by this statement,
"intended to waive a jurisdictional objection, based on Article 3" (para.
42, in fine). I dissent on this point. This is for me a clear indication
that Libya is not insisting on the argument of lack of jurisdiction raised
in the Observations. As I said before, Libya did not include this
jurisdictional objection in its submissions. Objections of this nature,
should normally be raised in a formal way, and they are not lightly to be
presumed.
11. Despite this clear statement of intention to waive the objection, the
Court, however, goes into the question of the relationship between the
procedure contemplated by Article 3 of the Special Agreement and the
possibility of either Party to request an interpretation under Article 60 of
the Statute. The Court finds that Article 3 does not impair, in the
circumstances of this case, the right of Tunisia, under Article 60 of the
Statute, to seise the Court unilaterally.
12. I am also of a different opinion on this point, and I regret that I do
not share the Court's findings.
13. My reading of Article 3 of the Special Agreement leads me to the
conclusion that the Parties foresee a special procedure of coming to the
Court, before Article 60 of the Statute could be invoked; it does not seem
to be the intention of the Parties to waive their rights under the Statute,
but to establish a previous procedure for coming to the Court, before they
decide to ask unilaterally for an interpretation. The purpose of Article 3
is to oblige the Parties to make an effort to settle between themselves
which are the points of difference, before coming to the Court; if such an
effort fails, the Parties then could ask unilaterally for an interpretation
under Article 60 of the Statute. Article 3 is not a bar, or a "block" - to
use the Court's terminology -, to the procedure established in Article 60 of
the [p 235] Statute, if one of the Parties chooses not to co-operate: it is
only a procedure that the Parties should try to follow, before coming to the
Court. The mechanism set up by the Parties provides for a serious effort to
reach an agreement, before coming to the Court. My reading of the documents
submitted by Libya, attached to its Observations, leads me to the
conclusion that Tunisia never concretely submitted to Libya what were the
points that it considered needed some explanation or clarification. To my
mind, because of this position of Tunisia, there has never been a serious
effort to try to settle between the Parties what were the points that needed
explanations or clarifications.
14. As to the Tunisian argument based on the overriding character of Article
103 of the Charter, I would like simply to recall that this article refers
only to a conflict of "obligations", not of rights. The subject has been
dealt with in detail by the most distinguished commentators on the Charter.
It would be an interesting juridical exercise to study whether States may
waive their rights under the Statute in a Special Agreement, but this
theoretical problem is not before the Court, because the Parties have
envisaged in their Special Agreement a procedure which requires, first, that
they should try and reach an agreement to seek "explanations and
clarifications" before invoking Article 60, a procedure which, to my mind,
is not against any provision of the Statute.
15. For these reasons, I share the Libyan argument presented in its
Observations, and not the Court's reasoning. I would like to add, returning
to the beginning of this opinion, that this proposition, if formally
submitted, will amount to the submission of an "exception d'incompetence",
a preliminary objection challenging the jurisdiction of the Court. As Libya
said in the Observations: "The Court does not possess jurisdiction to admit
the Tunisian request for interpretation."
16. As I said before, Libya not only did not formally submit this
preliminary objection but specifically waived its right. In these
circumstances, I do not think it is for the Court to go into the analysis of
the arguments related to such objection, when the interested Party has
waived its right to invoke it; this renunciation is tantamount to a very
specific consent, and as consent is the basis of the jurisdiction of this
tribunal, the Court, in such circumstances, could not but take judicial
notice of the waiver.
(Signed) Jose Maria Ruda.
[p236]
Separate opinion of judge Oda
1. I concur in the Judgment's finding in paragraph 69 A that Tunisia's
application for revision relating to the first sector must be declared
inadmissible. Yet, as a dissenting Judge in the original case who in 1982
could not support the delimitation line which the Court had proposed, I feel
bound to explain why in my view also Tunisia's application is not
well-founded. With regard to subparagraphs B and D of the operative part,
concerning Tunisia's requests for interpretation relating to both the first
and second sectors, I hold the view that the requests should have been found
inadmissible for the reasons stated below in paragraphs 11 and 16-18
respectively. However, as the question of admissibility in both cases was
put to the vote together with the contents of the respective requests, and
as I agree at any rate with the findings reached by the Court that the
respective requests cannot be upheld, I have voted in favour.
I. The First Sector of the Suggested Delimitation Line
A. The Court's Account in 1982 of the Concessions previously Granted by the
Parties
2. It has become evident through the present proceedings that in giving
judgment in 1982 the Court had no exact idea of the boundaries of the
concessions granted by the respective Parties prior to the signing of the
Special Agreement. Had this not been so, Tunisia would have had little
ground for submitting its application for revision or its request for
interpretation with regard to the first sector of the suggested
delimitation line. In the present Judgment the Court appears to be reluctant
to recognize this point which, in my view, should have been clearly spelled
out.
3. The boundaries of the respective concessions relevant to our
consideration, which have become thoroughly known only through the present
proceedings, had the following characteristics:
(i) The southeastern boundary of the Tunisian "Permis complementaire
offshore du Golfe de Gab�s" of 21 October 1966, in the form of a zig-zag or
"stepped" line, did not extend eastwards beyond the point 11� 59'53".66 E,
and the southeastern corner of the step furthest from the shoreline was at
33� 50' 17".19 N on this longitude (turning-point No. 5) ; the southeastern
corner of the step nearest to the coastline was at 33� 11'20".89N, 11�
34'53".44 E (turning-point [p 237] No. 41), and the line connecting each of
the southeastern corners of the 17 steps joined by these two extreme points
did not form a single straight line (see No. 9 of the dossier supplied by
Tunisia to the Court during the oral proceedings).
(ii) The northwestern boundary of Libyan concession No. 137 of 30 April 1968
was a line connecting the point 33� 55' N, 12� E, in mid-ocean, with the
point 33� 10' N, 11� 35' E, which lies about one mile to the east of the
land frontier point at Ras Ajdir on the mainland (see Tunisian Application,
Ann. II). In other words the line, if prolonged, would not pass through the
land frontier point but would intersect the coastline at a point east of the
frontier. (The later Libyan concession -NC 76 of 17 February 1979 - did not
alter that boundary.)
(iii) Thus Tunisia's "stepped" line and Libya's straight line clearly did
not match, and in fact some overlapping and conflict occurred in the
concession areas.
4. Notwithstanding these clear facts concerning the boundaries of the
Tunisian and Libyan concessions, of which the Court could and should have
been aware in 1982, the mistaken descriptions (which constituted a cause of
the present case) were incorporated in the operative part concerning the
first sector of the delimitation line in the Court's 1982 Judgment, which
stated:
"the starting point for the line of delimitation is the point where the
outer limit of the territorial sea of the Parties is intersected by a
straight line drawn from the land frontier point of Ras Ajdir through the
point 33� 55' N, 12� E, which line runs at a bearing of approximately 26�
east of north, corresponding to the angle followed by the north-western
boundary of Libyan petroleum concessions numbers NC 76, 137, NC 41 and NC
53, which was aligned on the south-eastern boundary of Tunisian petroleum
concession 'Permis complementaire offshore du Golfe de Gab�s' (21 October
1966) ; from the intersection point so determined, the line of delimitation
between the two continental shelves is to run north-east through the point
33� 55' N, 12� E, thus on that same bearing, to the point..." (I.C.J.
Reports 1982, pp. 93-94, para. 133 C (2), emphasis added).
The mistaken descriptions in the above quotation are underlined. The Court
erred in its belief that the northwestern boundary of the Libyan concession
lay on this bearing of 26� east of north and was aligned on the southeastern
boundary of the Tunisian concession.
5. It is now clear that the bearing of 26� east of north was that of a line
connecting point 33� 55'N, 12� E, to Ras Ajdir, but not to the southwestern
corner of the Libyan concession. Furthermore, in spite of the explanations
given in the present Judgment to the effect that:
"It is evident that the Court did not mean by 'aligned' that the boundaries
of the relevant concessions formed a perfect match in the[p 238] sense that
there was neither any overlap of the concessions nor any sea-bed areas left
open between the two boundaries" (para. 36),
it is more evident from the erroneous descriptions in the reasonings quoted
below that in 1982 the Court suggested the delimitation line on the basis of
its incorrect or inaccurate understanding of the Tunisian and Libyan
concessions and of the relationship between them:
"[In 1974] Libya granted a concession the western boundary of which was
(consistently with a previous concession) a line drawn from Ras Ajdir at
some 26� to the meridian." (I.C.J. Reports 1982, p. 37, para. 21.)
"Ras Ajdir is also the point of departure... of the line of 26� north-east
which had been followed by the two Parties in the granting of concessions
for the exploration and exploitation of mineral resources during the period
1964-1972." (Ibid., p. 66, para. 86.)
"[T]he Court could not fail to note the existence of a de facto line from
Ras Ajdir at an angle of some 26� east of north, which was the result of the
manner in which both Parties initially granted concessions for offshore
exploration and exploitation of oil and gas. This line of adjoining
concessions ... was tacitly respected for a number of years." (Ibid., p. 71,
para. 96.)
"A Tunisian enlarged concession of 21 October 1966 was bounded on the east
by a 'stepped' line (a form apparently dictated by the grid/block system for
grant of concessions) the eastern angles of which lay on a straight line at
a bearing of approximately 26� to the meridian. In 1968 Libya granted a
concession (No. 137) 'lying to the eastward of a line running
south/southwest from the point 33� 55' N, 12� E to a point about one
nautical mile offshore' the angle thereof viewed from Ras Ajdir being 26� ;
the western boundaries of subsequent Libyan concessions followed the same
line, which, Libya has explained, 'followed the direction of the Tunisian
concessions'. The result was the appearance on the map of a de facto line
dividing concession areas which were the subject of active claims, in the
sense that exploration activities were authorized by one Party, without
interference, or (until 1976) protests, by the other." (Ibid., pp. 83-84,
para. 117.)
"a line drawn from the terminal point of the land frontier through the point
33� 55' N, 12� E, thus at an angle to the meridian corresponding to the
angle of the western boundary of Libyan Petroleum Concessions Nos. NC
76,137, NC 41 and NC 53, which was aligned with the eastern points of the
zig-zag south-eastern boundary of the Tunisian concession 'Permis
complementaire offshore du Golfe de Gab�s' (21 October 1966)" (ibid, p. 85,
para. 121).[p 239]
6. First, the Court's incorrect understanding of the Libyan boundaries would
seem to be due to its not possessing precise information respecting the
Libyan concessions. And in fact, during the written and oral proceedings in
the original case, the exact co-ordinates of the Libyan boundaries were not
furnished to the Court. The Court never asked for them, but neither is there
any evidence that Libya deliberately concealed them. Tunisia, for its part,
did not ask the Court to have Libya give details of its concessions, even
during the oral proceedings in the original case. A description of the
co-ordinates of the Libyan 1968 concession has been supplied to the Court
only in the present proceedings (Tunisian Application of 27 July 1984, Ann.
II).
7. Secondly, the inaccurate statements in the 1982 Judgment respecting the
Tunisian concession were due to the fact that, although the details were
imparted to the Court by Tunisia in the original proceedings, the text of
the concession (Tunisian Memorial, Ann. 1) gave these details only in terms
of "numero des rep�res" (reference numbers) of each "sommet"
(traverse-point) of the southeastern boundary; the Court never understood
the Tunisian boundary in terms of exact co-ordinates, and did not attempt to
seek any further clarification of the details of the Tunisian concession.
The exact co-ordinates corresponding to the "rep�res miniers", that is,
"numero des rep�res" in the original text, have been made explicit to the
Court only in the present proceedings (No. 9 of the dossier supplied by
Tunisia to the Court on 13 June 1985 during the oral proceedings). Yet in
1982 the Court was fully aware that the southeastern boundary of the
Tunisian concession was not straight but "stepped", as this clearly emerges
from the statements in its reasoning (see I.C.J. Reports 1982, p. 83, para.
117). This notwithstanding, the Court treated this boundary in the operative
part of the Judgment as if it were a straight line (ibid., p. 93, para. 133
C (2)).
8. Judging by the pleadings and arguments of the original case the simple
fact is that neither of the Parties assumed that the boundary of these
concessions would constitute an important or even relevant factor in the
Court's decision. But it is not crucial whether Tunisia's unawareness of the
precise co-ordinates of the Libyan concession was due to its negligence or
whether Tunisia exercised normal diligence, because the validity of the
respective concessions of the Parties was not at issue. Thus neither Tunisia
nor Libya can fairly be blamed for what now might in retrospect appear to be
omissions. Solely the Court, which in 1982 by its own initiative lent great
significance to the concessions previously granted by the Parties, was at
fault in an omission, namely, of referring to the Tunisian and Libyan
concessions without adequate knowledge and without any verification of their
respective positions. This is an essential point which the Court in the
present Judgment should have more candidly recognized. If the Court rather
than the Parties had been more cautious in 1982, the present case would
probably not have been presented.[p 240]
B. The Immateriality of the Fact "Discovered" to the Court's Selection of
Point 33� 55' N, 12� E
9. Despite this background, the delimitation line for the first sector was
suggested by the Court in the operative part of the 1982 Judgment as follows
(and as already quoted above):
"the starting point for the line of delimitation is the point where the
outer limit of the territorial sea of the Parties is intersected by a
straight line drawn from the land frontier point of Ras Ajdir through the
point 33� 55' N, 12� E which line runs at a bearing of approximately 26�
east of north, corresponding to the angle followed by the northwestern
boundary of Libyan petroleum concessions numbers NC 76, 137, NC 41 and NC
53, which was aligned on the south-eastern boundary of Tunisian petroleum
concession 'Permis complementaire offshore du Golfe de Gab�s' (21 October
1966) ; from the intersection point so determined, the line of delimitation
between the two continental shelves is to run north-east through the point
33� 55' N, 12� E, thus on that same bearing, to the point..." (ibid., p. 93,
para. 133 C (2), emphasis added).
In the above quotation the passages showing what the Court was really
suggesting for the purpose of delimitation have been underlined, i.e., to
join the point 33� 55' N, 12� E, to the land frontier point of Ras Ajdir, as
recognized in the present Judgment (para. 33). The significance of the
co-ordinates 33� 55'N, 12� E, had been made known to the Court by Libya as
those of a point relevant to its own concession. While it did not make clear
all the co-ordinates of its concession, the Libyan Memorial did specify this
particular point in the following passage:
"The area covered by this Concession [No. 137] was 6,846 square kilometres,
lying to the eastward of a line running south/southwest from the point 33�
55' N, 12� E to a point about one nautical mile offshore. The point of
origin viewed from Ras Ajdir is at an angle of 26 degrees." (Para. 36.)
It should, however, also be noted (though it is overlooked by the Court also
in the present Judgment) that the co-ordinates of 33� 55' N, 12� E, as the
1982 Judgment proposed, were those which had been one-sidedly borrowed from
the Libyan, but not from the Tunisian concession in spite of repeated
references to "alignment" of the two in the original and the present
Judgment.
10. Why did the Court opt for the point 33� 55' N, 12� E, which was on the
boundary line of the Libyan concession but had no significance so far as the
Tunisian boundaries were concerned? Why did the Court not choose some point
indicated by Tunisia as one of the relevant points in its own concession ?
Or, more fundamentally, why, even if the two concessions could once � more
than ten years ago � have been "aligned" as interpreted in the present
Judgment (para. 36), did the Court find this fact to be a [p 241] decisive
factor in establishing the delimitation? The Court in 1982 did not provide
any clear answers to these questions. Yet these decisions of the Court are
not of a nature to be affected by "the discovery of some fact of such a
nature as to be a decisive factor". The 1982 Judgment may well be open to
criticism, and I may add that I found matters very difficult, being aware
that the Court had decided on the line of the first sector without adequate
grounds. But however forcefully that Judgment may be criticized, the cause
and motive underlying the Court's Judgment, which is final, are not matters
subject to revision under Article 61 of the Statute. In other words, if any
case could be made for contemplating a revision of the 1982 Judgment, it
would rather be on the basis of a criticism of its reasoning than on that
of any "facts" newly drawn to the Court's attention. However, the Statute
makes no provision for revising a Judgment of the Court on such grounds.
C. Clarity in the Meaning and Scope of the Judgment in the Selection of Two
Unequivocal Points
11. As properly stated in the present Judgment, "[the 1982] Judgment laid
down a single precise criterion for the drawing of the line, namely that it
is to be a straight line drawn through two specifically defined points"
(para. 50). The wording of the operative part of the 1982 Judgment may well
be criticized in places for having caused confusion through incorporating
some redundant and not wholly accurate explanations. Yet there cannot be any
ambiguity in the drawing of a straight line connecting these two unequivocal
points, that is, the land frontier at Ras Ajdir and the mid-ocean point 33�
55' N, 12� E. In its present submissions, Tunisia, relying on the
co-ordinates 33� 50' 17" N, 11� 59' 53" E, of a point on its own 1966
concession boundary, has proposed new methods which are entirely different
from what the Court had in mind, and has thus made its request for
interpretation of the 1982 Judgment in fact a plea for revision of the
Judgment.
II. The second sector of the suggested delimitation line
A. The Court's Reference in 1982 to "the Most Westerly Point" of the
Tunisian Coast for the Location of the Veering-Point of the Delimitation
Line
12. The Court considered in 1982 that the delimitation line drawn from the
land frontier point of Ras Ajdir through the point 33� 55' N, 12� E, must
veer at a certain point because of the general shape of the Gulf of Gabes.
In this connection, the Court took it as legally significant that:
"While the initial part of the Tunisian coast, westwards from Ras Ajdir,
runs for some distance in approximately the same direction as [p 242] the
Libyan coast, the most marked characteristic of the coast... is that it
subsequently changes direction, so as to run roughly southwest-northeast ...
The change in direction may be said to modify the situation of lateral
adjacency of the two States, even though it clearly does not go so far as to
place them in a position of legally opposite States." (I.C.J. Reports 1982,
p. 63, para. 78.)
The Court also stated that "[t]he change in direction of the coast is... a
fact which must be taken into account" (ibid, p. 87, para. 124). Well might
this assertion have been correct. Yet I could not see why the Court
suggested in 1982 that the veering-point of the delimitation line should be
on the same latitude as the turning-point of the Gulf's coast. A latitude is
simply a plane of the earth's rotation and, from the viewpoint of
cartography, merely offers a convenient artifice for drawing a map.
Assuming, however, that the configuration as such is what really counts, and
that one were accordingly to examine a relief map of the region without
paying any attention to lines of latitude or longitude or to the
conventional "set" of a map, no logical indication could be found for the
Court's choosing the veering-point of the delimitation line, in association
with the point where the Gulf's coast changes direction, in terms of their
location on the same latitude (see my dissenting opinion in the original
case (ibid., p. 268)).
13. The 1982 Judgment picked "an appropriate point on the coast to be
employed as a reference-point for reflecting [the] change in the
delimitation" in stating that "the Court considers that an appropriate
point on the coast... is the most westerly point of the Tunisian coastline
..." (ibid., p. 87, para. 124). Even if the connection of the veering-point
of the delimitation line with the turning-point of the coast by their
respective locations on the same latitude had been underlain by sound
reasoning (which I doubt, as I stated in the preceding paragraph), there
would not have been any legal ground for suggesting that the "change in
direction" of the coast of the Gulf of Gabes must necessarily occur at the
most westerly point of the Gulf. It would in fact have been difficult to
locate the turning-point in the general direction of the coast, particularly
in a geographical situation such as the Gulf of Gabes, where the coast
curves gradually half-way round without showing any distinct
characteristics. It seems to me that any point roughly between 33� 55' N and
34� 20' N could have been designated as the turning-point in the general
direction of the coast, greatly depending on one's view of the general
configurations of the neighbouring coastlines. It could not in principle
have been of any significance whether this turning-point should or should
not be located at the most westerly point of the Gulf.
14. At any rate, how and where the general direction changes is not open to
precise determination, as the Court properly stated in 1982:
"The Court does not consider that [the question of the point at [p 243]
which the change in direction of the Tunisian coastline may properly be said
to occur] is a question it is called upon to decide; the examination of the
matter by the Parties seems to the Court rather to demonstrate that the
point... cannot be objectively determined as a matter of fact." (I.C.J.
Reports 1982, p. 87, para. 123.)
The Court, "discharging] its duty to indicate the practical method of
delimitation in such a way as to enable the experts to effect the
delimitation 'without any difficulties'", chose this particular point on the
Tunisian coastline as "an appropriate point" "which has the advantage of
being susceptible of objective determination as a matter of geography"
(ibid., paras. 123-124). The simple fact is that, in choosing what it
believed to be the most accurately determinable feature of the coast as the
practical turning-point for the general direction, the Court in 1982 hit
upon "a small nick" on a small-scale map, or according to Tunisia the mouth
of a wadi, near latitude 34� 10' 30" N. How fortunate it was for the Court
that the line drawn from that point to the Kerkennah Islands ran "along the
seaward coast of the actual islands" (see ibid., p. 89, para. 128)! To
define this particular point which must be "susceptible of objective
determination as a matter of geography", the Court found, as another happy
coincidence, that in its own interpretation it could be "the most westerly
point" of the Gulf of Gabes. Defining this particular turning-point of the
coastline as "the most westerly point", the Court did not mention the
possible relevance of whether this would be on a baseline in terms of the
1958 Convention on the Territorial Sea and the Contiguous Zone or the 1982
United Nations Convention on the Law of the Sea. Although that particular
point, which happened to be "the most westerly point" of the Gulf in the
Court's interpretation of these words, was chosen empirically within a range
of physical possibilities and not necessarily based on legal grounds, there
cannot be any room for further interpretation of that Court's decision. How
"the most westerly point" may otherwise be interpreted by either lawyers or
geographers becomes irrelevant for this reason.
15. The precise location near latitude 34� 10' 30" N of what the Court
picked upon as decisive, inasmuch as a turning-point in the general
direction of the coast, and what Tunisia calls a "wadi" could be fixed by
the experts, as the 1982 Judgment proposed, but the function of the experts
of both Parties would be limited to finding the exact latitude of that point
on an authoritative map to the degree of some seconds (one second is roughly
30 metres and so tiny a margin should not materially affect the angulation
between the general direction of the coastline and the line drawn to and
along the eastern shore of the Kerkennahs); it could not be extended to
finding what else they might interpret in legal or topographical terms to be
"the most westerly point of the Tunisian coastline ..., that is to say, the
most westerly point on the shoreline (low-water mark) of the Gulf of Gabes",
or "the most westerly point of the Gulf of Gabes".[p 244]
B. Clear Designation by the Court of a Turning-point on the Coast
16. A problem has been raised by Tunisia in connection with the second
sector of the delimitation line, inasmuch as the Court suggested in the
operative part of the 1982 Judgment that
"the line of delimitation [of the first sector]... is to run north-east
through the point 33� 55' N, 12� E. .. to 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" (I.C.J. Reports
1982, pp. 93-94, para. 133 C (2)),
and that
"in the second sector, namely in the area which extends seawards beyond the
parallel of the most westerly point of the Gulf of Gabes, the line of
delimitation... is to veer to the east..." (ibid., p. 94, para. 133 C (3)),
while it had stated in its reasoning that
"it appears to the Court that [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] will
be approximately 34� 10' 30" north" (ibid, p. 87, para. 124).
Tunisia has submitted its request for interpretation because, in its view, a
westward indentation at the approximate latitude of 34� 10' 30" N does not
lie on "the shoreline (low-water mark)" of the Gulf of Gabes, but merely in
the mouth of a wadi, and the actual most westerly point on the shoreline
(low-water mark) of the Gulf of Gabes must lie on latitude 34� 05' 20" N
(Carthage), which is well to the south of this wadi.
17. The ostensible problem raised by Tunisia is to reconcile that "wadi", as
constituting "the most westerly point of the Tunisian coastline between Ras
Kaboudia and Ras Ajdir", with the expression by which the Court specifies
its meaning: "that is to say, the most westerly point on the shoreline
(low-water mark) of the Gulf of Gabes". I call it an ostensible problem,
because, as I stated above, it was quite irrelevant in the Court's
considerations how a wadi should be regarded in terms of a baseline under
the 1958 Geneva Convention or the 1982 Montego Bay Convention. It is an
undeniable fact also for Tunisia that the mouth of a wadi constitutes part
of the "Tunisian coastline" or "the shoreline (low-water mark) of the Gulf
of Gabes" in a topographical sense; Tunisia does not seem to deny that a
significant feature, capable of serving as a turning-point, is located near
latitude 34� 10' 30" N.
18. In spite of the phraseology of its request in relation to the second [p
245] sector, Tunisia, being aware that the Court has chosen that particular
point on the coast near 34� 10' 30" N, seems in fact to be seeking a
statement from the Court that the Judgment was erroneous because, in
principle, a wadi is not located on the baseline in terms of the relevant
provisions of either the 1958 Geneva Convention or the 1982 Montego Bay
Convention, and that therefore this wadi should not be treated as
constituting the most westerly point of the Gulf of Gabes. The Judgment may
arguably not have been drafted in an unequivocal manner so as to avoid any
misinterpreta-tion. However, what Tunisia is in fact seeking appears to me
to be quite different from what a Party may request by way of the
interpretation of a judgment. Tunisia is not seeking interpretation of the
Judgment, but is attempting to replace the concrete indication given by the
Judgment by its own interpretation as to the location of the most westerly
point of the Gulf of Gabes at 34� 05' 20" N, on the ground that the
reasoning which led the Court to suggest latitude 34� 10' 30" N as a
reference for the veering of the delimitation line in the second sector was
not quite appropriate.
**
19. In sum, the Court in 1982 made a firm suggestion for a practical method
of defining the line of delimitation, though I personally could not support
it. First, the determination by the Court in the first sector of the
delimitation was not of a nature to be so affected by any newly discovered
fact as to cause the Court to reconsider it. Secondly, though the Court's
description of the suggested delimitation line in its first and second
sectors may not, on its face, be so uncomplicated as to need no
interpretation, the Court's intention was clear; it appears to me that
Tunisia's requests for interpretation of the Judgment are simply disguised
requests for revision.
(Signed) Shigeru Oda.
[p 246]
Separate opinion of judge Schwebel
While I am largely in accord with the Judgment, there are aspects of its
reasoning with which I do not agree. I have particular reservations about
the Court's treatment of the question of whether, in 1982, it appreciated
that the petroleum concessions of Tunisia and Libya overlapped. When the
Court in 1982 declared that "the phenomenon of actual overlapping of claims
did not appear until 1974, and then only in respect of areas some 50 miles
from the coast" � and specified that this was "the actual situation" �
(para. 117), the Court clearly acted on the understanding that, before 1974,
and within 50 miles of the coast, the concessions which had been granted by
Tunisia and by Libya did not overlap. If the Court in 1982 really understood
that there was a measure of overlapping before 1974 within 50 miles of the
coast, but nevertheless cast its Judgment in the terms in which it is cast,
those terms are inexplicable.
Whatever may have been the understanding of one or more judges, and whatever
exiguous indications the record of the pleadings may reveal of overlap, it
is clear to me, from the language of the Judgment quoted above, that the
Court as a whole when it adopted its 1982 Judgment was under the impression
that there was no "actual overlapping" at the time and in the zone
specified. In its Application for Revision and Interpretation, Tunisia has
demonstrated the error of that impression. Nevertheless, I agree with the
Court in its holding that the request for revision is inadmissible, because
that error is not of such a nature as to be a decisive factor. Had the Court
been actively aware of the minor measure of overlapping which obtained, that
would not have changed the decision of the Court on the first sector of the
delimitation line.
(Signed) Stephen M. Schwebel.
[p 247]
Separate opinion of judge Bastid
[Translation]
I
1. Approval must be given to the finding of inadmissibility reached in
respect of the request submitted by the Republic of Tunisia, under Article
61 of the Statute of the Court, for the revision of the Judgment given by
the Court on 24 February 1982.
This decision is based upon lengthy considerations (paras. 28 ff.).
Furthermore, as regards the subsidiary request for interpretation, the
Court has at certain points referred back to the reasoning concerning
revision (paras. 29 ff., 41, 45, 50 and 56). Certain observations are called
for as regards not only the Court's findings on the inadmissibility of the
request for revision but also the rejection of the subsidiary request for
interpretation and that of the request for the correction of an error.
2. There is a clear distinction to be made as between revision and
interpretation in respect of the circumstances in which the Court may in
accordance with the Statute be induced to reconsider res judicata. Since the
inception of the Court, requests for interpretation have given rise to a
practice enabling one to discern the requisite conditions and the
repercussions on the text to be construed. On the other hand, no request
for revision had ever been submitted until the Application of 27 July 1984.
Whether in certain circumstances this form of challenge to res judicata had
ever been contemplated, and why, if it was, the idea was eventually dropped,
remain unknown.
The Statute of the Court, while laying down the conditions of admissibility
of an application for revision, is silent as to the effects of that
application if deemed admissible. What would it imply to reopen the merits
of a case, and to what extent should the case as a whole be reviewed? Such a
situation would call for an examination of the very concept of revision in
the light of any existing practice of international tribunals and the, at
times, conflicting practice of the various municipal judiciaries. But this
question would not arise until after the delivery of a judgment declaring
an application admissible.
Considering the difficulty of the problems to which I have just alluded, it
will be realized that the conditions of admissibility are very important and
deserve particular scrutiny. The Rules of Court of 14 April 1978 set forth
the procedural requirements corresponding to the conditions the terms of
which, embodied in Article 61 of the Statute, are the same as have existed
ever since the Statute of the Permanent Court was drawn up.
3. Given the gravity of an application for revision, from the viewpoint[p
248] of the importance of its consequences, and having regard to the caution
exercised by international courts in the light of the parties' situation as
sovereign States, it appears essential at the outset to make sure whether it
satisfies each of the conditions in question. Should any one of them not be
fulfilled, the application will be inadmissible, whatever conclusion may be
reached in regard to the others.
Strictness in weighing the question of admissibility is vital, otherwise,
under colour of an application for revision, the Court might in fact find
itself induced to rule upon considerations that would have belonged to the
merits and on modifications of res judicata that might have been envisaged
at that stage.
4. In the present case, the importance of the foregoing is evident not so
much from the final rejection of admissibility as from the care taken to
accumulate the various grounds of rejection on the basis of the
requirements laid down in Article 61, and from the link with the subsidiary
request for interpretation. It is to be feared that in future there may be
an increasing number of applications for revision, whether alone or in
conjunction with requests for interpretation, and that they may provide an
opportunity for detailed commentaries, which may or may not be com-plicated
by intervening changes in the composition of the Court called upon to
pronounce on the revision.
5. That said, attention may be drawn to what was decisive, having regard to
the terms of the Statute and of the Rules of Court. The submissions of
Tunisia on 14 June 1985 refer to "a new fact of such a character as to lay
the Judgment open to revision within the meaning of Article 61 of the
Statute of the Court". The new fact (the text of the resolution of 28 March
1968 of the Libyan Council of Ministers) is set forth in the Application, in
paragraph 50. In paragraph 51 the Application asserts that the new fact was
of such a nature as to be a decisive factor in the decision of the Court.
Each of these paragraphs contains a complex commentary on these points. But
the text of the resolution of the Libyan Council of Ministers, mentioned in
paragraph 50, is not itself made the subject of any clarification.
The provisions of Article 99, paragraph 1, of the Rules of Court should be
carefully examined so as to ascertain whether the application satisfies the
requisite conditions. The report of the independent expert appointed by
Tunisia is not presented as a new fact, whatever arguments may have been
drawn from it. If one reaches the conclusion that the application for
revision does not directly invoke any new fact which is clearly relevant as
such, there is no need to go any farther and the application must be
dismissed. Any further considerations would lead to an examination of the
merits of the application for revision.
6. Irrespective of the actual wording of the resolution of the Council of
Ministers, the real "new fact" relied upon by Tunisia is to be found in
Annex II to the Application under the title "Description of Concession No.
137 as defined in the Resolution of the Council of Ministers of 28 March
1968". Libya has not disputed this description. [p 249]
The Parties argued at length as to whether Libya ought spontaneously to have
supplied Tunisia with this description, or whether Tunisia could have
obtained it without difficulty. There is no point in going into the details
of this controversy, which rather concerns another condition laid down by
Article 61, for there can be no doubt that Tunisia could have had some
general idea of the Libyan concession, even if most of the co-ordinates were
drawn to its attention only at the moment when the report of the expert it
had appointed came into its possession. On the other hand, so far as the
perimeter of the western part of the concession is concerned, it has to be
noted that the document presented as a "new fact" does not reveal any fact
of such a nature as to constitute a decisive factor. According to this
document, the concession is defined as "starting at the intersection of 12�
00' longitude and 33� 55' latitude" and finishing at "33� 10' latitude [and]
11� 35' longitude", "thence northeastward in a straight line till the point
of origin". But the Judgment of 1982, quoting paragraph 36 of the Libyan
Memorial, does in fact state (in para. 117) that in 1968:
"Libya granted a concession (No. 137) 'lying to the eastward of a line
running south/southwest from the point 33� 55'N,12� E to a point about one
nautical mile offshore' the angle thereof viewed from Ras Ajdir being 26�;
the western boundaries of subsequent Libyan concessions followed the same
line, which, Libya has explained, 'fol-lowed the direction of the Tunisian
concessions'."
True, no co-ordinates are given for the offshore point, but all that the new
document contributes is in fact that element, and so it is very much open to
question whether knowledge of it could have constituted a decisive factor
within the meaning of Article 61 of the Statute.
If the relationship with the Tunisian concession was erroneously presented
in the passage of the Libyan Memorial quoted by the Court, that was due to
the absence of any precise outline of that concession. Admittedly, the
co-ordinates of the stepped line had been indicated (Tunisian Me-morial,
Ann. 1; Tunisian Reply, Ann. 4; decree of 1 January 1953, document
deposited with Tunisian Reply on 15 July 1981, table referred to in Art. 37;
cf. document No. 9 produced at the sitting of 13 June 1985). But it was only
in the plates prepared in 1984 by the Tunisian expert that the respective
positions of the concessions could be more clearly observed. For the rest,
the description of Concession No. 137 did not constitute a fact of such a
nature as to warrant the admission of the application for revision.
It is therefore apparent that the finding of non-admissibility of that
application could legitimately have been based upon the absence of a new
fact, without any consideration of the other elements stipulated by Article
61 of the Statute of the Court in relation to the admissibility of an
application for revision.[p 250]
II
7. As for the subsidiary request for interpretation, the Judgment has
pronounced upon the Libyan contention that an objection to jurisdiction can
be derived from Article 3 of the Special Agreement. That Article provides
for the possibility of both Parties returning to the Court together in order
to "request any explanations or clarifications which would facilitate the
task of the two delegations to arrive at the line separating the two areas",
while the Parties undertake to comply with the Judgment of the Court and
with "its explanations and clarifications". The role conferred on the Court
is very specific ; account is taken of the fact that its task is to define
the "principles and rules of international law" and then to clarify the
practical method for the application of these principles and rules (Special
Agreement, Art. 1). The terms used by Article 3 of the Special Agreement
have no definite legal scope, but, considering that very specific role, what
they obviously contemplate, for practical purposes, is assistance from the
Court in solving difficulties of application.
In contrast, it is in "the event of dispute as to the meaning and scope of
the judgment" that the Court may be called upon to construe it, according to
Article 60 of the Statute and Articles 98 ff. of the Rules of Court. This
procedure must end in the delivery of a judgment.
The request for interpretation submitted by the Republic of Tunisia under
Article 60 of the Statute must be regarded as admissible so far as the first
sector is concerned. The Court's dismissive findings regarding the
substantive meaning to be given to the interpretation are likewise to be
accepted. However its grounds therefor cannot be based on a link with the
application for revision (para. 29), and the "subsidiary" interpretation
cannot be understood according to paragraphs 32-39 of the present Judgment.
8. The problem of interpretation must be examined in direct relation to the
precise request bearing upon the terms of part of the operative provisions
of the 1982 Judgment, namely paragraph 133 C (2):
"a bearing of approximately 26� east of north, corresponding to the angle
followed by the north-western boundary of Libyan petroleum concessions
numbers NC 76, 137, NC41 and NC 53 which was aligned on the south-eastern
boundary of Tunisian petroleum con-cession 'Permis complementaire offshore
du Golfe de Gab�s' (21 October 1966)".
This follows the indications given as regards the delimitation line, this
being a straight line passing through two defined points. In its
Application, Tunisia seeks
"to obtain some clarifications, notably as regards the hierarchy to be
established between the criteria adopted by the Court, having regard to the
impossibility of simultaneously applying these criteria to deter- [p 251]
mine the starting-point of the delimitation line as well as the bearing of
that line from due north" (para. 55).
The Tunisian request seeks to reconcile the drawing of a given line and its
reference to the alignment between the Libyan and Tunisian concessions. It
winds up with an interpretation which in fact constitutes a new text,
conveyed in its submissions of 14 June 1985, the only logical place for
which would be in submissions on the merits of a claim for revision.
Limited to interpretation, the problem is to ascertain the meaning of the
reference to the north-western boundary of the Libyan concessions "which was
aligned on the south-eastern boundary of [the] Tunisian petroleum
concession", and the logic of this wording in the operative provisions of
the 1982 Judgment.
9. By "aligned" the drafters of that Judgment presumably understood the
situation of which they in fact had knowledge, i.e., "approximately aligned"
on the south-eastern boundary of the Tunisian permit and the north-western
boundary of the Libyan concessions.
The boundaries of the concessions, as outlined in the reasoning of the 1982
Judgment, do not indicate an "alignment" in the proper sense of the term,
i.e., an "identity of line". However, the Court doubtless considered that it
would be useful to refer in subparagraph 133 C (2) to the concrete practice
of the Parties in the matter of concessions, for in subparagraphs 133 A and
B it had not referred to it except - see 133 B (4) - in conjunction with
other factors (the perpendicular to the coast and the de facto maritime
boundary). It is understandable that in regard to the prac-tical method for
applying the principles and rules of international law the Court, given the
specific circumstances of the case, should where the first sector was
concerned have found it necessary to mention, without going into detail, the
relationship between the Libyan concessions and the Tunisian permit.
The attention of the Parties was bound to be drawn by the last-mentioned
lines of the operative provisions, for they expressly mention the petroleum
concessions the "great relevance" of which had been stressed by the Court
(para. 118). The operative provisions expressly refer again to those the
Judgment had already mentioned (para. 117).
But it is the bearing of "approximately" 26� that is associated with the
angle of the north-western boundary of the Libyan concessions, which is
aligned on the south-eastern boundary of the Tunisian permit. The operative
part here makes use of the terms of paragraph 121, where the fol-lowing
reservation also appears : "On the information available to the Court, that
angle appears to be 26� ; it will, however, be for the experts of the
Parties to determine it with exactness."
Clearly the Court was justified in recalling in the operative part the
consideration which had been uppermost in its reasoning, without seeking to
introduce a hierarchy of criteria. It was out of the question to alter the
operative provisions in respect of the starting-point of the delimitation
line under colour of an interpretation.[p 252]
III
10. It must unreservedly be accepted that, as regards "the most westerly
point of the Gulf of Gabes", the request for interpretation submitted by the
Republic of Tunisia under Article 60 of the Statute of the Court is
admissible.
By way of construing the Judgment of 24 February 1982, it is right to stress
the importance of the words in paragraph 124, "approximately 34� 10' 30" N",
as well as of the role devolving upon the experts of the Parties. It must
also be accepted that the submission whereby the Republic of Tunisia would
have the most westerly point of the Gulf of Gabes fixed on the latitude of
34� 05' 20" N (Carthage) cannot be upheld. The submission, presented at the
hearing by the Republic of Tunisia, to the effect that there is cause for
the Court to order an expert survey with a view to determining the precise
co-ordinates of this point, must be rejected. However, it would in my
opinion have been useful to specify the legal significance of the formula
"shoreline (low-water mark)" which appears in paragraph 124 and operative
paragraph 133 C (2) of the 1982 Judgment. The description of the task of the
Parties' experts should have included a definition of that expression.
Paragraph 63 of the present Judgment could therefore have been drafted as
follows:
"To sum up, the task of the experts of the Parties is, so far as regards the
determination of the latitude at which the bearing of the delimitation line
is to change, as follows. That latitude is, as made clear in the 1982
Judgment, to be that of the most westerly point of the shoreline (low-water
mark) of the Gulf of Gabes. It has however also to be borne in mind, first,
that the working definition of the latitude in question, though stated
'approximately', was the basis for the effect given to the Kerkennah Islands
in paragraph 133 C (3) of the Judgment; and, second, that the low-water
mark is normally to be under-stood as the line of low tide 'along the coast
as marked on large-scale charts officially recognized by the coastal State'
(Convention on the Territorial Sea and the Contiguous Zone of 29 April 1958,
Art. 3; Montego Bay Convention, Art. 5). Employing for the purpose whatever
charts and maps they may consider appropriate, the experts should therefore
seek to define, on the low-water mark the most westerly point of the Gulf of
Gabes."
11. Subject to the above observations concerning the method followed by the
Court in considering the Application of the Republic of Tunisia, and, while
regretting that the operative provisions, after finding admissible the
request for interpretation in regard to the first sector, should in
subparagraph B (2) have made reference, "by way of interpretation", to
paragraphs 32-39 of the present Judgment, I concur in the findings of the
Court.
(Signed) Suzanne Bastid.
|
|
