COUNTER-MEMORIAL OF THE LIBYAN ARAB JAMAHIRIYA CONTRE-MÉMOIRE DE LA JAMAHIRIYA ARABE LIBYENNE VOLUME 1 INTRODUCTION 1. This Counter-Mernorial is filed in accordance with Article 4 of the Special Agreement signed by the Socialist People's Libyan Arab Jainahiriya ("Libya") and the Republic of Tunisia ("Tunisia") on 10 June 1977 in Tunis (the "Special Agreement1") and the Order made by the President of the Court in the present case on 3 June 1980 fixing 2 February 1981 as the time-limit for the filing of a Counter-Memorial by Libya'. The English translation of the Special Agreement prepared by Libya frorn the original Arabic tex1 is set out at pages 2 and 3 of the Libyan Memorial filed on 30 May 1980 in the present proceedings (the "Libyan Memorial"). 2. The purpase of this Counter-Mernorial is to reply to the contentions made in the Tunisian Memorial filed on 30 May 1980 in the present proceedings (the "Tunisian Memoria13") and, as may be necessary, to supplement the cons ide ration^ of fact and law set forth in the Libyan Memorial. SECTION 1. General Assessrnent of the Tunisian Case as Now Presented 3. The Tunisian Mernorial is written in a most elegant style, and with seductive subtlety. Yet, on even a superficial examination, the lack of real substance and pertinence becomes apparent. The slanted account of "The Genesis of the Dispute" in Part 1, Chapter 1 of the Tunisian Memorial is largely based on the unjustified assumption that Tunisia's claims were well-founded while those of Libya were not. Comments criticizing the behavior of the Libyan authorities, such as those made by the authors of the Tunisian Memorial in Chaptet 1, contribute nothing to the solution of the problem of the delimitation of the areas of continental shelf which appertain to each of the two Parties or to the fulfillment of the task concerning delimitation jointly submitted by them to the Court! As ' Hy Ictrer daied 14 Fcb. 1979. thc Secrctary of Foreign Affairs of Libya transmitted a copy of ihc Spccial Agreement in Arabie. togethcr with a translation in English certified as accuraic, to ihr Regisirar. Copics of that letter as weli as thc original Arabic trxt and English translation of ihc Spccial Agrecmcnt were previously filcd with thc Couri as Annex 1-1 to ihe Lihyun Mrnioriril. 'Thc tcrm "Libyo" rcfcr?; to thc Statc of Libya and its goverriment. whatever the forrn of govcrnmcnt at ihc rclevant tirnc. and. as may appcar from the coniext, also to the territory uhich now bclongs io the Socialist Pcoplc's Libyün Arab Jamahiriya. ' Rcfcrcnccs in this Countcr-Mcmoriai IO the Tunisian Mt.niorial rcfer io the oficial English ~ranslaiionof that Mçmoriiil. cxccpt for rcferenccs to niaps and tigurcs and quotations ûî pasbngcs in Frcnch, which arc to the original Frcnch text or thc Tunisian Mrniorial. 'Thih attitude is in rnarkcd conirast IO thai expresscd by thc Tunisian Prime Minisier in a spccch to thc Tunisian press on 29 Dec. 1980 whcre "cooperation" and the concept of joint cxploiiation or mincrül rcxciurces wcre rÿised. A copy of !hi, speech is aitached as Annex 1, Vul. II. 148 CONTINENTAL SHELF Pl indicated in paragraphs 38 to 43 of its Memorial, the purpose of Libya in its discussions with Tunisia was to agree on provisions for joint exploita- tion in the context of the development of close economic and political cooperation between the two countries. It-was Tunisia which from 1968 onwards was trying to insist on delimitation on the basis of what was repeatedly described in terms such as "international law and custom" and the internationally recognized "geographical facts and ...economic interests'". 4. These words are quoted from paragraph 13 of the English transla- tion of the Tunisian position with respect to the "problem with Libya over the Continental Shelf ", as stated in a Memorandum circulated on or about 18 May 1976 to diplomatic missions accredited to Tunisia (other than the Libyan Mission in Tunis) and to various international organiza- tions, including the Secretary-General of the United Nations2. The text corresponds to that set out in Annex 34 to the Tunisian Memorial. According to paragraph 1.25 of that Memorial, the Memorandum was circulated on 3 May 1976 under the title "Memorandurn on the Delimita- tion of the Continental Shelf between Tunisia and Libya". Whatever the precise date of circulation may have been, the Memorandum can only be regarded as an official statement of the legal position of the Tunisian Government at the time when it was issued. Put briefly, the Tunisian position was delimitation on the basis of the 50 metre isobath and the application of strict equidistance beyond that isobath. This position is made clear by paragraph 13 of the Memorandurn which reads as follows: " 13. An examination of maps reveals that the general configura- tion of the Tunisian and Libyan coastlines is simple and does not create any dificulty in respect of the application of the standards and rules of international law and custom. Thus the delirnitation of the continental shelf between Tunisia and Libya beyond the 50 metre isobath should be in conformity with an equidistance line drawn in accordance with international law, taking into account the geographical facts and the zones of economic interests, the long-standing exercise of which stands proof of their reality and importance3." ' This theme. which was constantly used by Tunisian spokesmen, ran like a thread through the discussions and was used as a formula in support of the Tunisian claim to delimitation on the basis of a strici equidistance line. Examples rnay be found in paras. 1.16 and 1.2 1 of the Tunision Memorial and even in the last paragraph of Art. 1 of the Tunisian Ministtrial Decree of 18 Mar. 1976 for which the French translation is given in Annex 3 to the Tunision Memorial. There is no reference to any claimed territorial sea or fishing zone boundary. ' See Libyan Memorial, para. 41. ' Ibid. See Tunirian Memorial, Annex 34 for a French translation of this.Mernorandum. The text is given here for convenience of referencc. "1 3. L'examen des cartes montre que la configuration générale des côtes tunisiennes et libyennes est simple et ne présente aucune'difficulté quant à l'application des critères et règles du droit et des usages internaiionaux. En conséquence, la délimita- .lion du plateau continental entre la Tunisie et la Libye, au-delà de l'isobathe des 50 mètres. doit être constituée par la ligne d'équidistance tracée, conformément au droit international, compte tenu des données géographiques et des zones d'intérêts économiques dont la réalité et l'importance sont attestées par un long usage." Pl COUNTER-MEMORIAL OF LIBYA 149 5. It is remarkable that without any explanation or excuse Tunisia has discarded the position both of fact and of law taken in the Memorandum of May 1976 (which was constantly relied upon by Tunisia as a basis for allegations of illegality on the part of Libya). The position of fact taken by Tunisia was that "the general configuration of the Tunisian and Libyan coastlines is simple'". As regards Tunisia, this position has been reversed in the Tunisian Memorial which seeks to rely on the complexity of the Tunisian coast2. Even more remarkable is the abandonment by Tunisia of the equidistance method of delimitation which is apparently rejected in Chapter VII, Section III of its Memorial and finds no place in the Tunisian subrnissions, in spite of the prominence given to equidistance in paragraphs 12 and 13 of the May 1976 Memorandum. Of course, the Government of Tunisia is fully entitled to abandon a position previously taken but, when this position has been taken so constantly and has been advertised 10 the world by diplornatic action as the legally well-founded view of the Tunisian Governrnent, it must throw some doubt on the validity of the new case put forward for the first time in the Tunisian Memorial. Nevertheless, it has the great advantage of simplifying the issues for the purposes of the present proceedings because it is now common ground that the Tunisian coastline as cornpared with that of Libya is complex and that the equidistance method of delimitation is not applicable in .this case. This result accords with Subrnissions 6 to 10 in the Libyan Memorial (corresponding with Submissions 13, 10, 133, 9, and 14, respectively, in this Counter-Mernorial). In particular, it coincides with Submission 10 which, it may be respectfully recalled, invites the Court to adjudge and declare: "In the present case, given the particular geographical configura- tion, the equidistance method would result in a delimitation of the continental shelf which would be inequitable, inappropriate, and not in conformity with international law." 6. In a forma1 sense the Parties are also in agreement that the conti- nental shelf of a State is the natural prolongation of its land territory into and under the sea and that any delimitation should leave as much as possible to each Party al1 those parts of the continental shelf that consti- tute such a natural prolongation4. However, this apparent similarity in the meaning attributed by each of the two Parties to the concept of the ' See. e.g.. para. 13 of the Memorandum of May 1976. 'See, e.g., Tunisian Memorial, para. 3.14 and Submission 1.4.(d). ' Submissions 6 and 8 in the Libyan Mernorial have been combined in Submission 13 in this Counter-Mernorial. ' See Libyan Mernorial, Subrnissions I and 2, which are substantially identical to Submis- sionç 1 and 8 in this Counter-Mernorial, and Tunisian Mernorial. Submission 1.1.