MEMORIAL OF THE LIBYAN ARAB JAMAHIRIYA MÉMOIRE DE LA JAMAHIRIYA ARABE LIBYENNE INTRODUCTION 1. ~hisMernorial is filed in accordance with the Order made by the Vice-President of the Court in the present case on 20 February 1979 fixing 30 May 1980 as the time-limit for the filing of Mernorials by the Republic of Tunisia (hereinafter referred to as "Tunisia") and the Socialist People's Libyan Arab Jarnahiriya (hereinafter referred to as "Libya")'. The Order was made having regard to Article 48 of the Statute of the Court and the relevant Articles of the RuIes of Court and taking into account the Special Agreement between Tunisia and Libya signed at Tunis on 10 June 1977 by which the Parties agreed to have recourse to the Court concerning the question of delimitation of the areas of the continental shelf appertain- ing to the two States. 2. The Special Agreement was signed on 1 O June 1977 and instruments of ratification were exchanged in Tripoli on 27 February 1978. It was ootitied to the Court, in accordance with Article 5 of the Speciai Agree- ment. by letter dated 25 Novernber 1978 from the Minister of Foreign Amairs of Tunisia which was filed in the Registry of the Court on 1 December 1978. That letter also transmitted a copy of the Special Agree- ment in the Arabic language together with a translation into French. On 2 December 1978, Libya received a telegrarn from the Registrar of the Court informing it of the notification of the Special Agreement and on 10 January 1979 also received a letter from the Registrar to the same efiect. 3. By a letter dated 14 February 1979, the Secretary of Foreign Affairs of Libya transmitted a copy of the Special Agreement in Arabic to the Registrar together with a translation in English certified as accurate2. As indicated in paragraph 3 of the letter, the original Arabic text is the authentic text of the Special Agreement. It is the only authentic text. Libya, however, has regarded the English translation enclosed with that letter as a true and correct translation and (in addition to the observations set forth in paragraphs 5 through 8 below) reiterates its reservation with respect to any discrepancies between the English translation and the French translation mentioned in paragraph 2 above. Unless a contrary intention is expressed or appears from the context, references in this Mernorial to the text of the Special Agreement are to the Arabic text and, as appropriate, to the English translation enclosed with the letter of 14 February 1979. 4. The English translation of the Special Agreement reads as follows: [See Special Agreement, pp. 26-27, supra] The teim "Libya" refers to the State of Libya and ils governrncnt, whatever the form of govcrnment at the relevant time. and, as may appcar trorn the contcxt, also to the territory which now bclongs to the Socialist Pcoplc's Libyan Arab Jarnahiriya. ' Copies of the lettcr datcd 14 Feb. 1979 and the original Arabic ttxt and English translation O-LtheSpccial Agreement arc attachcd as Annex 1-1. 456 CONTINENTAL SHELF [3-41 5. The role assigncd to the Court by the Special Agreement is defined in Articles 1 through 3. In this connection, the Parties have agreed to have recourse to the Court to facilitate the delimitation by thernselves of the area of the continental shelf appertaining to Libya and the area of the continental shelf appertaining to Tunisia in accordance with the judgment of the Court and with its explanalions and clarifications (if any should be required). 6. Article 1 of the Special Agreement requests the Court to render a judgment. Pursuant to Article 38 of the Statute of the Court and Article 1 of the Special Agreement, that judgment is to reflect the relevant princi- ples and rules of international law for the delimitation by the Parties of the areas referred to in paragraph 5 above. In Article 1 the Parties also request the Court to take its decision- "... according to equitable principles, and the relevant circumstances which characterise the area, as well as the new accepted trends in the Third Conference on the Law of the Sea'." This reference to "equitable principies" does not confer power on the Court io decide the case ex aequo et bono, since here, as in the North Sea Continental Sheif Cases- "[tlhere is ... no question in this case of any decision ex aequo et bono, such as would only be possible under the conditions prescribed by Article 38, paragraph 2, of the Court's Statute2." 7. Although the second paragraph of Article 1 of the Special Agree- ment requests the Court "... to clarify the practical method for the applica- tion of these principles and rules in this specific situation ...", it does not transfer the task of delimitation from the Parties to the Court. The express purpose of the request made !O the Court in that paragraph is to obtain sufficient clarification of the practical method for the application of these principies and rules to enable the experts of the two countries to delimit the areas without any difficulties. Accordingly, there is no foun- dation for the insertion of the words "avec précision" in the expression "de clarifier avec précision ta manière pratique" in the first line of paragraph 2 of Article 1 in the French translation3 transmitted to the Court with the Tunisian letter dated 25 Novernber 1978 since the original Arabic text provides no justification for their insertion. 'Sec para. 82 below and fn. 2 at p. 35 bctow with regard to the Informal Composite Ncgotioting Texr/Revision 2. Third United Nations Conferencc on the Law of the Sca. Any rcfcrcnccs to thc work of the Conferencc in the Special Agreement or in ihis Mernorial or ihcx procccdings gcnerally should bc withour prejudice to any position takcn or to bc taken by Libya in conntction thtrewith. ' I.C.J. Reports 1969, p. 48, para. 88. SecAnnex 1-2 for a copy of the Frcnch translation of the Special Agreement as submitted ta the Registrar by the Tunisian Minister of Foreign Aflairs. [51 MEMORIAL OF LIBYA 457 8, If further explanations or clarifications should be required to enable the Parties to determine the line of delimitation of the continental shelf areas, it is clear that they may be sought under Article 3 of the Special Agreement. At the present stage no issue turns on Article 3, but it may be observed that the power under that Article is not confined to mere inter- pretation of the judgment under Article 1. By virtue of Article 3, any such explanations and clarifications-as well as the judgment under Arti- cle 1-will be binding on the Parties. 9. In cornpliance with Article 49 of the Rules of Court, this Memorial is divided into the following parts: Part 1 contains a statement of the relevant facts, including the history of the matter, the historical background of the area as a whole, and the geological and geographical facts relating to the area concerned. Part II contains a statement of the law. Part III contains the legal arguments developed by Libya in support of its Submissions, together with application of these arguments to the facts of this case. Part IV contains a summary of the Memorial. The final portion of the Memorial sets forth Libya's Submissions to the Court. In addition, documents cited in this Memorial, together with English or French translations if the text is not in one of the official languages of the Court, are filed herewith in Volume 1 of the Annexes. Volume II of the Annexes consists of a geological Study . PREFATORY NOTE 10. At the outset, it may be useful to point out that, as will be evident from the history of their discussions, the Parties have not, to the present, had occasion to define major factual and legal issues which must form the predicate of any dispute and provide a necessary focus for resolution. In the present case, Mernorials are being filed simultaneously against a back- ground of some uncertainty and confusion concerning facts and issues upon which the Parties have relied or may intend to rely. Certain posi- tions have been taken, and claims asserted, during a sporadic course of discussions. These may, or may not, continue to reflect current views. It is, accordingly, a prime function of the present proceedings to pro- vide-for the first time-an occasion for the mutual effort of the Parties to marshal facts and formulate issues which, from their respective view- points, provide a focus for the Court's deliberations within the framework envisaged by the Speciai Agreement. This Mernorial seeks ta accomplish this goal, with an economy intended to avoid an excess of anticipatory rebuttal of unpredictable contentions, while at the same tirne stressing those preponderant considerations of fact and law which, in the view of Libya, lead to and justify its Submissions. Libya reserves the right to supplement these considerations and its Submissions in the light of the Tunisian pleadings and the further development of the issues between the Parties. PART 1 THE FACTS CHAPTER 1 GENERAL HISTORICAL BACKGROUND 11. Part I of this Memorial is concerned with factual background which is of significance to an examination of The Law (Part II) and to the Application of the Law to the Focis (Part III). It commences with a . brief sumrnary of general historicai background. 12. Libya became an independent State on 24 December 195 1. Tuni- sia became an independent State on 20 March 1956. Independence, so recently achieved by bothiLibya and Tunisia, was the culmination of centuries of varying degrel of foreign domination.