North Sea Continental Shelf, Germany v Denmark, Merits, Judgment, (1969) ICJ Rep 3, ICGJ 150 (ICJ 1969), 20th February 1969, International Court of Justice [ICJ]
- Germany, Netherlands
- José Luis Bustamante y Rivero (President); Vladimir M Koretsky (Vice-President); Kotaro Tanaka; Philip C Jessup; Gaetano Morelli; Sir Muhammad Zafrulla Khan; Luis Padilla Nervo; Isaac Forster; André Gros; Fouad Ammoun; César Bengzon; Sture Petrén; Manfred Lachs; Charles D Onyeama; Hermann Mosler (Judge ad hoc); Max Sørensen (Judge ad hoc)
- Procedural Stage:
- Merits, Judgment
- International courts and tribunals — Equity — Continental shelf — Delimitation — Treaties, effect for third states — Treaties, entry into force — Treaties, ratification — Treaties, reservations and declarations — Customary international law — Good faith — Opinio juris
- Core Issue(s):
- What principles and rules of international law applied to the dispute regarding the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand, and between the Federal Republic of Germany and the Netherlands on the other, and then how to delimit the area on that basis.
- Whether the delimitations at issue were required to be carried out according to the principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf or apportionment (dividing the area into equal shares).
- Whether the delimitations at issue were to be carried out according to equitable principles, and if so, how these principles applied in this case.
Decision - full text
Present: President Bustamante y Rivero; Vice-President Koretsky; Judges Sir Gerald Fitzmaurice, Tanaka, Jessup, Morelli, Sir Muhammad Zafrulla Khan, Padilla Nervo, Forster, Gros, Ammoun, Bengzon, Petren, Lachs, Onyeama; Judges ad hoc Mosler, Sørensen; Registrar Aquarone.
In the North Sea Continental Shelf cases,
the Federal Republic of Germany,
Dr. G. Jaenicke, Professor of International Law in the University of Frankfurt am Main,
Dr. S. Oda, Professor of International Law in the University of Sendai,
Dr. U. Scheuner, Professor of International Law in the University of Bonn,
Dr. E. Menzel, Professor of International Law in the University of Kiel,
Dr. Henry Herrmann, of the Massachusetts Bar, associated with Messrs. Goodwin, Procter and Hoar, Counsellors-at-Law, Boston,
Dr. H. Blomeyer-Bartenstein, Counsellor 1st Class, Ministry of Foreign Affairs,
Dr. H. D. Treviranus, Counsellor, Ministry of Foreign Affairs,
and by Mr. K. Witt, Ministry of Foreign Affairs,
the Kingdom of Denmark,
Mr. Bent Jacobsen, Barrister at the Supreme Court of Denmark,
as Agent and Advocate,
Sir Humphrey Waldock, C.M.G., O.B.E., Q.C., Professor of International Law in the University of Oxford,
as Counsel and Advocate,
H.E. Mr. S. Sandager Jeppesen, Ambassador, Ministry of Foreign Affairs,
Mr. E. Krog-Meyer, Head of The Legal Department, Ministry of Foreign Affairs,
Dr. I. Foighel, Professor in the University of Copenhagen,
Mr. E. Lauterpacht, Member of the English Bar and Lecturer in the University of Cambridge,
Mr. M. Thamsborg, Head of Department, Hydrographic Institute,
Mr. P. Boeg, Head of Secretariat, Ministry of Foreign Affairs,
Mr. U. Engel, Head of Section, Ministry of Foreign Affairs,
the Federal Republic of Germany,
represented as indicated above,
the Kingdom of the Netherlands,
Professor W. Riphagen, Legal Adviser to the Ministry of Foreign Affairs, Professor of International Law at the Rotterdam School of Economics,
Sir Humphrey Waldock, C.M.G., O.B.E., Q.C., Professor of International Law in the University of Oxford,
Rear-Admiral W. Langeraar, Chief of the Hydrographie Department, Royal Netherlands Navy,
Mr. G. W. Maas Geesteranus, Assistant Legal Adviser to the Ministry of Foreign Affairs,
Miss F. Y. van der Wal, Assistant Legal Adviser to the Ministry of Foreign Affairs,
Mr. H. Rombach, Divisional Head, Hydrographie Department, Royal Netherlands Navy,
composed as above,
delivers the following Judgment:
By a letter of 16 February 1967, received in the Registry on 20 February 1967, the Minister for Foreign Affairs of the Netherlands transmitted to the Registrar:
(a) an original copy, signed at Bonn on 2 February 1967 for the Governments of Denmark and the Federal Republic of Germany, of a Special Agreement for the submission to the Court of a difference between those two States concerning the delimitation, as between them, of the continental shelf in the North Sea;
(b) an original copy, signed at Bonn on 2 February 1967 for the Governments of the Federal Republic of Germany and the Netherlands, of a Special Agreement for the submission to the Court of a difference between those two States concerning the delimitation, as between them, of the continental shelf in the North Sea;
(c) an original copy, signed at Bonn on 2 February 1967 for the three Governments aforementioned, of a Protocol relating to certain procedural questions arising from the above-mentioned Special Agreements.
(1) The International Court of Justice is requested to decide the following question:
What principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the above-mentioned Convention of 9 June 1965?
(1) The Parties shall present their written pleadings to the Court in the order stated below:
1 . a Memorial of the Federal Republic of Germany to be submitted within six months from the notification of the present Agreement to the Court;
2 . a Counter-Memorial of the Kingdom of Denmark to be submitted within six months from the delivery of the German Memorial;
(2) Additional written pleadings may be presented if this is jointly proposed by the Parties and considered by the Court to be appropriate to the case and the circumstances.
The present Agreement shall enter into force on the day of signature thereof.”
(1) The International Court of Justice is requested to decide the following question:
What principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the above-mentioned Convention of 1 December 1964?
(1) The Parties shall present their written pleadings to the Court in the order stated below:
1 . a Memorial of the Federal Republic of Germany to be submitted within six months from the notification of the present Agreement to the Court;
2 . a Counter-Memorial of the Kingdom of the Netherlands to be submitted within six months from the delivery of the German Memorial;
3 . a German Reply followed by a Netherlands Rejoinder to be delivered within such time-limits as the Court may order.
(2) Additional written pleadings may be presented if this is jointly proposed by the Parties and considered by the Court to be appropriate to the case and the circumstances.
The Protocol between the three Governments reads as follows:
At the signature of the Special Agreement of today's date between the Government of the Federal Republic of Germany and the Governments of the Kingdom of Denmark and the Kingdom of the Netherlands respectively, on the submission to the International Court of Justice of the differences between the Parties concerning the delimitation of the continental shelf in the North Sea, the three Governments wish to state their agreement on the following:
1 . The Government of the Kingdom of the Netherlands will, within a month from the signature, notify the two Special Agreements together with the present Protocol to the International Court of Justice in accordance with Article 40, paragraph 1, of the Statute of the Court.
2 . After the notification in accordance with item 1 above the Parties will ask the Court to join the two cases.
3 . The three Governments agree that, for the purpose of appointing a judge ad hoc, the Governments of the Kingdom of Denmark and the Kingdom of the Netherlands shall be considered parties in the same interest within the meaning of Article 31, paragraphs, of the Statute of the Court.”
Pursuant to Article 33, paragraph 2, of the Rules of Court, the Registrar at once informed the Governments of Denmark and the Federal Republic of Germany of the filing of the Special Agreements. In accordance with Article 34, paragraph 2, of the Rules of Court, copies of the Special Agreements were transmitted to the other Members of the United Nations and to other nonmember States entitled to appear before the Court.
By Orders of 8 March 1967, taking into account the agreement reached between the Parties, 21 August 1967 and 20 February 1968 were fixed respectively as the time-limits for the filing of the Memorials and Counter-Memorials. These pleadings were filed within the time-limits prescribed. By Orders of 1 March 1968, 31 May and 30 August 1968 were fixed respectively as the time-limits for the filing of the Replies and Rejoinders.
Pursuant to Article 31, paragraph 3, of the Statute of the Court, the Government of the Federal Republic of Germany chose Dr. Hermann Mosler, Professor of International Law in the University of Heidelberg, to sit as Judge ad hoc in both cases. Referring to the agreement concluded between them according to which they should be considered parties in the same interest within the meaning of Article 31, paragraph 5, of the Statute, the Governments of Denmark and the Netherlands chose Dr. Max Sørensen, Professor of International Law in the University of Aarhus, to sit as Judge ad hoc in both cases.
By an Order of 26 April 1968, considering that the Governments of Denmark and the Netherlands were, so far as the choice of a Judge ad hoc was concerned, to be reckoned as one Party only, the Court found that those two Governments were in the same interest, joined the proceedings in the two cases and, in modification of the directions given in the Orders of 1 March 1968, fixed 30 August 1968 as the time-limit for the filing of a Common Rejoinder for Denmark and the Netherlands.
The Replies and the Common Rejoinder having been filed within the timelimits prescribed, the cases were ready for hearing on 30 August 1968.
Pursuant to Article 44, paragraph 2, of the Rules of Court, the pleadings and annexed documents were, after consultation of the Parties, made available to the Governments of Brazil, Canada, Chile, Colombia, Ecuador, Finland, France, Honduras, Iran, Norway, Sweden, United Kingdom of Great Britain and Northern Ireland, United States of America and Venezuela. Pursuant to paragraph 3 of the same Article, those pleadings and annexed documents were, with the consent of the Parties, made accessible to the public as from the date of the opening of the oral proceedings.
Hearings were held from 23 to 25 October, from 28 October to 1 November, and on 4, 5, 7, 8 and 11 November 1968, in the course of which the Court heard, in the order agreed between the Parties and accepted by the Court, the oral arguments and replies of Professor Jaenicke, Agent, and Professor Oda, Counsel, on behalf of the Government of the Federal Republic of Germany; and of Mr. Jacobsen and Professor Riphagen, Agents, and Sir Humphrey Waldock, Counsel, on behalf of the Governments of Denmark and the Netherlands.
In the course of the written proceedings, the following Submissions were presented by the Parties:
On behalf of the Government of the Federal Republic of Germany,
in the Memorials:
“May it please the Court to recognize and declare:
1 . The delimitation of the continental shelf between the Parties in the North Sea is governed by the principle that each coastal State is entitled to a just and equitable share.
2 . The method of determining boundaries of the continental shelf in such a way that every point of the boundary is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured (equidistance method), is not a rule of customary international law and is therefore not applicable as such between the Parties.
3 . The equidistance method cannot be employed for the delimitation of the continental shelf unless it is established by agreement, arbitration, or otherwise, that it will achieve a just and equitable apportionment of the continental shelf among the States concerned.
4 . As to the delimitation of the continental shelf between the Parties in the North Sea, the equidistance method cannot find application, since it would not apportion a just and equitable share to the Federal Republic of Germany”;
in the Replies:
“May it please the Court to recognize and declare:
1 . The delimitation of the continental shelf between the Parties in the North Sea is governed by the principle that each coastal State is entitled to a just and equitable share.
(a) The method of determining boundaries of the continental shelf in such a way that every point of the boundary is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured (equidistance method) is not a rule of customary international law.
(b) The rule contained in the second sentence of paragraph 2 of Article 6 of the Continental Shelf Convention, prescribing that in the absence of agreement, and unless another boundary is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance, has not become customary international law.
(c) Even if the rule under (b) would be applicable between the Parties, special circumstances within the meaning of that rule would exclude the application of the equidistance method in the present case.
(a) The equidistance method cannot be used for the delimitation of the continental shelf unless it is established by agreement, arbitration, or otherwise, that it will achieve a just and equitable apportionment of the continental shelf among the States concerned.
(b) As to the delimitation of the continental shelf between the Parties in the North Sea, the Kingdom of Denmark and the Kingdom of the Netherlands cannot rely on the application of the equidistance method, since it would not lead to an equitable apportionment.
4 . Consequently, the delimitation of the continental shelf in the North Sea between the Parties is a matter which has to be settled by agreement. This agreement should apportion a just and equitable share to each of the Parties in the light of all factors relevant in this respect.”
On behalf of the Government of Denmark,
in its Counter-Memorial:
“Considering that, as noted in the Compromis, disagreement exists between the Parties which could not be settled by detailed negotiations, regarding the further course of the boundary beyond the partial boundary determined by the Convention of 9 June 1965;
Considering that under the terms of Article 1, paragraph 1, of the Compromis the task entrusted to the Court is not to formulate a basis for the delimitation of the continental shelf in the North Sea as between the Parties ex aequo et bono, but to decide what principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary, determined by the above-mentioned Convention of 9 June 1965;
In view of the facts and arguments presented in Parts I and II of this Counter-Memorial,
May it please the Court to adjudge and declare:
1 . The delimitation as between the Parties of the said areas of the continental shelf in the North Sea is governed by the principles and rules of international law which are expressed in Article 6, paragraph 2, of the Geneva Convention of 1958 on the Continental Shelf.
2 . The Parties being in disagreement, unless another boundary is justified by special circumstances, the boundary between them is to be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
3 . Special circumstances which justify another boundary line not having been established, the boundary between the Parties is to be determined by application of the principle of equidistance indicated in the preceding Submission.”
On behalf of the Government of the Netherlands,
in its Counter-Memorial:
“Considering that, as noted in the Compromis, disagreement exists between the Parties which could not be settled by detailed negotiations, regarding the further course of the boundary beyond the partial boundary determined by the Treaty of 1 December 1964;
Considering that under the terms of Article 1, paragraph 1, of the Compromis the task entrusted to the Court is not to formulate a basis for the delimitation of the continental shelf in the North Sea as between the Parties ex aequo et bono, but to decide what principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the abovementioned Treaty of 1 December 1964;
In view of the facts and arguments presented in Parts I and II of this Counter-Memorial,
May it please the Court to adjudge and declare:
1 . The delimitation as between the Parties of the said areas of the continental shelf in the North Sea is governed by the principles and rules of international law which are expressed in Article 6, paragraph 2, of the Geneva Convention of 1958 on the Continental Shelf.
2 . The Parties being in disagreement, unless another boundary is justified by special circumstances, the boundary between them is to be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
3 . Special circumstances which justify another boundary line not having been established, the boundary between the Parties is to be determined by application of the principle of equidistance indicated in the preceding Submission.”
On behalf of the Governments of Denmark and the Netherlands,
in the Common Rejoinder:
“May it further please the Court to adjudge and declare:
4 . If the principles and rules of international law mentioned in Submission 1 of the respective Counter-Memorials are not applicable as between the Parties, the boundary is to be determined between the Parties on the basis of the exclusive rights of each Party over the continental shelf adjacent to its coast and of the principle that the boundary is to leave to each Party every point of the continental shelf which lies nearer to its coast than to the coast of the other Party.”
In the course of the oral proceedings, the following Submissions were presented by the Parties:
On behalf of the Government of the Federal Republic of Germany,
at the hearing on 5 November 1968:
“1 . The delimitation of the continental shelf between the Parties in the North Sea is governed by the principle that each coastal State is entitled to a just and equitable share.
(a) The method of determining boundaries of the continental shelf in such a way that every point of the boundary is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured (equidistance method) is not a rule of customary international law.
(b) The rule contained in the second sentence of paragraph 2 of Article 6 of the Continental Shelf Convention, prescribing that in the absence of agreement, and unless another boundary is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance, has not become customary international law.
(c) Even if the rule under (b) would be applicable between the Parties, special circumstances within the meaning of that rule would exclude the application of the equidistance method in the present case.
(a) The equidistance method cannot be used for the delimitation of the continental shelf unless it is established by agreement, arbitration, or otherwise, that it will achieve a just and equitable apportionment of the continental shelf among the States concerned.
(b) As to the delimitation of the continental shelf between the Parties in the North Sea, the Kingdom of Denmark and the Kingdom of the Netherlands cannot rely on the application of the equidistance method, since it would not lead to an equitable apportionment.
4 . Consequently, the delimitation of the continental shelf, on which the Parties must agree pursuant to paragraph 2 of Article 1 of the Special Agreement, is determined by the principle of the just and equitable share, based on criteria relevant to the particular geographical situation in the North Sea.”
On behalf of the Government of Denmark,
at the hearing on 11 November 1968, Counsel for that Government stated that it confirmed the Submissions presented in its Counter-Memorial and in the Common Rejoinder and that those Submissions were identical mutatis mutandis with those of the Government of the Netherlands.
On behalf of the Government of the Netherlands,
at the hearing on 11 November 1968:
”With regard to the delimitation as between the Federal Republic of Germany and the Kingdom of the Netherlands of the boundary of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the Convention of 1 December 1964.
May it please the Court to adjudge and declare:
1 . The delimitation as between the Parties of the said areas of the continental shelf in the North Sea is governed by the principles and rules of international law which are expressed in Article 6, paragraph 2, of the Geneva Convention of 1958 on the Continental Shelf.
2 . The Parties being in disagreement, unless another boundary is justified by special circumstances, the boundary between them is to be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
3 . Special circumstances which justify another boundary line not having been established, the boundary between the Parties is to be determined by application of the principle of equidistance indicated in the preceding Submission.
4 . If the principles and rules of international law mentioned in Submission 1 are not applicable as between the Parties, the boundary is to be determined between the Parties on the basis of the exclusive rights of each Party over the continental shelf adjacent to its coast and of the principle that the boundary is to leave to each Party every point of the continental shelf which lies nearer to its coast than to the coast of the other Party.”
∗ ∗ ∗ ∗ ∗
1 . By the two Special Agreements respectively concluded between the Kingdom of Denmark and the Federal Republic of Germany, and between the Federal Republic and the Kingdom of the Netherlands, the Parties have submitted to the Court certain differences concerning “the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them”—with the exception of those areas, situated in the immediate vicinity of the coast, which have already been the subject of delimitation by two agreements dated 1 December 1964, and 9 June 1965, concluded in the one case between the Federal Republic and the Kingdom of the Netherlands, and in the other between the Federal Republic and the Kingdom of Denmark.
2 . It is in respect of the delimitation of the continental shelf areas lying beyond and to seaward of those affected by the partial boundaries thus established, that the Court is requested by each of the two Special Agreements to decide what are the applicable “principles and rules of international law”. The Court is not asked actually to delimit the further boundaries which will be involved, this task being reserved by the Special Agreements to the Parties, which undertake to effect such a delimitation “by agreement in pursuance of the decision requested from the … Court”—that is to say on the basis of, and in accordance with, the principles and rules of international law found by the Court to be applicable.
3 . As described in Article 4 of the North Sea Policing of Fisheries Convention of 6 May 1882, the North Sea, which lies between continental Europe and Great Britain in the east-west direction, is roughly oval in shape and stretches from the straits of Dover northwards to a parallel drawn between a point immediately north of the Shetland Islands and the mouth of the Sogne Fiord in Norway, about 75 kilometres above Bergen, beyond which is the North Atlantic Ocean. In the extreme northwest, it is bounded by a line connecting the Orkney and Shetland island groups; while on its north-eastern side, the line separating it from the entrances to the Baltic Sea lies between Hanstholm at the north-west point of Denmark, and Lindesnes at the southern tip of Norway. Eastward of this line the Skagerrak begins. Thus, the North Sea has to some extent the general look of an enclosed sea without actually being one. Round its shores are situated, on its eastern side and starting from the north, Norway, Denmark, the Federal Republic of Germany, the Netherlands, Belgium and France; while the whole western side is taken up by Great Britain, together with the island groups of the Orkneys and Shetlands. From this it will be seen that the continental shelf of the Federal Republic is situated between those of Denmark and the Netherlands.
4 . The waters of the North Sea are shallow, and the whole seabed consists of continental shelf at a depth of less than 200 metres, except for the formation known as the Norwegian Trough, a belt of water 200–650 metres deep, fringing the southern and south-western coasts of Norway to a width averaging about 80–100 kilometres. Much the greater part of this continental shelf has already been the subject of delimitation by a series of agreements concluded between the United Kingdom (which, as stated, lies along the whole western side of it) and certain of the States on the eastern side, namely Norway, Denmark and the Netherlands. These three delimitations were carried out by the drawing of what are known as “median lines” which, for immediate present purposes, may be described as boundaries drawn between the continental shelf areas of “opposite” States, dividing the intervening spaces equally between them. These lines are shown on Map 1 on page 15, together with a similar line, also established by agreement, drawn between the shelf areas of Norway and Denmark. Theoretically it would be possible also to draw the following median lines in the North Sea, namely United Kingdom/Federal Republic (which would lie east of the present line United Kingdom/ Norway-Denmark-Netherlands); Norway/Federal Republic (which would lie south of the present line Norway/Denmark); and Norway/Netherlands (which would lie north of whatever line is eventually determined to be the continental shelf boundary between the Federal Republic and the Netherlands). Even if these median lines were drawn however, the question would arise whether the United Kingdom, Norway and the Netherlands could take advantage of them as against the parties to the existing delimitations, since these lines would, it seems, in each case lie beyond (i.e., respectively to the east, south and north of) the boundaries already effective under the existing agreements at present in force. This is illustrated by Map 2 on page 15.
5 . In addition to the partial boundary lines Federal Republic/Denmark and Federal Republic/Netherlands, which, as mentioned in paragraph 1 above, were respectively established by the agreements of 9 June 1965 and 1 December 1964, and which are shown as lines A-B and C-D on Map 3 on page 16, another line has been drawn in this area, namely that represented by the line E-F on that map. This line, which divides areas respectively claimed (to the north of it) by Denmark, and (to the south of it) by the Netherlands, is the outcome of an agreement between those two countries dated 31 March 1966, reflecting the view taken by them as to what are the correct boundary lines between their respective continental shelf areas and that of the Federal Republic, beyond the partial boundaries A-B and C-D already drawn. These further and unagreed boundaries to seaward, are shown on Map 3 by means of the dotted lines B-E and D-E. They are the lines, the correctness of which in law the Court is in effect, though indirectly, called upon to determine. Also shown on Map 3 are the two pecked lines B-F and D-F, representing approximately the boundaries which the Federal Republic would have wished to obtain in the course of the negotiations that took place between the Federal Republic and the other two Parties prior to the submission of the matter to the Court. The nature of these negotiations must now be described.
6 . Under the agreements of December 1964 and June 1965, already mentioned, the partial boundaries represented by the map lines A-B and C-D had, according to the information furnished to the Court by the Parties, been drawn mainly by application of the principle of equidistance, using that term as denoting the abstract concept of equidistance. A line so drawn, known as an “equidistance line”, may be described as one which leaves to each of the parties concerned all those portions of the continental shelf that are nearer to a point on its own coast than they are to any point on the coast of the other party. An equidistance line may consist either of a “median” line between “opposite” States, or of a “lateral” line between “adjacent” States. In certain geographical configurations of which the Parties furnished examples, a given equidistance line may partake in varying degree of the nature both of a median and of a lateral line. There exists nevertheless a distinction to be drawn between the two, which will be mentioned in its place.
7 . The further negotiations between the Parties for the prolongation of the partial boundaries broke down mainly because Denmark and the Netherlands respectively wished this prolongation also to be effected on the basis of the equidistance principle,—and this would have resulted in the dotted lines B-E and D-E, shown on Map 3; whereas the Federal Republic considered that such an outcome would be inequitable because it would unduly curtail what the Republic believed should be its proper share of continental shelf area, on the basis of proportionality to the length of its North Sea coastline. It will be observed that neither of the lines in question, taken by itself, would produce this effect, but only both of them together—an element regarded by Denmark and the Netherlands as irrelevant to what they viewed as being two separate and self-contained delimitations, each of which should be carried out without reference to the other.
8 . The reason for the result that would be produced by the two lines B-E and D-E, taken conjointly, is that in the case of a concave or recessing coast such as that of the Federal Republic on the North Sea, the effect of the use of the equidistance method is to pull the line of the boundary inwards, in the direction of the concavity. Consequently, where two such lines are drawn at different points on a concave coast, they will, if the curvature is pronounced, inevitably meet at a relatively short distance from the coast, thus causing the continental shelf area they enclose, to take the form approximately of a triangle with its apex to seaward and, as it was put on behalf of the Federal Republic, “cutting off” the coastal State from the further areas of the continental shelf outside of and beyond this triangle. The effect of concavity could of course equally be produced for a country with a straight coastline if the coasts of adjacent countries protruded immediately on either side of it. In contrast to this, the effect of coastal projections, or of convex or outwardly curving coasts such as are, to a moderate extent, those of Denmark and the Netherlands, is to cause boundary lines drawn on an equidistance basis to leave the coast on divergent courses, thus having a widening tendency on the area of continental shelf off that coast. These two distinct effects, which are shown in sketches I–III to be found on page 16, are directly attributable to the use of the equidistance method of delimiting continental shelf boundaries off recessing or projecting coasts. It goes without saying that on these types of coasts the equidistance method produces exactly similar effects in the delimitation of the lateral boundaries of the territorial sea of the States concerned. However, owing to the very close proximity of such waters to the coasts concerned, these effects are much less marked and may be very slight,—and there are other aspects involved, which will be considered in their place. It will suffice to mention here that, for instance, a deviation from a line drawn perpendicular to the general direction of the coast, of only 5 kilometres, at a distance of about 5 kilometres from that coast, will grow into one of over 30 at a distance of over 100 kilometres.
9 . After the negotiations, separately held between the Federal Republic and the other two Parties respectively, had in each case, for the reasons given in the two preceding paragraphs, failed to result in any agreement about the delimitation of the boundary extending beyond the partial one already agreed, tripartite talks between all the Parties took place in The Hague in February–March 1966, in Bonn in May and again in Copenhagen in August. These also proving fruitless, it was then decided to submit the matter to the Court. In the meantime the Governments of Denmark and the Netherlands had, by means of the agreement of 31 March 1966, already referred to (paragraph 5), proceeded to a delimitation as between themselves of the continental shelf areas lying between the apex of the triangle notionally ascribed by them to the Federal Republic (point E on Map 3) and the median line already drawn in the North Sea, by means of a boundary drawn on equidistance principles, meeting that line at the point marked F on Map 3. On 25 May 1966, the Government of the Federal Republic, taking the view that this delimitation was res inter alios acta, notified the Governments of Denmark and the Netherlands, by means of an aide-mémoire, that the agreement thus concluded could not “have any effect on the question of the delimitation of the German-Netherlands or the German-Danish parts of the continental shelf in the North Sea”.
10 . In pursuance of the tripartite arrangements that had been made at Bonn and Copenhagen, as described in the preceding paragraph, Special Agreements for the submission to the Court of the differences involved were initialled in August 1966 and signed on 2 February 1967. By a tripartite Protocol signed the same day it was provided (a) that the Government of the Kingdom of the Netherlands would notify the two Special Agreements to the Court, in accordance with Article 40, paragraph 1, of the Court's Statute, together with the text of the Protocol itself; (b) that after such notification, the Parties would ask the Court to join the two cases; and (c) that for the purpose of the appointment of a judge ad hoc, the Kingdoms of Denmark and the Netherlands should be considered as being in the same interest within the meaning of Article 31, paragraph 5, of the Court's Statute. Following upon these communications, duly made to it in the implementation of the Protocol, the Court, by an Order dated 26 April 1968, declared Denmark and the Netherlands to be in the same interest, and joined the proceedings in the two cases.
11 . Although the proceedings have thus been joined, the cases themselves remain separate, at least in the sense that they relate to different areas of the North Sea continental shelf, and that there is no a priori reason why the Court must reach identical conclusions in regard to them,—if for instance geographical features present in the one case were not present in the other. At the same time, the legal arguments presented on behalf of Denmark and the Netherlands, both before and since the joinder, have been substantially identical, apart from certain matters of detail, and have been presented either in common or in close co-operation. To this extent therefore, the two cases may be treated as one; and it must be noted that although two separate delimitations are in question, they involve—indeed actually give rise to—a single situation. The fact that the question of either of these delimitations might have arisen and called for settlement separately in point of time, does not alter the character of the problem with which the Court is actually faced, having regard to the manner in which the Parties themselves have brought the matter before it, as described in the two preceding paragraphs.
12 . In conclusion as to the facts, it should be noted that the Federal Republic has formally reserved its position, not only in regard to the Danish-Netherlands delimitation of the line E-F (Map 3), as noted in paragraph 9, but also in regard to the delimitations United Kingdom Denmark and United Kingdom/Netherlands mentioned in paragraph 4. In both the latter cases the Government of the Federal Republic pointed out to all the Governments concerned that the question of the lateral delimitation of the continental shelf in the North Sea between the Federal Republic and the Kingdoms of Denmark and the Netherlands was still outstanding and could not be prejudiced by the agreements concluded between those two countries and the United Kingdom.
∗ ∗ ∗
13 . Such are the events and geographical facts in the light of which the Court has to determine what principles and rules of international law are applicable to the delimitation of the areas of continental shelf involved. On this question the Parties have taken up fundamentally different positions. On behalf of the Kingdoms of Denmark and the Netherlands it is contended that the whole matter is governed by a mandatory rule of law which, reflecting the language of Article 6 of the Convention on the Continental Shelf concluded at Geneva on 29 April 1958, was designated by them as the “equidistance-special circumstances” rule. According to this contention, “equidistance” is not merely a method of the cartographical construction of a boundary line, but the essential element in a rule of law which may be stated as follows,—namely that in the absence of agreement by the Parties to employ another method or to proceed to a delimitation on an ad hoc basis, all continental shelf boundaries must be drawn by means of an equidistance line, unless, or except to the extent to which, “special circumstances” are recognized to exist,—an equidistance line being, it will be recalled, a line every point on which is the same distance away from whatever point is nearest to it on the coast of each of the countries concerned—or rather, strictly, on the baseline of the territorial sea along that coast. As regards what constitutes “special circumstances”, all that need be said at this stage is that according to the view put forward on behalf of Denmark and the Netherlands, the configuration of the German North Sea coast, its recessive character, and the fact that it makes nearly a right-angled bend in mid-course, would not of itself constitute, for either of the two boundary lines concerned, a special circumstance calling for or warranting a departure from the equidistance method of delimitation: only the presence of some special feature, minor in itself—such as an islet or small protuberance—but so placed as to produce a disproportionately distorting effect on an otherwise acceptable boundary line would, so it was claimed, possess this character.
14 . These various contentions, together with the view that a rule of equidistance-special circumstances is binding on the Federal Republic, are founded by Denmark and the Netherlands partly on the 1958 Geneva Convention on the Continental Shelf already mentioned (preceding paragraph), and partly on general considerations of law relating to the continental shelf, lying outside this Convention. Similar considerations are equally put forward to found the contention that the delimitation on an equidistance basis of the line E-F (Map 3) by the Netherlands-Danish agreement of 31 March 1966 (paragraph 5 above) is valid erga omnes, and must be respected by the Federal Republic unless it can demonstrate the existence of juridically relevant “special circumstances”.
15 . The Federal Republic, for its part, while recognizing the utility of equidistance as a method of delimitation, and that this method can in many cases be employed appropriately and with advantage, denies its obligatory character for States not parties to the Geneva Convention, and contends that the correct rule to be applied, at any rate in such circumstances as those of the North Sea, is one according to which each of the States concerned should have a “just and equitable share” of the available continental shelf, in proportion to the length of its coastline or sea-frontage. It was also contended on behalf of the Federal Republic that in a sea shaped as is the North Sea, the whole bed of which, except for the Norwegian Trough, consists of continental shelf at a depth of less than 200 metres, and where the situation of the circumjacent States causes a natural convergence of their respective continental shelf areas, towards a central point situated on the median line of the whole seabed —or at any rate in those localities where this is the case—each of the States concerned is entitled to a continental shelf area extending up to this central point (in effect a sector), or at least extending to the median line at some point or other. In this way the “cut-off” effect, of which the Federal Republic complains, caused, as explained in paragraph 8, by the drawing of equidistance lines at the two ends of an inward curving or recessed coast, would be avoided. As a means of giving effect to these ideas, the Federal Republic proposed the method of the “coastal front”, or façade, constituted by a straight baseline joining these ends, upon which the necessary geometrical constructions would be erected.
16 . Alternatively, the Federal Republic claimed that if, contrary to its main contention, the equidistance method was held to be applicable, then the configuration of the German North Sea coast constituted a “special circumstance” such as to justify a departure from that method of delimitation in this particular case.
17 . In putting forward these contentions, it was stressed on behalf of the Federal Republic that the claim for a just and equitable share did not in any way involve asking the Court to give a decision ex aequo et bono (which, having regard to the terms of paragraph 2 of Article 38 of the Court's Statute, would not be possible without the consent of the Parties),—for the principle of the just and equitable share was one of the recognized general principles of law which, by virtue of paragraph 1 (c) of the same Article, the Court was entitled to apply as a matter of the justifia distributiva which entered into all legal systems. It appeared, moreover, that whatever its underlying motivation, the claim of the Federal Republic was, at least ostensibly, to a just and equitable share of the space involved, rather than to a share of the natural resources as such, mineral or other, to be found in it, the location of which could not in any case be fully ascertained at present. On the subject of location the Court has in fact received some, though not complete information, but has not thought it necessary to pursue the matter, since the question of natural resources is less one of delimitation than of eventual exploitation.
18 . It will be convenient to consider first the contentions put forward on behalf of the Federal Republic. The Court does not feel able to accept them—at least in the particular form they have taken. It considers that, having regard both to the language of the Special Agreements and to more general considerations of law relating to the régime of the continental shelf, its task in the present proceedings relates essentially to the delimitation and not the apportionment of the areas concerned, or their division into converging sectors. Delimitation is a process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share of a previously undelimited area, even though in a number of cases the results may be comparable, or even identical.
19 . More important is the fact that the doctrine of the just and equitable share appears to be wholly at variance with what the Court entertains no doubt is the most fundamental of all the rules of law relating to the continental shelf, enshrined in Article 2 of the 1958 Geneva Convention, though quite independent of it,—namely that the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabe 1 and exploiting its natural resources. In short, there is here an inhere t right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted. Furthermore, the right does not depend on its being exercised. To echo the language of the Geneva Convention, it is “exclusive” in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it, that is its own affair, but no one else may do so without its express consent.
20 . It follows that even in such a situation as that of the North Sea, the notion of apportioning an as yet undelimited area, considered as a whole (which underlies the doctrine of the just and equitable share), is quite foreign to, and inconsistent with, the basic concept of continental shelf entitlement, according to which the process of delimitation is essentially one of drawing a boundary line between areas which already appertain to one or other of the States affected. The delimitation itself must indeed be equitably effected, but it cannot have as its object the awarding of an equitable share, or indeed of a share, as such, at all,—for the fundamental concept involved does not admit of there being anything undivided to share out. Evidently any dispute about boundaries must involve that there is a disputed marginal or fringe area, to which both parties are laying claim, so that any delimitation of it which does not leave it wholly to one of the parties will in practice divide it between them in certain shares, or operate as if such a division had been made. But this does not mean that there has been an apportionment of something that previously consisted of an integral, still less an undivided whole.
∗ ∗ ∗
21 . The Court will now turn to the contentions advanced on behalf of Denmark and the Netherlands. Their general character has already been indicated in paragraphs 13 and 14: the most convenient way of dealing with them will be on the basis of the following question—namely, does the equidistance-special circumstances principle constitute a mandatory rule, either on a conventional or on a customary international law basis, in such a way as to govern any delimitation of the North Sea continental shelf areas between the Federal Republic and the Kingdoms of Denmark and the Netherlands respectively? Another and shorter way of formulating the question would be to ask whether, in any delimitation of these areas, the Federal Republic is under a legal obligation to accept the application of the equidistance-special circumstances principle.
22 . Particular attention is directed to the use, in the foregoing formulations, of the terms “mandatory” and “obligation”. It has never been doubted that the equidistance method of delimitation is a very convenient one, the use of which is indicated in a considerable number of cases. It constitutes a method capable of being employed in almost all circumstances, however singular the results might sometimes be, and has the virtue that if necessary,—if for instance, the Parties are unable to enter into negotiations,—any cartographer can de facto trace such a boundary on the appropriate maps and charts, and those traced by competent cartographers will for all practical purposes agree.
23 . In short, it would probably be true to say that no other method of delimitation has the same combination of practical convenience and certainty of application. Yet these factors do not suffice of themselves to convert what is a method into a rule of law, making the acceptance of the results of using that method obligatory in all cases in which the parties do not agree otherwise, or in which “special circumstances” cannot be shown to exist. Juridically, if there is such a rule, it must draw its legal force from other factors than the existence of these advantages, important though they may be. It should also be noticed that the counterpart of this conclusion is no less valid, and that the practical advantages of the equidistance method would continue to exist whether its employment were obligatory or not.
24 . It would however be ignoring realities if it were not noted at the same time that the use of this method, partly for the reasons given in paragraph 8 above and partly for reasons that are best appreciated by reference to the many maps and diagrams furnished by both sides in the course of the written and oral proceedings, can under certain circumstances produce results that appear on the face of them to be extraordinary, unnatural or unreasonable. It is basically this fact which underlies the present proceedings. The plea that, however this may be, the results can never be inequitable, because the equidistance principle is by definition an equitable principle of delimitation, involves a postulate that clearly begs the whole question at issue.
∗ ∗ ∗
25 . The Court now turns to the legal position regarding the equidistance method. The first question to be considered is whether the 1958 Geneva Convention on the Continental Shelf is binding for all the Parties in this case—that is to say whether, as contended by Denmark and the Netherlands, the use of this method is rendered obligatory for the present delimitations by virtue of the delimitations provision (Article 6) of that instrument, according to the conditions laid down in it. Clearly, if this is so, then the provisions of the Convention will prevail in the relations between the Parties, and would take precedence of any rules having a more general character, or derived from another source. On that basis the Court's reply to the question put to it in the Special Agreements would necessarily be to the effect that as between the Parties the relevant provisions of the Convention represented the applicable rules of law—that is to say constituted the law for the Parties—and its sole remaining task would be to interpret those provisions, in so far as their meaning was disputed or appeared to be uncertain, and to apply them to the particular circumstances involved.
26 . The relevant provisions of Article 6 of the Geneva Convention, paragraph 2 of which Denmark and the Netherlands contend not only to be applicable as a conventional rule, but also to represent the accepted rule of general international law on the subject of continental shelf delimitation, as it exists independently of the Convention, read as follows:
“1 . Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest point of the baselines from which the breadth of the territorial sea of each State is measured.
2 . Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.”
The Convention received 46 signatures and, up-to-date, there have been 39 ratifications or accessions. It came into force on 10 June 1964, having received the 22 ratifications or accessions required for that purpose (Article 11), and was therefore in force at the time when the various delimitations of continental shelf boundaries described earlier (paragraphs 1 and 5) took place between the Parties. But, under the formal provisions of the Convention, it is in force for any individual State only in so far as, having signed it within the time-limit provided for that purpose, that State has also subsequently ratified it; or, not having signed within that time-limit, has subsequently acceded to the Convention. Denmark and the Netherlands have both signed and ratified the Convention, and are parties to it, the former since 10 June 1964, the latter since 20 March 1966. The Federal Republic was one of the signatories of the Convention, but has never ratified it, and is consequently not a party.
27 . It is admitted on behalf of Denmark and the Netherlands that in these circumstances the Convention cannot, as such, be binding on the Federal Republic, in the sense of the Republic being contractually bound by it. But it is contended that the Convention, or the régime of the Convention, and in particular of Article 6, has become binding on the Federal Republic in another way,—namely because, by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the conventional régime; or has recognized it as being generally applicable to the delimitation of continental shelf areas. It has also been suggested that the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up.
28 . As regards these contentions, it is clear that only a very definite, very consistent course of conduct on the part of a State in the situation of the Federal Republic could justify the Court in upholding them; and, if this had existed—that is to say if there had been a real intention to manifest acceptance or recognition of the applicability of the conventional régime—then it must be asked why it was that the Federal Republic did not take the obvious step of giving expression to this readiness by simply ratifying the Convention. In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the régime of the convention is to be manifested—namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way. Indeed if it were a question not of obligation but of rights,—if, that is to say, a State which, though entitled to do so, had not ratified or acceded, attempted to claim rights under the convention, on the basis of a declared willingness to be bound by it, or of conduct evincing acceptance of the conventional régime, it would simply be told that, not having become a party to the convention it could not claim any rights under it until the professed willingness and acceptance had been manifested in the prescribed form.
29 . A further point, not in itself conclusive, but to be noted, is that if the Federal Republic had ratified the Geneva Convention, it could have entered—and could, if it ratified now, enter—a reservation to Article 6, by reason of the faculty to do so conferred by Article 12 of the Convention. This faculty would remain, whatever the previous conduct of the Federal Republic might have been—a fact which at least adds to the difficulties involved by the Danish-Netherlands contention.
30 . Having regard to these considerations of principle, it appears to the Court that only the existence of a situation of estoppel could suffice to lend substance to this contention,—that is to say if the Federal Republic were now precluded from denying the applicability of the conventional regime, by reason of past conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that régime, but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. Of this there is no evidence whatever in the present case.
31 . In these circumstances it seems to the Court that little useful purpose would be served by passing in review and subjecting to detailed scrutiny the various acts relied on by Denmark and the Netherlands as being indicative of the Federal Republic's acceptance of the régime of Article 6;—for instance that at the Geneva Conference the Federal Republic did not take formal objection to Article 6 and eventually signed the Convention without entering any reservation in respect of that provision; that it at one time announced its intention to ratify the Convention; that in its public declarations concerning its continental shelf rights it appeared to rely on, or at least cited, certain provisions of the Geneva Convention. In this last connection a good deal has been made of the joint Minute signed in Bonn, on 4 August 1964, between the then-negotiating delegations of the Federal Republic and the Netherlands. But this minute made it clear that what the Federal Republic was seeking was an agreed division, rather than a delimitation of the central North Sea continental shelf areas, and the reference it made to Article 6 was specifically to the first sentence of paragraphs 1 and 2 of that Article, which speaks exclusively of delimitation by agreement and not at all of the use of the equidistance method.
32 . In the result it appears to the Court that none of the elements invoked is decisive; each is ultimately negative or inconclusive; all are capable of varying interpretations or explanations. It would be one thing to infer from the declarations of the Federal Republic an admission accepting the fundamental concept of coastal State rights in respect of the continental shelf: it would be quite another matter to see in this an acceptance of the rules of delimitation contained in the Convention. The declarations of the Federal Republic, taken in the aggregate, might at most justify the view that to begin with, and before becoming fully aware of what the probable effects in the North Sea would be, the Federal Republic was not specifically opposed to the equidistance principle as embodied in Article 6 of the Convention. But from a purely negative conclusion such as this, it would certainly not be possible to draw the positive inference that the Federal Republic, though not a party to the Convention, had accepted the régime of Article 6 in a manner binding upon itself.
33 . The dangers of the doctrine here advanced by Denmark and the Netherlands, if it had to be given general application in the international law field, hardly need stressing. Moreover, in the present case, any such inference would immediately be nullified by the fact that, as soon as concrete delimitations of North Sea continental shelf areas began to be carried out, the Federal Republic, as described earlier (paragraphs 9 and 12), at once reserved its position with regard to those delimitations which (effected on an equidistance basis) might be prejudicial to the delimitation of its own continental shelf areas.
34 . Since, accordingly, the foregoing considerations must lead the Court to hold that Article 6 of the Geneva Convention is not, as such, applicable to the delimitations involved in the present proceedings, it becomes unnecessary for it to go into certain questions relating to the interpretation or application of that provision which would otherwise arise. One should be mentioned however, namely what is the relationship between the requirement of Article 6 for delimitation by agreement, and the requirements relating to equidistance and special circumstances that are to be applied in “the absence of” such agreement,—i.e., in the absence of agreement on the matter, is there a presumption that the continental shelf boundary between any two adjacent States consists automatically of an equidistance line,—or must negotiations for an agreed boundary prove finally abortive before the acceptance of a boundary drawn on an equidistance basis becomes obligatory in terms of Article 6, if no special circumstances exist?
35 . Without attempting to resolve this question, the determination of which is not necessary for the purposes of the present case, the Court draws attention to the fact that the delimitation of the line E-F, as shown on Map 3, which was effected by Denmark and the Netherlands under the agreement of 31 March 1966 already mentioned (paragraphs 5 and 9), to which the Federal Republic was not a party, must have been based on the tacit assumption that, no agreement to the contrary having been reached in the negotiations between the Federal Republic and Denmark and the Netherlands respectively (paragraph 7), the boundary between the continental shelf areas of the Republic and those of the other two countries must be deemed to be an equidistance one;—or in other words the delimitation of the line E-F, and its validity erga omnes including the Federal Republic, as contended for by Denmark and the Netherlands, presupposes both the delimitation and the validity on an equidistance basis, of the lines B-E and D-E on Map 3, considered by Denmark and the Netherlands to represent the boundaries between their continental shelf areas and those of the Federal Republic.
36 . Since, however, Article 6 of the Geneva Convention provides only for delimitation between “adjacent” States, which Denmark and the Netherlands clearly are not, or between “opposite” States which, despite suggestions to the contrary, the Court thinks they equally are not, the delimitation of the line E-F on Map 3 could not in any case find its validity in Article 6, even if that provision were opposable to the Federal Republic. The validity of this delimitation must therefore be sought in some other source of law. It is a main contention of Denmark and the Netherlands that there does in fact exist such another source, furnishing a rule that validates not only this particular delimitation, but all delimitations effected on an equidistance basis,—and indeed requiring delimitation on that basis unless the States concerned otherwise agree, and whether or not the Geneva Convention is applicable. This contention must now be examined.
∗ ∗ ∗
37 . It is maintained by Denmark and the Netherlands that the Federal Republic, whatever its position may be in relation to the Geneva Convention, considered as such, is in any event bound to accept delimitation on an equidistance-special circumstances basis, because the use of this method is not in the nature of a merely conventional obligation, but is, or must now be regarded as involving, a rule that is part of the corpus of general international law;—and, like other rules of general or customary international law, is binding on the Federal Republic automatically and independently of any specific assent, direct or indirect, given by the latter. This contention has both a positive law and a more fundamentalist aspect. As a matter of positive law, it is based on the work done in this field by international legal bodies, on State practice and on the influence attributed to the Geneva Convention itself,—the claim being that these various factors have cumulatively evidenced or been creative of the opinio juris sive necessitatis, requisite for the formation of new rules of customary international law. In its fundamentalist aspect, the view put forward derives from what might be called the natural law of the continental shelf, in the sense that the equidistance principle is seen as a necessary expression in the field of delimitation of the accepted doctrine of the exclusive appurtenance of the continental shelf to the nearby coastal State, and therefore as having an a priori character of so to speak juristic inevitability.
38 . The Court will begin by examining this latter aspect, both because it is the more fundamental, and was so presented on behalf of Denmark and the Netherlands—i.e., as something governing the whole case; and because, if it is correct that the equidistance principle is, as the point was put in the course of the argument, to be regarded as inherent in the whole basic concept of continental shelf rights, then equidistance should constitute the rule according to positive law tests also. On the other hand, if equidistance should not possess any a priori character of necessity or inherency, this would not be any bar to its having become a rule of positive law through influences such as those of the Geneva Convention and State practice,—and that aspect of the matter would remain for later examination.
39 . The a priori argument starts from the position described in paragraph 19, according to which the right of the coastal State to its continental shelf areas is based on its sovereignty over the land domain, of which the shelf area is the natural prolongation into and under the sea. From this notion of appurtenance is derived the view which, as has already been indicated, the Court accepts, that the coastal State's rights exist ipso facto and ab initio without there being any question of having to make good a claim to the areas concerned, or of any apportionment of the continental shelf between different States. This was one reason why the Court felt bound to reject the claim of the Federal Republic (in the particular form which it took) to be awarded a “just and equitable share” of the shelf areas involved in the present proceedings. Denmark and the Netherlands, for their part, claim that the test of appurtenance must be “proximity”, or more accurately “closer proximity”: all those parts of the shelf being considered as appurtenant to a particular coastal State which are (but only if they are) closer to it than they are to any point on the coast of another State. Hence delimitation must be effected by a method which will leave to each one of the States concerned all those areas that are nearest to its own coast. Only a line drawn on equidistance principles will do this. Therefore, it is contended, only such a line can be valid (unless the Parties, for reasons of their own, agree on another), because only such a line can be thus consistent with basic continental shelf doctrine.
40 . This view clearly has much force; for there can be no doubt that as a matter of normal topography, the greater part of a State's continental shelf areas will in fact, and without the necessity for any delimitation at all, be nearer to its coasts than to any other. It could not well be otherwise; but post hoc is not propter hoc, and this situation may only serve to obscure the real issue, which is whether it follows that every part of the area concerned must be placed in this way, and that it should be as it were prohibited that any part should not be so placed. The Court does not consider that it does follow, either from the notion of proximity itself, or from the more fundamental concept of the continental shelf as being the natural prolongation of the land domain—a concept repeatedly appealed to by both sides throughout the case, although quite differently interpreted by them.
41 . As regards the notion of proximity, the idea of absolute proximity is certainly not implied by the rather vague and general terminology employed in the literature of the subject, and in most State proclamations and international conventions and other instruments—terms such as “near”, “close to its shores”, “off its coast”, “opposite”, “in front of the coast”, “in the vicinity of”, “neighbouring the coast”, “adjacent to”, “contiguous”, etc.,—all of them terms of a somewhat imprecise character which, although they convey a reasonably clear general idea, are capable of a considerable fluidity of meaning. To take what is perhaps the most frequently employed of these terms, namely “adjacent to”, it is evident that by no stretch of imagination can a point on the continental shelf situated say a hundred miles, or even much less, from a given coast, be regarded as “adjacent” to it, or to any coast at all, in the normal sense of adjacency, even if the point concerned is nearer to some one coast than to any other. This would be even truer of localities where, physically, the continental shelf begins to merge with the ocean depths. Equally, a point inshore situated near the meeting place of the coasts of two States can often properly be said to be adjacent to both coasts, even though it may be fractionally closer to the one than the other. Indeed, local geographical configuration may sometimes cause it to have a closer physical connection with the coast to which it is not in fact closest.
42 . There seems in consequence to be no necessary, and certainly no complete, identity between the notions of adjacency and proximity; and therefore the question of which parts of the continental shelf “adjacent to” a coastline bordering more than one State fall within the appurtenance of which of them, remains to this extent an open one, not to be determined on a basis exclusively of proximity. Even if proximity may afford one of the tests to be applied and an important one in the right conditions, it may not necessarily be the only, nor in all circumstances, the most appropriate one. Hence it would seem that the notion of adjacency, so constantly employed in continental shelf doctrine from the start, only implies proximity in a general sense, and does not imply any fundamental or inherent rule the ultimate effect of which would be to prohibit any State (otherwise than by agreement) from exercising continental shelf rights in respect of areas closer to the coast of another State.
43 . More fundamental than the notion of proximity appears to be the principle—constantly relied upon by all the Parties—of the natural prolongation or continuation of the land territory or domain, or land sovereignty of the coastal State, into and under the high seas, via the bed of its territorial sea which is under the full sovereignty of that State. There are various ways of formulating this principle, but the underlying idea, namely of an extension of something already possessed, is the same, and it is this idea of extension which is, in the Court's opinion, determinant. Submarine areas do not really appertain to the coastal State because—or not only because—they are near it. They are near it of course; but this would not suffice to confer title, any more than, according to a well-established principle of law recognized by both sides in the present case, mere proximity confers per se title to land territory. What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion,—in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea. From this it would follow that whenever a given submarine area does not constitute a natural—or the most natural—extension of the land territory of a coastal State, even though that area may be closer to it than it is to the territory of any other State, it cannot be regarded as appertaining to that State;— or at least it cannot be so regarded in the face of a competing claim by a State of whose land territory the submarine area concerned is to be regarded as a natural extension, even if it is less close to it.
44 . In the present case, although both sides relied on the prolongation principle and regarded it as fundamental, they interpreted it quite differently. Both interpretations appear to the Court to be incorrect. Denmark and the Netherlands identified natural prolongation with closest proximity and therefrom argued that it called for an equidistance line: the Federal Republic seemed to think it implied the notion of the just and equitable share, although the connection is distinctly remote. (The Federal Republic did however invoke another idea, namely that of the proportionality of a State's continental shelf area to the length of its coastline, which obviously does have an intimate connection with the prolongation principle, and will be considered in its place.) As regards equidistance, it clearly cannot be identified with the notion of natural prolongation or extension, since, as has already been stated (paragraph 8), the use of the equidistance method would frequently cause areas which are the natural prolongation or extension of the territory of one State to be attributed to another, when the configuration of the latter's coast makes the equidistance line swing out laterally across the former's coastal front, cutting it off from areas situated directly before that front.
45 . The fluidity of all these notions is well illustrated by the case of the Norwegian Trough (paragraph 4 above). Without attempting to pronounce on the status of that feature, the Court notes that the shelf areas in the North Sea separated from the Norwegian coast by the 80100 kilometres of the Trough cannot in any physical sense be said to be adjacent to it, nor to be its natural prolongation. They are nevertheless considered by the States parties to the relevant delimitations, as described in paragraph 4, to appertain to Norway up to the median lines shown on Map 1. True these median lines are themselves drawn on equidistance principles; but it was only by first ignoring the existence of the Trough that these median lines fell to be drawn at all.
46 . The conclusion drawn by the Court from the foregoing analysis is that the notion of equidistance as being logically necessary, in the sense of being an inescapable a priori accompaniment of basic continental shelf doctrine, is incorrect. It is said not to be possible to maintain that there is a rule of law ascribing certain areas to a State as a matter of inherent and original right (see paragraphs 19 and 20), without also admitting the existence of some rule by which those areas can be obligatorily delimited. The Court cannot accept the logic of this view. The problem arises only where there is a dispute and only in respect of the marginal areas involved. The appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries, any more than uncertainty as to boundaries can affect territorial rights. There is for instance no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations (Monastery of Saint Naoum, Advisory Opinion, 1924, P.C.I.J., Series B, No. 9, at p. 10).
∗ ∗ ∗
47 . A review of the genesis and development of the equidistance method of delimitation can only serve to confirm the foregoing conclusion. Such a review may appropriately start with the instrument, generally known as the “Truman Proclamation”, issued by the Government of the United States on 28 September 1945. Although this instrument was not the first or only one to have appeared, it has in the opinion of the Court a special status. Previously, various theories as to the nature and extent of the rights relative to or exercisable over the continental shelf had been advanced by jurists, publicists and technicians. The Truman Proclamation however, soon came to be regarded as the starting point of the positive law on the subject, and the chief doctrine it enunciated, namely that of the coastal State as having an original, natural, and exclusive (in short a vested) right to the continental shelf off its shores, came to prevail over all others, being now reflected in Article 2 of the 1958 Geneva Convention on the Continental Shelf. With regard to the delimitation of lateral boundaries between the continental shelves of adjacent States, a matter which had given rise to some consideration on the technical, but very little on the juristic level, the Truman Proclamation stated that such boundaries “shall be determined by the United States and the State concerned in accordance with equitable principles”. These two concepts, of delimitation by mutual agreement and delimitation in accordance with equitable principles, have underlain all the subsequent history of the subject. They were reflected in various other State proclamations of the period, and after, and in the later work on the subject.
48 . It was in the International Law Commission of the United Nations that the question of delimitation as between adjacent States was first taken up seriously as part of a general juridical project; for outside the ranks of the hydrographers and cartographers, questions of delimitation were not much thought about in earlier continental shelf doctrine. Juridical interest and speculation was focussed mainly on such questions as what was the legal basis on which any rights at all in respect of the continental shelf could be claimed, and what was the nature of those rights. As regards boundaries, the main issue was not that of boundaries between States but of the seaward limit of the area in respect of which the coastal State could claim exclusive rights of exploitation. As was pointed out in the course of the written proceedings, States in most cases had not found it necessary to conclude treaties or legislate about their lateral sea boundaries with adjacent States before the question of exploiting the natural resources of the seabed and subsoil arose;—practice was therefore sparse.
49 . In the records of the International Law Commission, which had the matter under consideration from 1950 to 1956, there is no indication at all that any of its members supposed that it was incumbent on the Commission to adopt a rule of equidistance because this gave expression to, and translated into linear terms, a principle of proximity inherent in the basic concept of the continental shelf, causing every part of the shelf to appertain to the nearest coastal State and to no other, and because such a rule must therefore be mandatory as a matter of customary international law. Such an idea does not seem ever to have been propounded. Had it been, and had it had the self-evident character contended for by Denmark and the Netherlands, the Commission would have had no alternative but to adopt it, and its long continued hesitations over this matter would be incomprehensible.
50 . It is moreover, in the present context, a striking feature of the Commission's discussions that during the early and middle stages, not only was the notion of equidistance never considered from the standpoint of its having a priori a character of inherent necessity: it was never given any special prominence at all, and certainly no priority. The Commission discussed various other possibilities as having equal if not superior status such as delimitation by agreement, by reference to arbitration, by drawing lines perpendicular to the coast, by prolonging the dividing line of adjacent territorial waters (the principle of which was itself not as yet settled), and on occasion the Commission seriously considered adopting one or other of these solutions. It was not in fact until after the matter had been referred to a committee of hydrographical experts, which reported in 1953, that the equidistance principle began to take precedence over other possibilities: the Report of the Commission for that year (its principal report on the topic of delimitation as such) makes it clear that before this reference to the experts the Commission had felt unable to formulate any definite rule at all, the previous trend of opinion having been mainly in favour of delimitation by agreement or by reference to arbitration.
51 . It was largely because of these difficulties that it was decided to consult the Committee of Experts. It is therefore instructive in the context (i.e., of an alleged inherent necessity for the equidistance principle) to see on what basis the matter was put to the experts, and how they dealt with it. Equidistance was in fact only one of four methods suggested to them, the other three being the continuation in the seaward direction of the land frontier between the two adjacent States concerned; the drawing of a perpendicular to the coast at the point of its intersection with this land frontier; and the drawing of a line perpendicular to the line of the “general direction” of the coast. Furthermore the matter was not even put to the experts directly as a question of continental shelf delimitation, but in the context of the delimitation of the lateral boundary between adjacent territorial waters, no account being taken of the possibility that the situation respecting territorial waters might be different.
52 . The Committee of Experts simply reported that after a thorough discussion of the different methods—(there are no official records of this discussion)—they had decided that “the (lateral) boundary through the territorial sea—if not already fixed otherwise—should be drawn according to the principle of equidistance from the respective coastlines”. They added, however, significantly, that in “a number of cases this may not lead to an equitable solution, which should be then arrived at by negotiation”. Only after that did they add, as a rider to this conclusion, that they had considered it “important to find a formula for drawing the international boundaries in the territorial waters of States, which could also be used for the delimitation of the respective continental shelves of two States bordering the same continental shelf”.
53 . In this almost impromptu, and certainly contingent manner was the principle of equidistance for the delimitation of continental shelf boundaries propounded. It is clear from the Report of the Commission for 1953 already referred to (paragraph 50) that the latter adopted it largely on the basis of the recommendation of the Committee of Experts, and even so in a text that gave priority to delimitation by agreement and also introduced an exception in favour of “special circumstances” which the Committee had not formally proposed. The Court moreover thinks it to be a legitimate supposition that the experts were actuated by considerations not of legal theory but of practical convenience and cartography of the kind mentioned in paragraph 22 above. Although there are no official records of their discussions, there is warrant for this view in correspondence passing between certain of them and the Commission's Special Rapporteur on the subject, which was deposited by one of the Parties during the oral hearing at the request of the Court. Nor, even after this, when a decision in principle had been taken in favour of an equidistance rule, was there an end to the Commission's hesitations, for as late as three years after the adoption of the report of the Committee of Experts, when the Commission was finalizing the whole complex of drafts comprised under the topic of the Law of the Sea, various doubts about the equidistance principle were still being voiced in the Commission, on such grounds for instance as that its strict application would be open, in certain cases, to the objection that the geographical configuration of the coast would render a boundary drawn on this basis inequitable.
54 . A further point of some significance is that neither in the Committee of Experts, nor in the Commission itself, nor subsequently at the Geneva Conference, does there appear to have been any discussion of delimitation in the context, not merely of two adjacent States, but of three or more States on the same coast, or in the same vicinity,—from which it can reasonably be inferred that the possible resulting situations, some of which have been described in paragraph 8 above, were never really envisaged or taken into account. This view finds some confirmation in the fact that the relevant part of paragraph 2 of Article 6 of the Geneva Convention speaks of delimiting the continental shelf of “two” adjacent States (although a reference simply to “adjacent States” would have sufficed), whereas in respect of median lines the reference in paragraph 1 of that Article is to “two or more” opposite States.
55 . In the light of this history, and of the record generally, it is clear that at no time was the notion of equidistance as an inherent necessity of continental shelf doctrine entertained. Quite a different outlook was indeed manifested from the start in current legal thinking. It was, and it really remained to the end, governed by two beliefs;—namely, first, that no one single method of delimitation was likely to prove satisfactory in all circumstances, and that delimitation should, therefore, be carried out by agreement (or by reference to arbitration); and secondly, that it should be effected on equitable principles. It was in pursuance of the first of these beliefs that in the draft that emerged as Article 6 of the Geneva Convention, the Commission gave priority to delimitation by agreement,— and in pursuance of the second that it introduced the exception in favour of “special circumstances”. Yet the record shows that, even with these mitigations, doubts persisted, particularly as to whether the equidistance principle would in all cases prove equitable.
56 . In these circumstances, it seems to the Court that the inherency contention as now put forward by Denmark and the Netherlands inverts the true order of things in point of time and that, so far from an equidistance rule having been generated by an antecedent principle of proximity inherent in the whole concept of continental shelf appurtenance, the latter is rather a rationalization of the former—an ex post facto construct directed to providing a logical juristic basis for a method of delimitation propounded largely for different reasons, cartographical and other. Given also that for the reasons already set out (paragraphs 40–46) the theory cannot be said to be endowed with any quality of logical necessity either, the Court is unable to accept it.
57 . Before going further it will be convenient to deal briefly with two subsidiary matters. Most of the difficulties felt in the International Law Commission related, as here, to the case of the lateral boundary between adjacent States. Less difficulty was felt over that of the median line boundary between opposite States, although it too is an equidistance line. For this there seems to the Court to be good reason. The continental shelf area off, and dividing, opposite States, can be claimed by each of them to be a natural prolongation of its territory. These prolongations meet and overlap, and can therefore only be delimited by means of a median line; and, ignoring the presence of islets, rocks and minor coastal projections, the disproportionally distorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved. If there is a third State on one of the coasts concerned, the area of mutual natural prolongation with that of the same or another opposite State will be a separate and distinct one, to be treated in the same way. This type of case is therefore different from that of laterally adjacent States on the same coast with no immediately opposite coast in front of it, and does not give rise to the same kind of problem—a conclusion which also finds some confirmation in the difference of language to be observed in the two paragraphs of Article 6 of the Geneva Convention (reproduced in paragraph 26 above) as respects recourse in the one case to median lines and in the other to lateral equidistance lines, in the event of absence of agreement.
58 . If on the other hand, contrary to the view expressed in the preceding paragraph, it were correct to say that there is no essential difference in the process of delimiting the continental shelf areas between opposite States and that of delimitations between adjacent States, then the results ought in principle to be the same or at least comparable. But in fact, whereas a median line divides equally between the two opposite countries areas that can be regarded as being the natural prolongation of the territory of each of them, a lateral equidistance line often leaves to one of the States concerned areas that are a natural prolongation of the territory of the other.
59 . Equally distinct in the opinion of the Court is the case of the lateral boundary between adjacent territorial waters to be drawn on an equidistance basis. As was convincingly demonstrated in the maps and diagrams furnished by the Parties, and as has been noted in paragraph 8, the distorting effects of lateral equidistance lines under certain conditions of coastal configuration are nevertheless comparatively small within the limits of territorial waters, but produce their maximum effect in the localities where the main continental shelf areas lie further out. There is also a direct correlation between the notion of closest proximity to the coast and the sovereign jurisdiction which the coastal State is entitled to exercise and must exercise, not only over the seabed underneath the territorial waters but over the waters themselves, which does not exist in respect of continental shelf areas where there is no jurisdiction over the superjacent waters, and over the seabed only for purposes of exploration and exploitation.
∗ ∗ ∗
60 . The conclusions so far reached leave open, and still to be considered, the question whether on some basis other than that of an a priori logical necessity, i.e., through positive law processes, the equidistance principle has come to be regarded as a rule of customary international law, so that it would be obligatory for the Federal Republic in that way, even though Article 6 of the Geneva Convention is not, as such, opposable to it. For this purpose it is necessary to examine the status of the principle as it stood when the Convention was drawn up, as it resulted from the effect of the Convention, and in the light of State practice subsequent to the Convention; but it should be clearly understood that in the pronouncements the Court makes on these matters it has in view solely the delimitation provisions (Article 6) of the Convention, not other parts of it, nor the Convention as such.
61 . The first of these questions can conveniently be considered in the form suggested on behalf of Denmark and the Netherlands themselves in the course of the oral hearing, when it was stated that they had not in fact contended that the delimitation article (Article 6) of the Convention “embodied already received rules of customary law in the sense that the Convention was merely declaratory of existing rules”. Their contention was, rather, that although prior to the Conference, continental shelf law was only in the formative stage, and State practice lacked uniformity, yet “the process of the definition and consolidation of the emerging customary law took place through the work of the International Law Commission, the reaction of governments to that work and the proceedings of the Geneva Conference”; and this emerging customary law became “crystallized in the adoption of the Continental Shelf Convention by the Conference”.
62 . Whatever validity this contention may have in respect of at least certain parts of the Convention, the Court cannot accept it as regards the delimitation provision (Article 6), the relevant parts of which were adopted almost unchanged from the draft of the International Law Commission that formed the basis of discussion at the Conference. The status of the rule in the Convention therefore depends mainly on the processes that led the Commission to propose it. These processes have already been reviewed in connection with the Danish-Netherlands contention of an a priori necessity for equidistance, and the Court considers this review sufficient for present purposes also, in order to show that the principle of equidistance, as it now figures in Article 6 of the Convention, was proposed by the Commission with considerable hesitation, somewhat on an experimental basis, at most de lege ferenda, and not at all de lege lata or as an emerging rule of customary international law. This is clearly not the sort of foundation on which Article 6 of the Convention could be said to have reflected or crystallized such a rule.
63 . The foregoing conclusion receives significant confirmation from the fact that Article 6 is one of those in respect of which, under the reservations article of the Convention (Article 12) reservations may be made by any State on signing, ratifying or acceding,—for, speaking generally, it is a characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted;—whereas this cannot be so in the case of general or customary law rules and obligations which, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour. Consequently, it is to be expected that when, for whatever reason, rules or obligations of this order are embodied, or are intended to be reflected in certain provisions of a convention, such provisions will figure amongst those in respect of which a right of unilateral reservation is not conferred, or is excluded. This expectation is, in principle, fulfilled by Article 12 of the Geneva Continental Shelf Convention, which permits reservations to be made to all the articles of the Convention “other than to Articles 1 to 3 inclusive”—these three Articles being the ones which, it is clear, were then regarded as reflecting, or as crystallizing, received or at least emergent rules of customary international law relative to the continental shelf, amongst them the question of the seaward extent of the shelf; the juridical character of the coastal State's entitlement; the nature of the rights exercisable; the kind of natural resources to which these relate; and the preservation intact of the legal status as high seas of the waters over the shelf, and the legal status of the superjacent air-space.
64 . The normal inference would therefore be that any articles that do not figure among those excluded from the faculty of reservation under Article 12, were not regarded as declaratory of previously existing or emergent rules of law; and this is the inference the Court in fact draws in respect of Article 6 (delimitation), having regard also to the attitude of the International Law Commission to this provision, as already described in general terms. Naturally this would not of itself prevent this provision from eventually passing into the general corpus of customary international law by one of the processes considered in paragraphs 70–81 below. But that is not here the issue. What is now under consideration is whether it originally figured in the Convention as such a rule.
65 . It has however been suggested that the inference drawn at the beginning of the preceding paragraph is not necessarily warranted, seeing that there are certain other provisions of the Convention, also not excluded from the faculty of reservation, but which do undoubtedly in principle relate to matters that lie within the field of received customary law, such as the obligation not to impede the laying or maintenance of submarine cables or pipelines on the continental shelf seabed (Article 4), and the general obligation not unjustifiably to interfere with freedom of navigation, fishing, and so on (Article 5, paragraphs 1 and 6). These matters however, all relate to or are consequential upon principles or rules of general maritime law, very considerably ante-dating the Convention, and not directly connected with but only incidental to continental shelf rights as such. They were mentioned in the Convention, not in order to declare or confirm their existence, which was not necessary, but simply to ensure that they were not prejudiced by the exercise of continental shelf rights as provided for in the Convention. Another method of drafting might have clarified the point, but this cannot alter the fact that no reservation could release the reserving party from obligations of general maritime law existing outside and independently of the Convention, and especially obligations formalized in Article 2 of the contemporaneous Convention on the High Seas, expressed by its preamble to be declaratory of established principles of international law.
66 . Article 6 (delimitation) appears to the Court to be in a different position. It does directly relate to continental shelf rights as such, rather than to matters incidental to these; and since it was not, as were Articles 1 to 3, excluded from the faculty of reservation, it is a legitimate inference that it was considered to have a different and less fundamental status and not, like those Articles, to reflect pre—existing or emergent customary law. It was however contended on behalf of Denmark and the Netherlands that the right of reservation given in respect of Article 6 was not intended to be an unfettered right, and that in particular it does not extend to effecting a total exclusion of the equidistance principle of delimitation,—for, so it was claimed, delimitation on the basis of that principle is implicit in Articles 1 and 2 of the Convention, in respect of which no reservations are permitted. Hence the right of reservation under Article 6 could only be exercised in a manner consistent with the preservation of at least the basic principle of equidistance. In this connection it was pointed out that, of the no more than four reservations so far entered in respect of Article 6, one at least of which was somewhat farreaching, none has purported to effect such a total exclusion or denial.
67 . The Court finds this argument unconvincing for a number of reasons. In the first place, Articles 1 and 2 of the Geneva Convention do not appear to have any direct connection with inter—State delimitation as such. Article 1 is concerned only with the outer, seaward, limit of the shelf generally, not with boundaries between the shelf areas of opposite or adjacent States. Article 2 is equally not concerned with such boundaries. The suggestion seems to be that the notion of equidistance is implicit in the reference in paragraph 2 of Article 2 to the rights of the coastal State over its continental shelf being “exclusive”. So far as actual language is concerned this interpretation is clearly incorrect. The true sense of the passage is that in whatever areas of the continental shelf a coastal State has rights, those rights are exclusive rights, not exercisable by any other State. But this says nothing as to what in fact are the precise areas in respect of which each coastal State possesses these exclusive rights. This question, which can arise only as regards the fringes of a coastal State's shelf area is, as explained at the end of paragraph 20 above, exactly what falls to be settled through the process of delimitation, and this is the sphere of Article 6, not Article 2.
68 . Secondly, it must be observed that no valid conclusions can be drawn from the fact that the faculty of entering reservations to Article 6 has been exercised only sparingly and within certain limits. This is the affair exclusively of those States which have not wished to exercise the faculty, or which have been content to do so only to a limited extent. reservations 10 whatever is the legitimate extent of the right.
69 . In the light of these various considerations, the Court reaches the conclusion that the Geneva Convention did not embody or crytallize any pre-existing or emergent rule of customary law, according to which the delimitation of continental shelf areas between adjacent States must, unless the Parties otherwise agree, be carried out on an equidistance-special circumstances basis. A rule was of course embodied in Article 6 of the ention, but as a purely conventional rule. whether it has since acquired a broader basis remains to be seen: qua conventional rule however, as has already been concluded, it is not opposable to the Federal Republic.
∗ ∗ ∗
70 . The Court must now proceed to the last stage in the argument put forward on behalf of Denmark and the Netherlands. This is to the effect that even if there was at the date of the Geneva Convention no rule of customary international law in favour of the equidistance principle, and no such rule was crystallized in Article 6 of the Convention, nevertheless such a rule has come into being since the Convention, partly because of its own impact, partly on the basis of subsequent State practice,—and that this rule, being now a rule of customary international law binding on all States, including therefore the Federal Republic, should be declared applicable to the delimitation of the boundaries between the Parties' respective continental shelf areas in the North Sea.
71 . In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and has produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained.
72 . It would in the first place be necessary that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. Considered in abstracto the equidistance principle might be said to fulfil this requirement. Yet in the particular form in which it is embodied in Article 6 of the Geneva Convention, and having regard to the relationship of that Article to other provisions of the Convention, this must be open to some doubt. In the first place, Article 6 is so framed as to put second the obligation to make use of the equidistance method, causing it to come after a primary obligation to effect delimitation by agreement. Such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law. Without attempting to enter into, still less pronounce upon any question of jus cogens, it is well understood that, in practice, rules of international law can, by agreement, be derogated from in particular cases, or as between particular parties,—but this is not normally the subject of any express provision, as it is in Article 6 of the Geneva Convention. Secondly the part played by the notion of special circumstances relative to the principle of equidistance as embodied in Article 6, and the very considerable, still unresolved controversies as to the exact meaning and scope of this notion, must raise further doubts as to the potentially norm-creating character of the rule. Finally, the faculty of making reservations to Article 6, while it might not of itself prevent the equidistance principle being eventually received as general law, does add considerably to the difficulty of regarding this result as having been brought about (or being potentially possible) on the basis of the Convention: for so long as this faculty continues to exist, and is not the subject of any revision brought about in consequence of a request made under Article 13 of the Convention—of which there is at present no official indication—it is the Convention itself which would, for the reasons already indicated, seem to deny to the provisions of Article 6 the same norm-creating character as, for instance, Articles 1 and 2 possess.
73 . With respect to the other elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected. In the present case however, the Court notes that, even if allowance is made for the existence of a number of States to whom participation in the Geneva Convention is not open, or which, by reason for instance of being land-locked States, would have no interest in becoming parties to it, the number of ratifications and accessions so far secured is, though respectable, hardly sufficient. That non-ratification may sometimes be due to factors other than active disapproval of the convention concerned can hardly constitute a basis on which positive acceptance of its principles can be implied: the reasons are speculative, but the facts remain.
74 . As regards the time element, the Court notes that it is over ten years since the Convention was signed, but that it is even now less than five since it came into force in June 1964, and that when the present proceedings were brought it was less than three years, while less than one had elapsed at the time when the respective negotiations between the Federal Republic and the other two Parties for a complete delimitation broke down on the question of the application of the equidistance principle. Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked;— and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.
75 . The Court must now consider whether State practice in the matter of continental shelf delimitation has, subsequent to the Geneva Convention, been of such a kind as to satisfy this requirement. Leaving aside cases which, for various reasons, the Court does not consider to be reliable guides as precedents, such as delimitations effected between the present Parties themselves, or not relating to international boundaries, some fifteen cases have been cited in the course of the present proceedings, occurring mostly since the signature of the 1958 Geneva Convention, in which continental shelf boundaries have been delimited according to the equidistance principle—in the majority of the cases by agreement, in a few others unilaterally—or else the delimitation was foreshadowed but has not yet been carried out. Amongst these fifteen are the four North Sea delimitations United Kingdom/Norway-Denmark-Netherlands, and Norway/Denmark already mentioned in paragraph 4 of this Judgment. But even if these various cases constituted more than a very small proportion of those potentially calling for delimitation in the world as a whole, the Court would not think it necessary to enumerate or evaluate them separately, since there are, a priori, several grounds which deprive them of weight as precedents in the present context.
76 . To begin with, over half the States concerned, whether acting unilaterally or conjointly, were or shortly became parties to the Geneva Convention, and were therefore presumably, so far as they were concerned, acting actually or potentially in the application of the Convention. From their action no inference could legitimately be drawn as to the existence of a rule of customary international law in favour of the equidistance principle. As regards those States, on the other hand, which were not, and have not become parties to the Convention, the basis of their action can only be problematical and must remain entirely speculative. Clearly, they were not applying the Convention. But from that no inference could justifiably be drawn that they believed themselves to be applying a mandatory rule of customary international law. There is not a shred of evidence that they did and, as has been seen (paragraphs 22 and 23), there is no lack of other reasons for using the equidistance method, so that acting, or agreeing to act in a certain way, does not of itself demonstrate anything of a juridical nature.
77 . The essential point in this connection—and it seems necessary to stress it—is that even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris;—for, in order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.
78 . In this respect the Court follows the view adopted by the Permanent Court of International Justice in the Lotus case, as stated in the following passage, the principle of which is, by analogy, applicable almost word for word, mutatis mutandis, to the present case (P.C.I.J., Series A, No. 10, 1927, at p. 28):
“Even if the rarity of the judicial decisions to be found … were sufficient to prove … the circumstance alleged …, it would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, … there are other circumstances calculated to show that the contrary is true.”
Applying this dictum to the present case, the position is simply that in certain cases—not a great number—the States concerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance. There is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so—especially considering that they might have been motivated by other obvious factors.
79 . Finally, it appears that in almost all of the cases cited, the delimitations concerned were median-line delimitations between opposite States, not lateral delimitations between adjacent States. For reasons which have already been given (paragraph 57) the Court regards the case of median-line delimitations between opposite States as different in various respects, and as being sufficiently distinct not to constitute a precedent for the delimitation of lateral boundaries. In only one situation discussed by the Parties does there appear to have been a geographical configuration which to some extent resembles the present one, in the sense that a number of States on the same coastline are grouped around a sharp curve or bend of it. No complete delimitation in this area has however yet been carried out. But the Court is not concerned to deny to this case, or any other of those cited, all evidential value in favour of the thesis of Denmark and the Netherlands. It simply considers that they are inconclusive, and insufficient to bear the weight sought to be put upon them as evidence of such a settled practice, manifested in such circumstances, as would justify the inference that delimitation according to the principle of equidistance amounts to a mandatory rule of customary international law,—more particularly where lateral delimitations are concerned.
80 . There are of course plenty of cases (and a considerable number were cited) of delimitations of waters, as opposed to seabed, being carried out on the basis of equidistance—mostly of internal waters (lakes, rivers, etc.), and mostly median-line cases. The nearest analogy is that of adjacent territorial waters, but as already explained (paragraph 59) the Court does not consider this case to be analogous to that of the continental shelf.
81 . The Court accordingly concludes that if the Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law enjoining the use of the equidistance principle for the delimitation of continental shelf areas between adjacent States, neither has its subsequent effect been constitutive of such a rule; and that State practice up-to-date has equally been insufficient for the purpose.
82 . The immediately foregoing conclusion, coupled with that reached earlier (paragraph 56) to the effect that the equidistance principle could not be regarded as being a rule of law on any a priori basis of logical necessity deriving from the fundamental theory of the continental shelf, leads to the final conclusion on this part of the case that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings. In these circumstances, it becomes unnecessary for the Court to determine whether or not the configuration of the German North Sea coast constitutes a “special circumstance” for the purposes either of Article 6 of the Geneva Convention or of any rule of customary international law,—since once the use of the equidistance method of delimitation is determined not to be obligatory in any event, it ceases to be legally necessary to prove the existence of special circumstances in order to justify not using that method.
∗ ∗ ∗ ∗ ∗
83 . The legal situation therefore is that the Parties are under no obligation to apply either the 1958 Convention, which is not opposable to the Federal Republic, or the equidistance method as a mandatory rule of customary law, which it is not. But as between States faced with an issue concerning the lateral delimitation of adjacent continental shelves, there are still rules and principles of law to be applied; and in the present case it is not the fact either that rules are lacking, or that the situation is one for the unfettered appreciation of the Parties. Equally, it is not the case that if the equidistance principle is not a rule of law, there has to be as an alternative some other single equivalent rule.
84 . As already indicated, the Court is not called upon itself to delimit the areas of continental shelf appertaining respectively to each Party, and in consequence is not bound to prescribe the methods to be employed for the purposes of such a delimitation. The Court has to indicate to the Parties the principles and rules of law in the light of which the methods for eventually effecting the delimitation will have to be chosen. The Court will discharge this task in such a way as to provide the Parties with the requisite directions, without substituting itself for them by means of a detailed indication of the methods to be followed and the factors to be taken into account for the purposes of a delimitation the carrying out of which the Parties have expressly reserved to themselves.
85 . It emerges from the history of the development of the legal régime of the continental shelf, which has been reviewed earlier, that the essential reason why the equidistance method is not to be regarded as a rule of law is that, if it were to be compulsorily applied in all situations, this would not be consonant with certain basic legal notions which, as has been observed in paragraphs 48 and 55, have from the beginning reflected the opinio juris in the matter of delimitation; those principles being that delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles. On a foundation of very general precepts of justice and good faith, actual rules of law are here involved which govern the delimitation of adjacent continental shelves—that is to say, rules binding upon States for all delimitations;—m short, it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles, in accordance with the ideas which have always underlain the development of the legal régime of the continental shelf in this field, namely:
(a) the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under 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;
(b) the parties are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied,—for this purpose the equidistance method can be used, but other methods exist and may be employed, alone or in combination, according to the areas involved;
(c) for the reasons given in paragraphs 43 and 44, the continental shelf of any State must be the natural prolongation of its land territory and must not encroach upon what is the natural prolongation of the territory of another State.
∗ ∗ ∗
86 . It is now necessary to examine these rules more closely, as also certain problems relative to their application. So far as the first rule is concerned, the Court would recall not only that the obligation to negotiate which the Parties assumed by Article 1, paragraph 2, of the Special Agreements arises out of the Truman Proclamation, which, for the reasons given in paragraph 47, must be considered as having propounded the rules of law in this field, but also that this obligation merely constitutes a special application of a principle which underlies all international relations, and which is moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes. There is no need to insist upon the fundamental character of this method of settlement, except to point out that it is emphasized by the observable fact that judicial or arbitral settlement is not universally accepted.
87 . As the Permanent Court of International Justice said in its Order of 19 August 1929 in the case of the Free Zones of Upper Savoy and the District of Gex, the judicial settlement of international disputes “is simply an alternative to the direct and friendly settlement of such disputes between the parties” (P.C.I.J., Series A, No. 22, at p. 13). Defining the content of the obligation to negotiate, the Permanent Court, in its Advisory Opinion in the case of Railway Traffic between Lithuania and Poland, said that the obligation was “not only to enter into negotiations but also to pursue them as far as possible with a view to concluding agreements ”, even if an obligation to negotiate did not imply an obligation to reach agreement (P.C.I.J., Series A/B, No. 42, 1931, at p. 116). In the present case, it needs to be observed that whatever the details of the negotiations carried on in 1965 and 1966, they failed of their purpose because the Kingdoms of Denmark and the Netherlands, convinced that the equidistance principle alone was applicable, in consequence of a rule binding upon the Federal Republic, saw no reason to depart from that rule; and equally, given the geographical considerations stated in the last sentence of paragraph 7 above, the Federal Republic could not accept the situation resulting from the application of that rule. So far therefore the negotiations have not satisfied the conditions indicated in paragraph 85 (a), but fresh negotiations are to take place on the basis of the present Judgment.
∗ ∗ ∗
88 . The Court comes next to the rule of equity. The legal basis of that rule in the particular case of the delimitation of the continental shelf as between adjoining States has already been stated. It must however be noted that the rule rests also on a broader basis. Whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable. Nevertheless, when mention is made of a court dispensing justice or declaring the law, what is meant is that the decision finds its objective justification in considerations lying not outside but within the rules, and in this field it is precisely a rule of law that calls for the application of equitable principles. There is consequently 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 Statute. Nor would this be the first time that the Court has adopted such an attitude, as is shown by the following passage from the Advisory Opinion given in the case of Judgments of the Administrative Tribunal of the I.L.O. upon Complaints Made against Unesco (I.C.J. Reports 1956, at p. 100):
“In view of this the Court need not examine the allegation that the validity of the judgments of the Tribunal is vitiated by excess of jurisdiction on the ground that it awarded compensation ex aequo et bono. It will confine itself to stating that, in the reasons given by the Tribunal in support of its decision on the merits, the Tribunal said: ‘That redress will be ensured ex aequo et bono by the granting to the complainant of the sum set forth below.’ It does not appear from the context of the judgment that the Tribunal thereby intended to depart from principles of law. The apparent intention was to say that, as the precise determination of the actual amount to be awarded could not be based on any specific rule of law, the Tribunal fixed what the Court, in other circumstances, has described as the true measure of compensation and the reasonable figure of such compensation (Corfu Channel case, Judgment of December 15th, 1949, I.C.J. Reports 1949, p. 249).”
89 . It must next be observed that, in certain geographical circumstances which are quite frequently met with, the equidistance method, despite its known advantages, leads unquestionably to inequity, in the following sense:
(a) The slightest irregularity in a coastline is automatically magnified by the equidistance line as regards the consequences for the delimitation of the continental shelf. Thus it has been seen in the case of concave or convex coastlines that if the equidistance method is employed, then the greater the irregularity and the further from the coastline the area to be delimited, the more unreasonable are the results produced. So great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible, being of itself creative of inequity.
(b) In the case of the North Sea in particular, where there is no outer boundary to the continental shelf, it happens that the claims of several States converge, meet and intercross in localities where, despite their distance from the coast, the bed of the sea still unquestionably consists of continental shelf. A study of these convergences, as revealed by the maps, shows how inequitable would be the apparent simplification brought about by a delimitation which, ignoring such geographical circumstances, was based solely on the equidistance method.
90 . If for the above reasons equity excludes the use of the equidistance method in the present instance, as the sole method of delimitation, the question arises whether there is any necessity to employ only one method for the purposes of a given delimitation. There is no logical basis for this, and no objection need be felt to the idea of effecting a delimitation of adjoining continental shelf areas by the concurrent use of various methods. The Court has already stated why it considers that the international law of continental shelf delimitation does not involve any imperative rule and permits resort to various principles or methods, as may be appropriate, or a combination of them, provided that, by the application of equitable principles, a reasonable result is arrived at.
91 . Equity does not necessarily imply equality. There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline. Equality is to be reckoned within the same plane, and it is not such natural inequalities as these that equity could remedy. But in the present case there are three States whose North Sea coastlines are in fact comparable in length and which, therefore, have been given broadly equal treatment by nature except that the configuration of one of the coastlines would, if the equidistance method is used, deny to one of these States treatment equal or comparable to that given the other two. Here indeed is a case where, in a theoretical situation of equality within the same order, an inequity is created. What is unacceptable in this instance is that a State should enjoy continental shelf rights considerably different from those of its neighbours merely because in the one case the coastline is roughly convex in form and in the other it is markedly concave, although those coastlines are comparable in length. It is therefore not a question of totally refashioning geography whatever the facts of the situation but, given a geographical situation of quasi-equality as between a number of States, of abating the effects of an incidental special feature from which an unjustifiable difference of treatment could result.
92 . It has however been maintained that no one method of delimitation can prevent such results and that all can lead to relative injustices. This argument has in effect already been dealt with. It can only strengthen the view that it is necessary to seek not one method of delimitation but one goal. It is in this spirit that the Court must examine the question of how the continental shelf can be delimited when it is in fact the case that the equidistance principle does not provide an equitable solution. As the operation of delimiting is a matter of determining areas appertaining to different jurisdictions, it is a truism to say that the determination must be equitable; rather is the problem above all one of defining the means whereby the delimitation can be carried out in such a way as to be recognized as equitable. Although the Parties have made it known that they intend to reserve for themselves the application of the principles and rules laid down by the Court, it would, even so, be insufficient simply to rely on the rule of equity without giving some degree of indication as to the possible ways in which it might be applied in the present case, it being understood that the Parties will be free to agree upon one method rather than another, or different methods if they so prefer.
93 . 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. The problem of the relative weight to be accorded to different considerations naturally varies with the circumstances of the case.
94 . In balancing the factors in question it would appear that various aspects must be taken into account. Some are related to the geological, others to the geographical aspect of the situation, others again to the idea of the unity of any deposits. These criteria, though not entirely precise, can provide adequate bases for decision adapted to the factual situation.
95 . The institution of the continental shelf has arisen out of the recognition of a physical fact; and the link between this fact and the law, without which that institution would never have existed, remains an important element for the application of its legal régime. The continental shelf is, by definition, an area physically extending the territory of most coastal States into a species of platform which has attracted the attention first of geographers and hydrographers and then of jurists. The importance of the geological aspect is emphasized by the care which, at the beginning of its investigation, the International Law Commission took to acquire exact information as to its characteristics, as can be seen in particular from the definitions to be found on page 131 of Volume I of the Yearbook of the International Law Commission for 1956. The appurtenance of the shelf to the countries in front of whose coastlines it lies, is therefore a fact, and it can be useful to consider the geology of that shelf in order to find out whether the direction taken by certain configurational features should influence delimitation because, in certain localities, they point-up the whole notion of the appurtenance of the continental shelf to the State whose territory it does in fact prolong.
96 . The doctrine of the continental shelf is a recent instance of encroachment on maritime expanses which, during the greater part of history, appertained to no-one. The contiguous zone and the continental shelf are in this respect concepts of the same kind. In both instances the principle is applied that the land dominates the sea; it is consequently necessary to examine closely the geographical configuration of the coastlines of the countries whose continental shelves are to be delimited. This is one of the reasons why the Court does not consider that markedly pronounced configurations can be ignored; for, since the land is the legal source of the power which a State may exercise over territorial extensions to seaward, it must first be clearly established what features do in fact constitute such extensions. Above all is this the case when what is involved is no longer areas of sea, such as the contiguous zone, but stretches of submerged land; for the legal regime of the continental shelf is that of a soil and a subsoil, two words evocative of the land and not of the sea.
97 . Another factor to be taken into consideration in the delimitation of areas of continental shelf as between adjacent States is the unity of any deposits. The natural resources of the subsoil of the sea in those parts which consist of continental shelf are the very object of the legal régime established subsequent to the Truman Proclamation. Yet it frequently occurs that the same deposit lies on both sides of the line dividing a continental shelf between two States, and since it is possible to exploit such a deposit from either side, a problem immediately arises on account of the risk of prejudicial or wasteful exploitation by one or other of the States concerned. To look no farther than the North Sea, the practice of States shows how this problem has been dealt with, and all that is needed is to refer to the undertakings entered into by the coastal States of that sea with a view to ensuring the most efficient exploitation or the apportionment of the products extracted—(see in particular the agreement of 10 March 1965 between the United Kingdom and Norway, Article 4; the agreement of 6 October 1965 between the Netherlands and the United Kingdom relating to “the exploitation of single geological structures extending across the dividing line on the continental shelf under the North Sea”; and the agreement of 14 May 1962 between the Federal Republic and the Netherlands concerning a joint plan for exploiting the natural resources underlying the area of the Ems Estuary where the frontier between the two States has not been finally delimited.) The Court does not consider that unity of deposit constitutes anything more than a factual element which it is reasonable to take into consideration in the course of the negotiations for a delimitation. The Parties are fully aware of the existence of the problem as also of the possible ways of solving it.
98 . A final factor to be taken account of is the element of a reasonable degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines,—these being measured according to their general direction in order to establish the necessary balance between States with straight, and those with markedly concave or convex coasts, or to reduce very irregular coastlines to their truer proportions. The choice and application of the appropriate technical methods would be a matter for the parties. One method discussed in the course of the proceedings, under the name of the principle of the coastal front, consists in drawing a straight baseline between the extreme points at either end of the coast concerned, or in some cases a series of such lines. Where the parties wish to employ in particular the equidistance method of delimitation, the establishment of one or more baselines of this kind can play a useful part in eliminating or diminishing the distortions that might result from the use of that method.
99 . In a sea with the particular configuration of the North Sea, and in view of the particular geographical situation of the Parties' coastlines upon that sea, the methods chosen by them for the purpose of fixing the delimitation of their respective areas may happen in certain localities to lead to an overlapping of the areas appertaining to them. The Court considers that such a situation must be accepted as a given fact and resolved either by an agreed, or failing that by an equal division of the overlapping areas, or by agreements for joint exploitation, the latter solution appearing particularly appropriate when it is a question of preserving the unity of a deposit.
∗ ∗ ∗
100 . The Court has examined the problems raised by the present case in its own context, which is strictly that of delimitation. Other questions relating to the general legal régime of the continental shelf, have been examined for that purpose only. This régime furnishes an example of a legal theory derived from a particular source that has secured a general following. As the Court has recalled in the first part of its Judgment, it was the Truman Proclamation of 28 September 1945 which was at the origin of the theory, whose special features reflect that origin. It would therefore not be in harmony with this history to over-systematize a pragmatic construct the developments of which have occurred within a relatively short space of time.
∗ ∗ ∗ ∗ ∗
101 . For these reasons,
by eleven votes to six,
finds that, in each case,
(A) the use of the equidistance method of delimitation not being obligatory as between the Parties; and
(B) there being no other single method of delimitation the use of which is in all circumstances obligatory;
(C) the principles and rules of international law applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the agreements of 1 December 1964 and 9 June 1965, respectively, are as follows:
(1) delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other;
(2) if, in the application of the preceding sub-paragraph, the delimitation leaves to the Parties areas that overlap, these are to be divided between them in agreed proportions or, failing agreement, equally, unless they decide on a régime of joint jurisdiction, user, or exploitation for the zones of overlap or any part of them;
(D) in the course of the negotiations, the factors to be taken into account are to include:
(1) the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features;
(2) so far as known or readily ascertainable, the physical and geological structure, and natural resources, of the continental shelf areas involved;
(3) the element of a reasonable degree of proportionality, which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations between adjacent States in the same region.
Done in English and in French, the English text being authoritative at the Peace Palace, The Hague, this twentieth day of February, one thousand nine hundred and sixty-nine, in four copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Federal Republic of Germany, to the Government of the Kingdom of Denmark and to the Government of the Kingdom of the Netherlands, respectively.
(Signed) J. L. Bustamante R.,
(Signed) S. Aquarone,
Judge Sir Muhammad Zafrulla Khan makes the following declaration:
Judge Sir Muhammad Zafrulla Khan
2 The essence of the dispute between the Parties is that the two Kingdoms claim that the delimitation effected between them under the Agreement of 31 March 1966 is binding upon the Federal Republic and that the Federal Republic is bound to accept the situation resulting therefrom, which would confine its continental shelf to the triangle formed by lines A-B-E and C-D-E in Map 3. The Federal Republic stoutly resists that claim.
3 Not only is Article 6 of the Geneva Convention of 1958 not opposable to the Federal Republic but the delimitation effected under the Agreement of 31 March 1966 does not derive from the provisions of that Article as Denmark and the Netherlands are neither States “whose coasts are opposite each other” within the meaning of the first paragraph of that Article nor are they “two adjacent States” within the meaning of the second paragraph ofthat Article. The situation resulting from that delimitation, so far as it affects the Federal Republic is not, therefore, brought about by the application of the principle set out in either of the paragraphs of Article 6 of the Convention.
4 Had paragraph 2 of Article 6 been applicable to the delimitation of the continental shelf between the Parties to the dispute, a boundary line, determined by the application of the principle of equidistance, would have had to allow for the configuration of the coastline of the Federal Republic as a “special circumstance”.
5 In the course of the oral pleadings the contention that the principle of equidistance cum special circumstances had crystallized into a rule of customary international law was not advanced on behalf of the two Kingdoms as an alternative to the claim that that principle was inherent in the very concept of the continental shelf. The Judgment has, in fairness, dealt with these two contentions as if they had been put forward in the alternative and were thus consistent with each other, and has rejected each of them on the merits. I am in agreement with the reasoning of the Judgment on both these points. But, I consider, it is worth mentioning that Counsel for the two Kingdoms summed up their position in regard to the effect of the 1958 Convention as follows:
“… They have not maintained that the Convention embodied already received rules of customary law in the sense that the Convention was merely declaratory of existing rules. Their position is rather that the doctrine of the coastal State's exclusive rights over the adjacent continental shelf was in process of formation between 1945 and 1958; that the State practice prior to 1958 showed fundamental variations in the nature and scope of the rights claimed; that, in consequence, in State practice the emerging doctrine was wholly lacking in any definition of these crucial elements as it was also of the legal régime applicable to the coastal State with respect to the continental shelf; that the process of the definition and consolidation of the emerging customary law took place through the work of the International Law Commission, the reaction of governments to that work and the proceedings of the Geneva Conference; that the emerging customary law, now become more defined, both as to the rights of the coastal State and the applicable régime, crystallized in the adoption of the Continental Shelf Convention by the Conference; and that the numerous signatures and ratifications of the Convention and the other State practice based on the principles set out in the Convention had the effect of consolidating those principles as customary law.”
6 If it were correct that the doctrine of the coastal State's exclusive rights over the adjacent continental shelf was in process of formation between 1945 and 1958 and that in State practice prior to 1958 it was wholly lacking in any definition of crucial elements as it was also of the legal régime applicable to the coastal State with respect to the continental shelf, then it would seem to follow conclusively that the principle of equidistance was not inherent in the concept of the continental shelf.
Judge Bengzon makes the following declaration:
1 I regret my inability to concur with the main conclusions of the majority of the Court. I agree with my colleagues who maintain the view that Article 6 of the Geneva Convention is the applicable international law and that as between these Parties equidistance is the rule for delimitation, which rule may even be derived from the general principles of law.
President Bustamante y Rivero, Judges Jessup, Padilla Nervo and Ammoun append Separate Opinions to the Judgment of the Court.
Vice-President Koretsky, Judges Tanaka, Morelli, Lachs and Judge ad hoc Sørensen append Dissenting Opinions to the Judgment of the Court.
(Initialled) J. L. B.-R.
(Initialled) S. A.
Separate Opinion of Judge Jessup
1 I concur in the Judgment of the Court and especially in its conclusion that the equidistance method or principle is not established as obligatory in international law. It would be possible to emphasize by more detailed quotations how crystal clear it is that neither the International Law Commission nor its Committee of Experts considered that “equidistance” was prescribed by existing law or that it was a concept inherent in the very nature of the continental shelf.
2 In my opinion, more extended discussion than is to be found in the Judgment of the Court may usefully be devoted to what, in the words of Counsel for Denmark and the Netherlands, are “some of the realities of the ‘just and equitable share’ in the present cases”. At the same time, I agree with the Court that the contentions of the Federal Republic in favour of this concept cannot be accepted in the form given to them.
3 Although, for reasons which were not fully disclosed, but which may be surmised, the Parties in this case chose to deal obliquely in their pleadings with the actuality of their basic interests in the continental shelf of the North Sea, it is of course obvious that the reason why they are particularly concerned with the delimitation of their respective portions is the known or probable existence of deposits of oil and gas in that seabed.
4 The North Sea is one of the great historic fishing grounds of the world, but there is no indication in the pleadings of the Parties in this case that, in connection with delimiting the shelf, they were in any way concerned about control over such living organisms as are described in paragraph 4 of Article 2 of the 1958 Convention on the Continental Shelf.
5 In addition to the Parties in this case, Great Britain and Norway are also actively interested in the exploitation of North Sea oil and gas, but the petroleum industry has not evinced any interest in the area of the continental shelf appertaining to Belgium or to France.
6 As indicated in the Court's Judgment, a series of seven international bilateral agreements among pairs of the littoral States have plotted lines delimiting portions of the shelf which the Parties consider to be appurtenant to themselves and to each other. In these various areas during the last five years, there has been a steadily increasing activity in the exploration and drilling for oil and gas, although private interests for a time naturally hesitated to make the very large investments required1 until the enactment of national laws revealed the terms on which concessions would be granted2 and until the settlement of disputed national claims to certain areas. The ambivalence which characterized the pleadings of the Parties in regard to the relevance of the mineral resources of the continental shelf will appear from a few passages in both the written and the oral pleadings.
The Federal Republic of Germany
7 The Memorial of the Federal Republic, in Part 1, Chapter I, opens with a physical description of the continental shelf of the North Sea. It notes (in section 7):
“After the discovery of a very rich field of natural gas near Slochteren in the Dutch province of Groningen close to the mouth of the Ems, the first test drillings were made in 1963. Since then a number of finds have been made, including several exploitable deposits of natural gas in the British area …”
References are made to various governmental acts of Denmark, the Federal Republic, Great Britain and the Netherlands, relative to future development of these mineral resources (sections 12–15).
8 As the Memorial (in Chapter 1 of Part II) begins to develop the legal theory of “the just and equitable share”, there is clear reference to natural resources (sections 29 and 30). The emphasis on resources is strengthened in sections 34 and 35 especially by the invocation of the law on the apportionment of the waters of a river basin. In section 48, Judge Hudson is quoted as stating that “the economic value of proven deposits of minerals” should be taken into consideration in the delimitation of the continental shelf. In section 66, one reads:
“From the point of view of exploitation and control of such submarine areas, the decisive factor is not the nearest point on the coast, but the nearest coastal area or port from which exploitation of the seabed and subsoil can be effected. The distance of an oil, gas or mineral deposit from the nearest point on the coast is irrelevant for practical purposes, even for the laying of a pipe-line, if this point on the coast does not offer any possibilities for setting up a supply base for establishing a drilling station or for the landing of the extracted product.”
9 As the Memorial proceeds to develop the argument about “special circumstances”, there are references and quotations to the effect that the location of “indivisible deposits of mineral oil or natural gas” may constitute such circumstances (section 70). These references are repeated in section 79, where it is said that—
“the literature on the subject attributes relevance also to historical, economic, and technical factors, in particular to the geographical distribution of the mineral resources of the continental shelf and to the maintenance of the unity of their deposits”3.
It is not wholly clear from the text, however, whether this is the “geographical criterion” to which the Federal Republic would attribute primary importance. However, in the following section, the Memorial, in arguing for the “principle of equality”, asserts that all the coastal States of the North Sea are interested, inter alia, “in the appropriate exploitation of the mineral deposits of the seabed in order to avoid wasteful or harmful methods of extraction which would lead to despoliation”. Here reference is made to the Supplementary Agreement of 14 May 1962 to the German-Netherlands Ems-Dollard Treaty of 8 April 1960, which provides for joint exploitation and sharing of costs and profits in the Ems Estuary4.
10 Finally the Memorial, in section 95, at least hints that the Court would be free to indicate that the location of mineral resources may be one of the criteria to be taken into account “in order to achieve a just and equitable apportionment”.
11 In the Reply (section 31) there is a discussion of allegations in the Danish Counter-Memorial to the effect that the Federal Republic had been influenced by recently acquired knowledge of the prospects for finding oil and gas in the continental shelf. The Reply asserts that—
“the German explorations referred to in the Counter-Memorial could not possibly provide the Federal Republic of Germany with reliable information about the existence of oil and gas deposits in the disputed area. Only actual drilling as undertaken in 1967 under a Danish concession, might have resulted in such information.”
It is added that “German explorations were stopped on the request of the Danish Government in the disputed area” but that the latter granted drilling concessions there.
12 Chapter I of the Danish Counter-Memorial at once draws attention to the interest in mineral resources by leading off in section 7 with a somewhat detailed discussion of explorations and drillings in the North Sea beginning as early as 1963 with the single Danish concessionnaire making its first drillings in 1966. The reader is referred to Annex 7 of the Counter-Memorial which is a memorandum by the Adviser to the Danish Concessionnaire together with a map showing the location of what then (1967) were deemed the most promising locations for wells. The memorandum also called attention to the existence of a ridge extending about 220 kilometres into the North Sea known as the “Fyn-Grindsted High”. It is stated that due to its geological structure, this ridge is “considered devoid of hydrocarbon prospects of importance, and … consequently reduces the prospective area of Denmark and the Danish North Sea continental shelf considerably”. In Chapter II of the Counter-Memorial, sections 14–16 set forth further details concerning exploration and exploitation of oil and gas in the continental shelf area claimed by Denmark, including mention of the 1963 concession to the A. P. Møller Companies. In Chapter II, sections 21 and 22 describe German explorations in the North Sea continental shelf “including the southern part of the Danish shelf area”. Reference is made to the Danish protest and assertions which have been mentioned in connection with the Reply of the Federal Republic. It is also remarked that the German proclamation of 1964 concerning the exclusive rights in the continental shelf was probably inspired by press reports that an American company5 was planning to drill outside the German territorial sea.
13 In sections 31 and 34, which deal with the negotiations between Denmark, the Federal Republic and the Netherlands, reference is made to the German suggestions of possible joint utilization of resources in certain areas, but no opinion is expressed.
14 Later, in section 49, the Danish Counter-Memorial argues that the German Memorial confuses the question of “space” with the question of “resources” and in this connection rejects the invoked analogy of the waters of a river basin.
15 In section 125, the Danish Counter-Memorial replies to the point made in section 66 of the German Memorial to the effect that the important coastal point must be one useful in connection with drillings and extractions of minerals. The Counter-Memorial states that—
“experience shows that, if a deposit is exploited, the nearest points on the coast, even if theretofore unused or scarcely inhabited, may be developed into important elements of support for the exploitation …”.
In section 149 there is reference to certain bilateral agreements between North Sea States providing for consultation in regard to the exploitation of resources bordering the boundary line6.
16 The Counter-Memorial of the Netherlands, like that of Denmark, but in less detail, opens Chapter I with some references to the early drillings in the North Sea. The discussion is expanded in section 11, showing that gravity measurements and seismic explorations had been conducted by Netherlands interests (especially Nederlandse Aardolie Maatschappij—N.A.M.) in the North Sea since 1956. Since 1960 “these activities have been especially concentrated on the northern part and up to the median lines which separate the Netherlands part from the German and Danish parts of the shelf”. Between August 1962 and 1966, a total of 24 licences had been granted to about 19 companies or groups of companies representing American, Belgian, British, French, German and Italian interests; these licences “cover all of that part of the continental shelf which comes under the jurisdiction of the Netherlands on the basis of the equidistance principle”.
17 Further licences have been issued since the new Netherlands legislation went into effect in early 1967. Figure 2 on page 315 of the Netherlands Counter-Memorial shows the charting of the blocks for which licences are granted.
18 In section 18, the Counter-Memorial explains that the domestic legislation and international agreements of the Netherlands—
“take into account the possibility of the presence of single geological structures extending across the dividing line between parts of the continental shelf under the North Sea”.
19 Section 29 refers to the Special Agreement with the Federal Republic concerning co-operative activities in the Ems Estuary where the international frontier “has been disputed for centuries”.
20 As in section 49 of the Danish Counter-Memorial, the Netherlands Counter-Memorial in section 43 replies to the German argument invoking the rules on sharing waters of a river-basin. Similarly, section 119 develops the same argument as that in the Danish Counter-Memorial in section 125, in respect of the relative importance of various points on the coast. Likewise, in section 143, one finds the discussion of special agreements covering situations in which there are “indivisible deposits of mineral oil or natural gas”.
21 The Common Rejoinder of Denmark and the Netherlands adds little to the general picture already presented. But in section 20, where the issue of the distinction between “space” or “area” and “resources” is further developed, it is stated that—
“there is no necessary connection between the surface of an area and the amount of exploitable resources therein. … Indeed the total amount of the natural resources of the area, indicated as the continental shelf beneath the North Sea, is unknown and the same goes for the location of those resources.”
22 In section 21, where there is further rebuttal of the argument based on the use of waters of international rivers, there is the following statement which is not lacking in significance:
“Surely it is possible that a single geological structure extends across a boundary line on the continental shelf, as it is possible that a single geological structure extends across the delimitation lines between concession areas on the part of the continental shelf appertaining to one State. Both municipal legislations and the international practice of States show that the problems arising from such a situation are not solved by a modification of the boundaries of the concession area or of the continental shelf as the case may be, but by different methods which do not affect those boundaries. In this connection reference is made to paragraph 18 of the Netherlands Counter-Memorial …”
—which deals with consultations in case of imbrications or overlaps. Section 22 argues that the Federal Republic itself renounced basing its claim on the sharing of “resources”.
23 In section 51, it is recalled that in both the Counter-Memorials (Danish, paragraph 88 and Netherlands, paragraph 82) it had been pointed out that there had not been much occasion for States to make treaties concerning lateral boundaries “before the question of exploiting the mineral resources of the seabed and subsoil arose”.
24 It is apparent from the above extracts that the problem of the exploitation of the oil and gas resources of the continental shelf of the North Sea was in the front of the minds of the Parties but that none of them was prepared to base its case squarely on consideration of this factor, preferring to argue on other legal principles which are sometimes advanced with almost academic detachment from realities.
25 In the oral proceedings, there are a number of statements which are of interest in considering whether the known or probable location of mineral resources is a key factor.
26 From the side of the Federal Republic, its Agent, in his opening address on 23 October stated flatly:
“The main consideration that influences State practice in the acquisition and delimitation of continental shelf areas is the idea of getting a share in the potentialities of the continental shelf that have accrued to the coastal States by the progress of modern technology.”
27 All of these various but often ambivalent references to the natural resources of the shelf, considered in the light of the German argument for a “just and equitable share”, led one Member of the Court to put the following question to the Agent of the Federal Republic on 25 October:
“Will the Agent of the Federal Republic of Germany, at a convenient time, inform the Court whether it is the contention of the Federal Republic of Germany that the actual or probable location of known or potential resources on or in the continental shelf, is one of the criteria to be taken into account in determining what is a ‘just and equitable share’ of the continental shelf in the North Sea?”
28 The German Agent replied to this question on 4 November in the following terms:
“In response to this question I would like to state the following: First, the criteria to be taken into account in determining what is a just and equitable share of the continental shelf are primarily, but not exclusively, geographical factors. The consideration of other factors and the weight which should be attributed to them depends on their merits under the circumstances of the concrete case.
Secondly, if, as in the North Sea, there is no reliable information about the actual location of economically exploitable resources of considerable importance, the geographical situation alone determines the equitable apportionment. Once agreement had been reached on the delimitation of the continental shelf, later knowledge as to the location of such resources should not affect the agreed boundary.
Thirdly, economically' exploitable resources of considerable importance, located in areas where the boundary is disputed or yet undetermined may, under the principle of the just and equitable share, be taken into account in determining the allocation of areas to one or the other State. This may be accomplished either by changing the course of the boundary line, or by means of joint exploitation if the latter is feasible. Such a case may arise in particular if the boundary line would cut across a single deposit. Since there are no such resources in the North Sea, the delimitation of the continental shelf should be made on the basis of the geographical situation, along the lines suggested by the Federal Republic of Germany. (Emphasis supplied).
In this context, I may add that the simplest way to have achieved an equitable apportionment with respect to known or unknown resources would have been to place the areas of the continental shelf of the North Sea situated farther off the coast under a régime of joint control and exploitation. The Federal Republic had advocated such a solution in the earlier stages of the negotiations: since the North Sea States had begun to divide the continental shelf among themselves by boundaries, such a situation seems to be outside the realm of reality. In the present situation, a division by sectors reaching the centre of the North Sea is an effective way to give the Parties an even chance with respect to the potentialities of the continental shelf.”
29 It is difficult to reconcile the statement that “there are no such resources in the North Sea”, i.e., where the boundary line would cut across a single deposit, with the statement that “there is no reliable information about the actual location of economically exploitable resources of considerable importance” in the North Sea. Presumably the Agent had in mind only that part of the North Sea which is in dispute in this case.
30 Subsequently, on the same day, the German Agent made the following comments:
“If there are several States adjacent to the same continental shelf, this transfer of jurisdiction [to the exclusive jurisdiction of the coastal States] involves a partitioning, among those States, of area, and the potential resources therein, which have accrued to the coastal State from the common fund of mankind. The making of such an apportionment implies that the self-evident principle of the just and equitable share must be given effect. The necessary criteria will have to be developed from the concept of the continental shelf and adapted to the situation of the particular case.” (Emphasis supplied.)
31 Then, after further invocation of the rules for the uses of waters of international rivers:
“As I have … pointed out … the delimitation of continental shelf areas is in its essence not a mere extension of sovereignty. It is primarily a distribution of submarine areas in which each coastal State is given an exclusive right to exploit the potential resources of those areas. Since the resources of the continental shelf which have to be distributed among several adjacent States are as much limited as are the resources of an international water-basin, the law is in both cases faced with the same problem, namely the equitable distribution of such resources.”
32 The sum total of these comments is somewhat ambiguous when one seeks a direct answer to the question posed by a Member of the Court. Nor is the matter greatly clarified by noting certain remarks of Professor Oda, Counsel for the Federal Republic. On 25 October Professor Oda cited an agreement between Iran and Saudi Arabia concerning a disputed offshore area whereby they did not divide the area—
“by a median line or another geometrical demarcation but rather by a novel, so-called ‘economic’ solution. This has been done by dividing all of the ‘recoverable oil’ in the previously disputed area into two equal parts. Ideas which had been advanced earlier, of dividing the “oil in place’ were discarded. The equal share now relates instead to all ‘recoverable oil’ contained in the pertinent geological structure.”
33 On the other side, argument for Denmark and the Netherlands did not fail to take account of the realities of the location of resources of oil and gas. On 28 October, the Agent for Denmark made the following statement:
“At the same time the Danish Government must consider this case as being of the utmost importance. Denmark has so far had no natural resources or riches. In the modern search for oil and gas extensive exploration has taken place without positive results, apart from the fact that not very far north of the boundary line in question oil and gas have been found. Even if it is not yet known whether commercial exploitation is possible, the position of the boundary line must be considered as being of the utmost importance.”
34 On 31 October, the Netherlands Agent hinted, as had the Agent for the Federal Republic, at the possibility of certain difficulties being overcome by means other than changing a boundary line, scilicet, by joint exploitation. He said:
“In both cases there may be said to be an element of artificiality in part of the truly equidistant boundary line … Furthermore, international law and practice demonstrate that there are other means of solving the problems arising from the artificiality of boundary lines—other means than the drawing of a different boundary line.
In this connection, I may make reference, by way of. example, to the United Kingdom/Netherlands Agreement concerning the exploitation of single geological structures overlapping the boundary line.”
35 On 7 November the same Agent, after dealing again with the invocation of the rules governing the use of the waters of international rivers, said that while the Federal Republic relied on those rules—
“at the same time and on the other hand does not consider the actual or probable location of known or potential resources on or in the continental shelf in the North Sea as one of the criteria for its scheme of so-called equitable apportionment. This, at least [said the Agent] seems to be the upshot of the reply given by the learned Agent of the Federal Republic to one of the questions …”
put by a Member of the Court, as described heretofore.
36 On the last day of the oral proceedings, 11 November, Counsel for Denmark and the Netherlands, in the course of a somewhat satirical discussion of what he called the “macrogeographical” approach, made a somewhat detailed comparison of the economic and particularly of the mineral resources of the three States parties to the case. He noted that the Federal Republic “has been rich in mineral and fuel” whereas, “until recently, the Netherlands had quite minor mineral and fuel resources”. Denmark, in turn, “in the past had altogether negligible mineral and fuel resources”. He continued to note that the Netherlands in recent years has uncovered “important sources of natural gas and some crude oil”7. As for Denmark, its economic position—
“might be transformed if oil or natural gas now became available to her in the continental shelf. In this connection the Court was informed, in Chapter I of Part I, and in Annex 7 of the Danish Counter-Memorial, that the quite extensive exploration already carried out indicates that the only areas of promise so far discovered lie just to the north, on the Danish side, of the Danish equidistance boundary. In short, the stretching of the Federal Republic's continental shelf to the so-called centre of the North Sea in the manner demanded by our opponents may well have the result of cutting off Denmark from the one reasonable expectation which she has of acquiring appreciable domestic sources of energy.”
All of these observations, Counsel informed the Court, were presented “only to indicate some of the realities of the ‘just and equitable share’ in the present cases”. Finally, he was more dogmatic in asserting that the German Agent's reply to the question from a Member of the Court constituted an agreement that the Court has only to consider “geographical factors”; in other words he was maintaining that despite his own observations on relative wealth of the three States in mineral fuel resources, the Court was not called upon to take such resources in the continental shelf into account if it sought to determine what is a “just and equitable share”.
37 Although the arguments in the pleadings were deflected by the Parties away from outright reliance on the location of hydrocarbons under the North Sea, their bilateral and trilateral negotiations were specifically related to such resources and indicated that more was known about their location than the pleadings indicate8.
38 The Government of the Federal Republic made it clear from the outset (that is, in the spring of 1964) that it was primarily interested in reaching an agreement with the Netherlands in the area close to shore so that “the German oil companies will be able to commence drilling operations at the points near the coast in which they are at present mainly interested”. (German Docs., No. 8.) The area in question was seaward of the Ems Estuary beyond that part already covered by the 1962 agreement for co-operative exploitation of the mineral resources there. Both Governments noted that national legislation had not yet been enacted and that there was danger of an “uncontrolled and hence probably inefficient hunt for oil and gas”. But the ultimate reach of the dividing line between the two national areas in the North Sea was always reserved, it being noted that the value of various areas was still unknown. The situation was summarized in a paper dated 10 August 1964, prepared for the Cabinet of the Federal Republic:
“However, in view of the drilling operations for natural gas started by a German syndicate this summer in the western part of the German Bight, an early settlement of the boundary problem in the coastal area was urgently required. Hence the first step was to agree with the Netherlands on the partial boundary laid down in the present draft treaty; it does not prejudice the further course of the boundary in view of the reservations stated by both Parties in the attached Joint Minutes of the Negotiations of 4 August 1964, and it clarifies the situation in the area near the coast on which the German mineral oil industry sets great hopes in view of the large natural gas deposits found in the Netherlands northern province of Groningen.” (German Docs., p. 23.)
The agreement was concluded on 1 December 1964.
39 From the point of view of the Government of the Federal Republic:
“As far as can be judged at this stage [6 October 1964], the talks with Denmark will not be of the same economic importance as those with the Netherlands, as so far there are no definite suppositions that any mineral oil and natural gas deposits worth prospecting are to be found in the German-Danish boundary area …” (German Docs., p. 26.)
40 On the Danish side, the concessionnaire, A. P. Møller Companies, Ltd., who worked closely with the Government, shared a view which had been expressed in the Netherlands-German negotiations, namely that the German-Netherlands inshore agreement was due to pressure from the oil companies, and that the German-Danish boundary area held very slight prospects.
41 According to a Danish Government memorandum dated 17 February 1965:
“At a meeting held to deal with the question of continuing the negotiations with Germany and attended by representatives of the Ministry of Foreign Affairs, the Ministry of Public Works, and the Danish Syndicate which has been granted an exclusive concession to explore and exploit deposits of hydrocarbons in the Danish underground and the continental shelf, the representative of the Syndicate said that it was not actually or concretely interested in having established a Danish-German equidistance line of demarcation in the North Sea area next to the coast, because in view of the results of the explorations made in that area and in view of other information available it was to be assumed that there was only little likelihood of finding deposits of gas or oil there; the Syndicate would not be particularly active there. However, there were appreciably greater possibilities of finding deposits of gas or oil further to the west, i.e. towards the middle of the North Sea in the border regions adjacent to Germany, the Netherlands, and Great Britain. The Syndicate is particularly interested in that area, which area would naturally be lost if the German aspirations were realized.” (Danish Docs., p. 6.)
The concessionnaire accordingly hoped that Danish-Netherlands negotiations would begin soon. But the Danish-German inshore agreement was signed on 9 June 1965 and the Danish-Netherlands agreement was not signed until 31 March 1966, after the close of the tripartite negotiations.
42 It is of course true that there is no rule of international law which requires States surrounding an area such as the North Sea to delimit their respective sections of the continental shelf in such a way as to apportion to each State a “fair share” of the mineral resources on or in that shelf. Such a rule would be impossible of application since it would require as a condition precedent precise knowledge of the location and size or productivity of all parts of the area. Such knowledge is not complete for the North Sea even today, some five years after numerous wildcat operations were undertaken; scientific surveys had begun much earlier, and the Slochteren discovery goes back to 1959. The first British licences for drilling in the North Sea were granted in 1964; the first Dutch licences were issued between 1962 and 1966. The Danish concession was extended to the continental shelf in October 1963 but the first wells spudded in were not commercially exploitable. As already noted, more promising results are now indicated in drillings slightly north of the Danish-German “equidistance” line. In the German sector, 11 or 12 dry holes were drilled in three years, 1964–1967.
43 If the argument for a “just and equitable share” had been rested on a notion of apportioning natural resources, the counter-argument might have insisted (as indeed it hinted) that resources on the adjacent mainland or in the bed of the territorial sea must also be taken into account. This would have been disadvantageous to the Federal Republic because of its terrestrial supplies notably between the Dutch frontier and the River Weser.
44 It has been stated that “the oil industry is strictly international” and in many of the explorations in the continental shelf in the North Sea the interests of one petroleum company are not confined to a single national sector and are frequently blended in a group or consortium which may contain as many as a dozen separate companies. The same drilling rigs, barges or platforms are chartered to operate first in one national sector and then in another.
“The process of exploring acreage which has already been explored by another company using different ideas and with different hypotheses goes on continually. It frequently happens that significant discoveries of oil and gas are made on acreage which a competitor has given up after completing what he considers an adequate exploration programme.” (North Sea Gas, [U.K.] Labour Party: Report of the North Sea Study Group (August 1967), p. 15.)
45 However, the interests of the petroleum companies are, of course, not identical with those of the Governments of the several States. The latter are concerned with the national revenue to be derived from fees, taxes, royalties or profit-sharing, with increases in national productivity, and also with the impact on the national balance of payments if imports of fuels to meet domestic needs are eliminated or reduced by the production of natural gas in the State's portion of the continental shelf.
46 The Court must assume that the Parties have acted in good faith. This means that Denmark and the Netherlands, in concluding their delimitation agreement on 31 March 1966, believed that their action, which was based on the equidistance method, was justified by existing international law. In my view it would not be equitable to take the position that since the Court has now held that the equidistance method has not been made obligatory by international law, any acts such as the granting of licences or concessions in the areas of the shelf claimed by Denmark or the Netherlands are to be treated as null and void ab initio. Rather, I think there should be applied the following conclusion of the Arbitral Tribunal which, in the Grisbadurna case, on 23 October 1909, decided the delimitation of a certain part of the maritime frontier between Norway and Sweden:
“… in the law of nations, it is a well established principle that it is necessary to refrain as far as possible from modifying the state of things existing in fact and for a long time; … that principle has a very particular application when private interests are in question, which, once disregarded, can not be preserved in an effective manner even by any sacrifices of the State, to which those interested belong …” (Wilson, The Hague Arbitration Cases, 1915, pp. 111, 129).
47 The Parties to the instant case have in effect recently acted upon this same principle in respecting habitual fishing practices: Fisheries Convention of 9 March 1964, Articles 3 and 4, 581 United Nations Treaty Series, pages 58, 60. That Convention provides for a transitional period in which such established rights may be phased out, a provision which would not be suitable in dealing with drilling operations already undertaken. But it may also be noted that while in the Grisbadarna case the Tribunal spoke of a state of things “existing … for a long time”, the Fisheries Convention considers as “habitual”, exploitations during a period of ten years. Considering the rapidity of the progress of exploitation in the petroleum industry in the North Sea, no restrictive limit should be placed on the elapsed time. The existence of actual drilling or exploitation in a certain place cannot be considered in the present circumstances to base a title on prescription, or on prior user or occupation; nor is it to be assimilated to “historic title” which is mentioned as a “special circumstance” in Article 12 of the 1958 Convention on the Territorial Sea. Nevertheless, the Parties might well bear in mind a provision in the 1897 treaty between Great Britain and Venezuela which provided that:
“In determining the boundary line, if territory of one party be found by the tribunal to have been at the date of this treaty in the occupation of the subjects or citizens of the other party, such effect shall be given to such occupation as reason, justice, the principles of international law, and the equities of the case shall, in the opinion of the tribunal, require.” (5 Moore, International Arbitrations, p. 5018.)
48 In any event, an agreed delimitation of the continental shelf by the three States in conformity with the Judgment of the Court, would not seem to impinge upon most of the areas which have already proved productive, but would involve an area for wildcatting. In the British sector, the major producing fields, e.g., Leman Bank and Indefatigable Bank, are located south of the 54th degree of latitude and between 2° and 3° E. The West Sole Field and the Hewett Field are even further to the west. All of these lie to the west of the median line between the Federal Republic and Great Britain. The widely heralded, but still unproved, Mobil gas strike in November 1968 in Netherlands Block P-6, is south of the 53rd parallel and therefore not in an area to which the Federal Republic could justly lay claim. The productive locations in the Norwegian sector are north of the median line between the Federal Republic and Norway. The promising locations in the Danish sector could be involved in a new delimitation of the Federal Republic's portion, and to them the Grisbadarna principle might, in all equity, be applied. These would seem to be the only locations where exploitation has already produced promising results, within the limits of the sector delineated in the chart No. 6 introduced by the Agent of the Federal Republic on 4 November 1968. This sector is marked by the lines B-F and D-F on map No. 3 which is included in the Judgment of the Court. The Agent of the Federal Republic stated that “the present claim of the Federal Republic of Germany is within the limits of such an equitable sector”. He stated that they accepted or acquiesced in the partial boundary lines agreed upon with the Netherlands on 1 December 1964 and with Denmark on 9 June 1965. Accordingly, any possible claim to the shelf north of the Danish line or west of the Netherlands line must be deemed to be relinquished. Moreover, the westernmost point of such a German triangular sector could not justifiably lie to the west of the true median line between the Federal Republic and the United Kingdom, or to the north of the true median line between the Federal Republic and Norway.
49 However, as the Judgment of the Court points out, there will be areas in which, in accordance with rules and principles indicated by the Court, two States may have equally justifiable claims, or, in other words, areas in which those claims will overlap. As the Court indicates, in such situations the solution may be found in an agreed division of the overlapping areas or in an agreement for joint exploitation “the latter solution appearing particularly appropriate when it is a question of preserving the unity of a deposit” (paragraph 99).
50 Of the existing North Sea agreements relating to joint exploitation and mentioned in paragraph 97 of the Judgment of the Court, that between the Netherlands and the Federal Republic applying to the Ems Estuary is, as already noted, the most complete example of full co-operation in both exploitation and profit-sharing. The Agreement of 6 October 1965 between the Netherlands and the United Kingdom calls for consultation on the most effective exploitation of overlapping deposits and on “the manner in which the costs and proceeds relating thereto shall be apportioned”. If the two Governments fail to reach agreement, the matter is to be referred, at the request of either one, to an arbitrator whose decision is binding. If licensees are involved, their proposals are to be considered by the Governments. The other agreements in general call for consultation with a view to agreement; in the United Kingdom-Norway Agreement of 10 March 1965 there is again provision for consulting any licensees.
51 Outside the North Sea, the problem of a deposit extending across a boundary line is dealt with in a similar manner in the Agreement between Italy and Yugoslavia of 8 January 1968 concerning the delimitation of their respective areas of the intervening continental shelf in the Adriatic. In the Persian Gulf, there are examples of agreements for shared exploitation and shared profits at least in the Kuwait-Saudi Arabia Agreement of 7 July 1965, and the Bahrein-Saudi Arabia Agreement of 22 February 1958. An equal division of recoverable oil seems to have been provided for in a recently initialled agreement between Iran and Saudi Arabia which was mentioned by both sides in the oral proceedings.
52 Most of the North Sea agreements, and the agreement in the Adriatic, specifically relate to a deposit which extends across a boundary line, but the German-Dutch Agreement on the Ems Estuary and agreements in the Persian Gulf provide for joint exploitation or profit-sharing in areas of considerable extent where the national boundaries are undetermined or had been recently agreed upon subject to the provision for joint interests, as particularly in the case of the Partition of the Neutral Zone. Therefore, while, as the Court states, the principle of joint exploitation is particularly appropriate in cases involving the principle of the unity of a deposit, it may have a wider application in agreements reached by the Parties concerning the still undelimited but potentially overlapping areas of the continental shelf which have been in dispute.
53 Nor is it irrelevant to recall that the principle of international co-operation in the exploitation of a natural resource is well established in other international practice. The Federal Republic invoked the Helsinki Rules of the International Law Association concerning the sharing of the waters of a river basin traversing or bordering more than one State. Whether or not those Rules are the most accurate statement of the existing international law, as to which I express no opinion, there are numerous examples of co-operative use and of sharing of fluvial resources. The history of ocean fisheries is full of examples of co-operative agreements and the Preamble of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas recites—
A striking example of co-operation in the exploitation of a living resource is the Convention between the United States, Canada. Japan and the Soviet Union concerning the fur seals of the North Pacific Oceans; the United States and the Soviet Union harvest the pelts and then share the proceeds with Canada and Japan (cf., 314 United Nations Treaty Series, 106).
54 On land, Austria and Czechoslovakia have agreed upon co-operative exploitation of an oil pool which crosses under the frontier, and as far back as 1866 Bolivia and Chile agreed to divide the produce of the guano deposits in an area where they were defining the common boundary.
55 Moreover, “Today, the municipal laws of most of the oil-producing nations of the world have passed through the earlier phases of non-regulation and limited co-relative rights and now contain specific provisions requiring co-operative development of a shared petroleum resource pool by all common interest-holders”. Many laws require the interested parties to “adopt a unitized plan of development under which competition is now altogether eliminated and co-operation is required on co-ordinating such points as number and spacing of wells tapping the same common source”. (Onorato, “Apportionment of an International Petroleum Deposit”, 17 International and Comparative Law Quarterly, 85 (1958).) The British and Norwegian, and apparently the Dutch regulations all provide for ministerial action to avoid irrational operation when a deposit underlies more than one concession area. Co-operative executive action for a like purpose deals with comparable situations across state borders in the United States. (Morris, “The North Sea Continental Shelf: Oil and Gas Legal Problems”. 2 The International Lawyer, 191, 210 ff. (1968).)
56 Clearly, the principle of co-operation applies to the stage of exploration as well as to that of exploitation, and there is nothing to prevent the Parties in their negotiations, pending final delimitations, from agreeing upon, for example, joint licensing of a consortium which, under appropriate safeguards concerning future exploitation, might undertake the requisite wildcat operations.
57 I am quite cognizant of the fact that the general economy of the Court's Judgment did not conduce to the inclusion of the detailed, and largely factual, analysis which I have considered it appropriate to set forth in this separate opinion, but I believe that what is slated here, even if it is not considered to reveal an emerging rule of international law, may at least be regarded as an elaboration of the factors to be taken into account in the negotiations now to be undertaken by the Parties. Beyond that, I hope it may contribute to further understanding of the principles of equity which, in the words of Judge Manley O. Hudson, are “part of the international law which it [the Court] must apply”. (Diversion of Water from the Meuse, P.C.I.J., Series A/B, No. 70, 1937, p. 77.)
58 I wish to state also that I associate myself with the points made in the Declaration of Judge Sir Muhammad Zafrulla Khan.
59 Difficult as the problems are, it is fortunate that the three States which confront them are expressly committed to various methods of amicable settlement. They are aware of their right, under Article 60 of the Statute, to return to this Court for further guidance, or they may, if the need should arise, resort to the procedures of arbitration and conciliation set forth in the treaties of 1926 which are cited in the Special Agreements of 2 February 1967.
(Signed) Philip C. Jessup.
Separate Opinion of President J. L. Bustamante Y Rivero
President J. L. Bustamante Y Rivero
1 . I share the opinions expressed in the text of the Judgment and the conclusions in its operative provisions, except so far as concerns paragraph 59, with regard to which 1 must express the reservation that will be found below. Nevertheless, I believe it to be possible to state some further considerations in support of certain principles and rules of law upon which the Parties might also base themselves for the purpose of carrying out the delimitation, the effecting of which they have reserved to themselves by Article 1, paragraph 2, of the Special Agreements whereby the Court was seised.
2 . The reasoning I have followed in drawing up the present opinion was the following: although the institution of the continental shelf is a new institution, it is the fact that its application has now become very widespread. Numerous States, in all continents, have adopted its fundamental principles into their legislation and constantly apply them. In this sense, it is not going too far to say that the régime of the continental shelf has today a concrete existence and a growing vitality.
Since the governmental proclamations which lay at its origin (about 25 in number) have but rarely been challenged, but have, on the contrary, set a trend in motion, they have thereby acquired the character of relevant factors from the point of view of international law. While it is true that some proclamations formed the subject of reservations on the part of certain other States, those reservations arose from the fact that the rights proclaimed over the continental shelf gave to this concept an ambit which the objecting States considered excessive; it must consequently be concluded therefrom that the expression of such reservations merely constitutes further evidence of the effective nature of the institution from that time on. The writings of publicists have firmly supported the concept of the continental shelf and have recognized as legitimate its legal foundation, namely: the utilization of the natural resources of the seabed and subsoil for the benefit of the neighbouring peoples and of mankind in general. In several bilateral agreements, States have subsequently confirmed the system by adopting it for their mutual relations. Finally, the Geneva Conference tried to systematize the principles of the new institution in the 1958 Convention on the Continental Shelf and sought to define the methods by which they can be applied.
Having regard to the recent appearance of this new branch of maritime law and to the still limited and not always happy experience that has been had of its methods of application, it is understandable that some hesitation might have been felt with regard to the formal incorporation of all its principles and norms into general international law. It seems to me, however, that certain basic concepts, at any rate, the acceptance of which corresponds to a well-nigh universally held opinion, or the sense of which necessarily flows from the very concept of the continental shelf, are already sufficiently deeply anchored for such incorporation to be possible. This is, moreover, what the Judgment states so far as concerns, for example, the two principles set forth in paragraph 85, sub-paragraphs (a) and (b), the former referring to the obligation to negotiate incumbent upon the States concerned for the purposes of delimiting their continental shelves and the latter referring to the application of equitable principles for determining the rights of the participating parties. These two principles, expressly stated in the Truman Proclamation, respectively reflect the exclusive right of the State, as sovereign, itself to decide on the boundaries set to the national territory, and the need to introduce into the negotiations on the continental shelf, complex in themselves and frequently full of unforeseen factors, that factor of good faith and flexibility which equity constitutes and which reconciles the needs of peaceful neighbourly relations with the rigidity of the law. A third principle is laid down in the Judgment (paragraph 85, sub-paragraph (c)), when it considers as established the notion that the continental shelf of every maritime State is the natural prolongation of its land territory and must not encroach upon that which constitutes the natural prolongation of the land territory of another State. This concept of “prolongation” is also implicit in the expression “adjacent to the coast”, which is employed in the description of the continental shelf in Article 1 of the Geneva Convention of 1958. I shall demonstrate later that the concept of “prolongation”, which takes on the aspect of “convergence” in the particular geographical circumstances of closed seas, involves certain limitations regarding the drawing of the boundary line of the shelves situated in such seas.
3 . I am nevertheless of the opinion that besides the essential principles which I have just mentioned, it is possible to deduce others from the accepted concept of the continental shelf, whether they be sought in the Truman Proclamation or in Articles 1 and 2 of the Geneva Convention, or whether they be the logical and necessary consequence of adapting the basic principles to certain unavoidable geographical facts of which examples are to be found throughout the world. I have listed such possible supplementary principles below.
4 . The concept, already examined, of “natural prolongation” of the land territory of the coastal State implies, as an obvious logical necessity, a relationship of proportionality between the length of the coastline of the land territory of a State and the extent of the continental shelf appertaining to such land territory. Parallel with this, so far as concerns inter-State relations, the conclusion is inescapable that the State which has a longer coastline will have a more extensive shelf. This kind of proportionality is consequently, in my view, another of the principles embraced by the law of the continental shelf. The Judgment, in paragraphs 94 and 98, mentions this element as one of the factors to be taken into consideration for the delimitation of a shelf; the Court nevertheless did not confer upon it the character of an obligatory principle.
The preceding question leads quite naturally to that of the method to be applied for measuring the length of the coastline of the land territory of a State and, so far as concerns the continental shelf, I do not share the idea that that length must be measured as in the case of the territorial sea, from the low-water line. That criterion, laid down in the 1958 Convention, probably originates from the fact that the institution of the continental shelf is historically subsequent to that of the territorial sea and it was perhaps thought that an apparent similarity between the two cases rendered the adaptation thereof possible. In reality, the cases are different. The continental shelf, being but a natural prolongation of the land territory, forms an integral part thereof and is physically identified with it, so as to constitute a single land mass. A dividing line between the land territory and the shelf consisting of the low-water mark would be a boundary that would be variable, capricious and, furthermore, foreign to the concept of the continental shelf. After all, the low-water mark relates only to a changeable and irregular surface element, viz., the relief or topography of the coast. This uncertain element, subject to numerous physical and geographical circumstances, does not seem to be the most appropriate for defining the starting-point for a land mass such as the continental shelf, the close link between which and the land territory is beyond discussion. A more stable baseline must be found and it might be obtained by measuring the length of the coastline according to its general direction, by means of a straight line drawn between the two extreme points of the marine frontier of the State concerned. In paragraph 98, the Judgment mentions this solution as one of the possible solutions in the present case. I must add that the principle of equity, which would apply at the same time as one of the elements which must govern the delimitation to be effected, would enable any difficulty which might arise in practice to be surmounted.
I must deal here with another, very closely related, subject. Neither do 1 share the viewpoint of the Geneva Convention of 1958, according to which the continental shelf commences only beyond the outer limit of the territorial sea. Such a viewpoint seems to me artificial and even highly debatable, not only because it contradicts the idea of adjacency to the coast referred to in Article 1 of the Convention, but, above all, because it upsets the geological concept of the land territory of which the continental shelf is but a physical prolongation under the territorial sea and even beyond it. Geology admits neither a break nor an intermediate space between the coast of the land territory and the line where the continental shelf would be deemed to commence at the outer limit of the territorial sea. It seems to me that the truth is otherwise: that the territorial sea is superjacent to that part of the shelf which is closest to the coast. But there is no geological difference between the bed of the territorial sea and that part which extends beyond the outer limit of that sea. These two beds constitute in fact but a single geological formation: the continental shelf, the characteristic of which is to constitute an area of shallow depth in relation to the level of the superjacent sea, gradually prolongs the continent until the continental platform is reached, from which there is a sudden sharp drop to the great depths of the high seas.
5 . If, on the basis of the criterion adopted in the Convention, the possibility of utilizing the natural resources of the seabed and of its subsoil close to the coast was the determinant reason in the creation of the continental shelf, it goes without saying that certain fundamental principles must be stated which furnish a basis for the legal system governing the exploration and exploitation of those resources.
In my opinion, the fact of taking into consideration the existence or the location of natural resources in the area of a continental shelf, far from constituting in principle an essential factor for judging where to draw the boundary with a neighbouring shelf, rather entails the risk of constituting a disturbing factor to the detriment of equity. But a court cannot ignore reality, which latter shows that at the origin of the concept of the continental shelf, opening to coastal States the possibility of exploiting the riches which it contains, is to be found a criterion of social and economic import. That is why it is indispensable to consider whether, on the basis of the elements furnished by the accepted concept of the continental shelf and contained in the initial proclamations, in the writings of qualified publicists, in the proceedings at Geneva and in the practice of States, it is possible to formulate certain postulates aimed at co-ordinating the basic concepts of the institution and the factors represented by geographical circumstances, technical requirements or economic needs. This notion of co-ordination is summarized in the principles and rules stated hereunder:
(a) The coastal State exercises sovereign rights over the continental shelf appertaining to its territory for the purposes of the exploration and exploitation of the natural resources to be found therein.
(b) The sovereign rights of a State over its continental shelf are exercised independently of the existence or non-existence of natural resources in the said shelf.
(c) The delimitation of any given continental shelf is not in principle subject to the location or direction of fields or deposits of such natural resources as may exist in the region in which the shelf is to be found, unless decisive circumstances so require, or an agreement to the contrary is reached between the States concerned, without prejudice to the rights of third parties.
(d) The exploitation of a deposit extending across the boundary line of a continental shelf shall be settled by the adjacent States in accordance with the principles of equity and, preferably, by means of the system of joint exploitation or some other system which does not reduce the efficiency of working or the quantities obtained. (The Court, in paragraph 97, touched upon the question of deposits as one of the factors which must reasonably be taken into consideration by the Parties.)
6 . The special geographic situation of the continental shelves concerned requires, in my opinion, that rules of law, themselves also special, must be sought so as to enable the Parties to arrive at a just and equitable delimitation. The problems with which the Court has to deal must be placed within their particular geographical context. The continental shelves of Denmark, the Federal Republic of Germany, and the Netherlands, whose delimitation has to be carried out, appertain respectively to the territories of those three States, which are situated on the eastern coastline of the North Sea, while several other States border the rest of the approximately oval perimeter of this quasi-closed sea on the north, south and west. The area thus circumscribed is taken up by the various national continental shelves lying no deeper than 200 metres below sea-level (with the exception of the Norwegian Trough). The Parties agree as to this fact.
This special geographical configuration of the North Sea confers on the continental shelves included within it certain characteristic aspects so far as their location, form and mutual delimitation are concerned, and these aspects have an influence upon the legal régime. The aspects in question are as follows:
(a) In this kind of configuration, the natural prolongation of the territory of each State, starting from the shore, moves in a seaward direction towards the central area of the sea under consideration; while the lateral boundary lines of each shelf naturally and necessarily converge towards that same central area. The principle of convergence is therefore normal for the delimitation of the shelves in this kind of sea unless the Parties agree upon another solution.
(b) The natural convergence of the lateral delimitation lines of adjacent shelves belonging to such seas in fact precludes the possibility of giving to those lines parallel directions and, in consequence, of obtaining shelves of a rectangular shape. This convergence therefore introduces a new factor, one which the necessity of avoiding all overlapping or encroachment renders practically inevitable, i.e., the progressive narrowing of the shelf as it approaches the central apex; the shelf then takes on approximately the form of a trapezium or triangle, according to whether the central maritime area is more or less elongated or, on the contrary, more nearly circular.
In the light of these facts, which demand that the concept of “prolongation” be adapted to the exigencies of geography, and referring for the time being solely to the problem of lateral delimitation, I believe that there is justification for laying down in the present instance, as a rule to be followed by the Parties, the adoption of the system of converging delimitation lines for the purpose of drawing the lateral boundaries of the continental shelf of the Federal Republic of Germany, both as concerns the German-Danish boundary to the north and as concerns the German-Dutch boundary to the south; of course the following two essential elements must also be borne in mind:
(i) the delimitation will be made only beyond the partial boundary lines determined by the treaties of 1 December 1964 and 9 June 1965 already cited (points D and B on the map shown as Annex 16 in the Counter-Memorial);
(ii) the extremities of the two lateral boundary lines to be drawn will meet the line or, as the case may be, the point indicating the western side or apex of the German shelf, the special legal situation of which is described in sub-paragraph (f) of the present paragraph. It is for the Parties to choose the method or methods for carrying out this lateral delimitation, in conformity with the terms of the Special Agreements now in force, as well as to combine those methods with the principle of equity, as contemplated in paragraph 85 of the Judgment.
(c) The convergence of the lateral boundaries of this type of shelf necessitates the consideration of a new and different delimitation, that of the apex or end boundary of the shelf in question, in the area where as a result of contact with the extremity or apex of the shelf of the opposite State there is a danger of a conflict of rights. This delimitation is customarily effected by the drawing of a median line, except in the case of agreement of the Parties to the contrary, or of the existence of special circumstances. So far as the North Sea is concerned, the use of the median line by the majority of the coastal States in the agreements for delimitation of their shelves of which mention will be made below shows that a regional customary law has come into existence on this point.
(d) The characteristics considered in the three preceding paragraphs are not, in my opinion, new expressions or concepts of the law of the continental shelf, but are simply logical adaptations of other principles, which have already been described, under the inescapable influence of the geographical facts. For example, convergence is nothing but an aspect of the principle of the natural prolongation of the land territory, this prolongation being to a certain extent restricted as a result of the pressures resulting from local geography. The determination of the apex, as one of the boundaries of the continental shelf, is implicit in the definition thereof, since it must not be undefined and must not be prolonged beyond the neighbouring domain, that is to say beyond the apex of the shelf of the opposite State, nor yet beyond the points where the depth of the sea exceeds the 200-metre depth line, if the Convention of 1958 is adopted. The principle of what is reasonable applies, in my view, in all cases, for the recognition as legally proper of these occasional variants of the principles and rules which are the basis of the legal régime of the continental shelf, as contained in its generally accepted definition, which principles have been backed by sufficiently repeated support of the opinio juris among States, and by the writings of publicists.
It is as well to add that the expression of these ideas does not imply that the present writer would wish to propose the application, in the present case, of the sector system (a concept which, from the strictly technical point of view, does not correspond to the situation in the North Sea), and less still to distribute between the Parties shares of such sectors taken from the shelf as a whole. The present writer's argument is particularly directed to the fact that, in the North Sea, taking into account its peculiar configuration, particularly on the eastern coast, the lateral demarcation lines of the national shelves necessarily converge toward the central area, and the fact that it is necessary to demarcate not merely the lateral boundaries of each shelf but also the apex or end boundary in order to fix in law the neighbour-relationship with the shelf of the opposite State.
(e) It remains to be added—and this observation seems to me not merely important, but possibly decisive—that in practice a substantial number of the continental shelves of the North Sea have already been delimited, wholly or in part, according to the very principles which I have just expressed. In other words, a body of treaty-law which is fairly widespread and generally accepted exists on this question among the coastal States of the North Sea. An examination of the Anglo-Norwegian Agreement of 10 March 1965, the Anglo-Dutch Agreement of 6 October 1965, the Danish-Norwegian Agreement of 8 December 1965, and the Anglo-Danish Agreement of 3 March 1966, is sufficient to show that the system of convergence lines towards the central space, and the use of the median line, have invariably been adopted for the delimitation of the shelves between opposite States, with reference to their apices. The German-Dutch Agreement of 1 December 1964 and the German-Danish Agreement of 9 June 1965 on the lateral delimitation of the shelves near the coast also show that the two partial lines which were drawn up by these Agreements, although their course was interrupted, are clearly lateral lines converging towards the central region of the sea. Consequently, when in this opinion I draw the Parties' attention to the obligation to refer, for the delimitation of the German continental shelf, to the rule set out in paragraph 6, I do no more than observe the existence of a customary law of a regional nature, which in the form of treaty law has generally prevailed for some years in the practice of coastal States of the North Sea.
(f) It still remains to determine the principles and rules according to which the delimitation of the apex (west side) of the shelf of the Federal Republic of Germany should be effected by the Parties. This demands first that the legal situation be examined which results in this connection from the Agreement of 31 March 1966 between the Netherlands and Denmark on the delimitation of the continental shelves which these two countries have allotted to themselves on the basis of the equidistance principle; this also requires that the situation be studied which derives from the Agreements of 6 October 1965 and 3 March 1966, determining by an unbroken median line (points G-F-H on the map, Annex 16 to the Counter-Memorial) the boundaries between the apices of the Anglo-Dutch and Anglo-Danish shelves respectively.
As to the first of these three agreements, the Court has considered that it was not opposable to the Federal Republic of Germany which, not having been a party thereto, informed the contracting parties of its reservations (Annex 15 to the Memorial). The Court has also indicated that, Denmark and the Netherlands not being adjacent States, their application of the equidistance system was not in conformity with the text of Article 6, paragraph 2, of the 1958 Geneva Convention.
So far as concerns the two other agreements mentioned (Netherlands/United Kingdom and Denmark/United Kingdom), in regard to which the Federal Republic of Germany has also made observations (Annexes 10 and 13 to the Memorial), it is not for the Court to make any finding as to their content or validity, since there is among the contracting parties thereto a State which is not a party to the present cases; according to the terms of the Special Agreements, the Court lacks jurisdiction. Since this is how matters stand, there would be no possibility of the Court laying down any rule concerning the drawing of a median line as between the United Kingdom and the Federal Republic. From the hypothetical point of view, various possibilities could be envisaged for the future: one might contemplate an Anglo-German settlement, in which the Netherlands and Denmark would acquiesce, which would enable the Anglo-Dutch-Danish median line to be redrawn so as to introduce therein, probably with a slight eastward inflection, a small section of Anglo-German median line, or simply a point, if it is the apex of a triangle which is envisaged; one might also imagine a tripartite agreement between Federal Germany, Denmark and the Netherlands in which the theoretical or mathematical position of a German-British median line would be fixed for the sole purpose of situating upon it the line (or point) where it would meet the two Danish-German and Dutch-German lateral boundary lines of the continental shelf of the Federal Republic, which lines would be drawn in conformity with the indications of paragraph 6 (b) above—the purpose thereof being the final completion of the delimitation of the German shelf. In the latter hypothesis, a narrow passage would probably preserve the junction of the extremities of the Dutch and Danish shelves behind the German shelf and, that being so, it would not be necessary for the United Kingdom to participate contractually for the purpose of adjusting the present median line. These hypotheses or perhaps others, more acceptable or more practical, might be envisaged outside the ambit of the proceedings before the Court; but they all give rise to the profound conviction that in order to settle this situation in a satisfactory manner the Court has, in my view no other rule to prescribe to the Parties than observance of the principle of equity, always inspired by the two legal factors already defined; the concept of lateral convergence starting from points B and D of the map referred to above, and the concept of access to what would at least in theory be the Anglo-German median line or a point thereon, whether it be that the negotiations provide for the apex of a trapezium, or whether they provide for that of a triangle. At this point I must revert to the text of paragraph 85 (a) and (b) of the Judgment:
“the parties are under an obligation to enter into negotiations [which] … are meaningful, … [and] are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied”.
∗ ∗ ∗
Having thus expressed my separate opinion, I must go on to add the following declaration:
The comparison given in paragraph 59 of the Judgment by way of example is quite correct when it shows the quite different effects on the equidistance line of certain irregular configurations of the coastline according to whether the line is used for drawing the lateral boundaries of territorial waters, whose seaward extent is not considerable, or for defining the lateral boundaries of more extensive continental shelves. But from the fact that no uniform agreement, still less unanimity, exists between States as to the breadth of the territorial sea of each of them, and that it is not always certain that in every case the breadth of the continental shelf of a given State will extend beyond that of its territorial sea, it is impossible to conclude with certainty that the deviation-effects affecting the equidistance line will occur in practice in the way and to the extent indicated in that text. I have therefore thought it preferable to express some reservations so far as concerns my adherence to the content of the said paragraph 59, the more so in that if the problems of the territorial sea are connected problems, they do not directly constitute the principal object of the dispute, which concerns the continental shelf in concreto.
(Signed) J. L. Bustamante y Rivero.
Separate Opinion of Judge Padilla Nervo
Judge Padilla Nervo
1 I am in agreement with the Judgment of the Court, and particularly with its findings: that the use of the equidistance method of delimitation is not obligatory as between the Parties; that delimitation is to be effected by agreement in accordance with equitable principles in such a way as to leave to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory under the sea, without encroachment on the natural prolongation of the land territory of the other. I also concur in the statement of the Court regarding the factors that the Parties are to take into account in the course of the negotiations.
∗ ∗ ∗
2 I wish to make the following observations which emphasize my individual point of view regarding the main issues before the Court, my analysis of the conflicting contentions of the Parties in the present case and the reasoning which leads me to agree with the Court.
3 When reference is made in the Special Agreements to “principles and rules of international law”, it should be borne in mind that there are certain rules of a practical nature, so called “principles”, which are in reality only methods or systems used to apply the principles. This is so in respect of the “equidistance rule” which is referred to as a “principle” in the Continental Shelf Convention.
4 In the present case, Denmark and the Netherlands rely on the application of the 1958 Geneva Convention on the Continental Shelf, which they have signed and ratified.
5 The Federal Republic of Germany contends that the Convention is not applicable, since it has not ratified it.
6 There is no doubt that the Federal Republic is not contractually bound by the Convention. There is no controversy about this point. Therefore on these bases the 1958 Convention is not opposable as such to the Federal Republic.
7 Denmark and the Netherlands contend that the Federal Republic has manifested its agreement to the Convention in respect of a number of its provisions, in particular that it has concluded with them two treaties for the purpose of drawing, according to what are in reality equidistance lines, those parts of the boundary lines between the German and Danish, and the German and Netherlands continental shelves which are near the coast.
8 In my opinion it does not follow from this fact that the Federal Republic is bound to accept equidistance lines “as regards the further course of the dividing line”. It appears from the negotiations which took place for the purpose of concluding the above-mentioned two treaties that the Federal Republic did not rely on Article 6 of the Convention for drawing the boundary near the coast. Those lines were drawn by agreement among the Parties and their direction, extent and result were considered by them as being fair, just and equitable. If those lines were in reality equidistance lines to a certain extent (they suffered in fact some deviations) that circumstance does not change the fact that the boundary lines were determined by agreement between the Parties concerned. That emphasizes the assertion that only by agreement can, in the last resort, these problems be settled.
9 The fundamental issue between the Parties in the cases before the Court is the question whether or not the equidistance line should constitute the boundary line between their respective continental shelves beyond the partial boundaries they have already agreed upon.
10 On this question there has been disagreement between the Parties from the beginning of their negotiations. Denmark and the Netherlands insisted that the equidistance line alone could be the basis on which the boundary line might be fixed by agreement. The Federal Republic took the position that the geographical situation in that part of the North Sea required another boundary line which would be more fair to both sides.
11 If Article 6 of the Convention is not contractually binding on the Federal Republic, the Court must consider whether or not the rule it embodies or reflects is opposable to it on some other basis, and whether that part of Article 6 which relates to the equidistance principle constitutes a recognized rule of general international law which would as such be binding on the Federal Republic.
12 So far as State practice prior to the 1958 Convention is concerned, and as far as it has been possible for this to be ascertained, it does not appear that the cases of use of the equidistance line for the lateral delimitation of the continental shelves of adjacent States are numerous, nor does that practice show a uniform, strict and total application of the equidistance line in such cases so as to be qualified as customary. In my opinion, Article 6 does not embody a pre-existing accepted rule of customary international law, or one which has come to be regarded as such.
13 The equidistance rule is rather a conventional rule or technical method which could be altered by the parties to the Convention. According to the Convention the parties, by agreement, are able to disregard the principle of equidistance. If the equidistance rule was a pre-existing rule of general international law, Article 6 would not give primacy to settlement by agreement, nor could an agreement between the parties overlook, disregard or evade the application of a binding rule.
14 During the preparatory work of the International Law Commission there were many difficulties in respect of the text of Article 6 of the Continental Shelf Convention, as the Commission was doubtful regarding the criterion of equidistance and the unpredictable results of its application.
15 Although the International Law Commission reported on the whole law of the sea together, the 1958 Conference adopted separate conventions on the territorial sea, the high seas, and the continental shelf, and also a fourth convention on fishing.
16 Consideration of the fact that it was widely held that the continental shelf was a new concept and that international law on the subject was in process of development led to the decision to incorporate the articles relative to the continental shelf into a separate convention, allowing reservations to all of them except Articles 1 to 3 (formerly Articles 67, 68 and 69), as stated in Article 12.
17 Article 6 of the 1958 Convention did not at that time “embody already received rules of customary law and was not then declaratory of existing rules”, and it has not since then, in my view, by the practice of States and accumulation of precedents, acquired the character of binding customary law.
18 The consideration that the law on the subject in 1958 was in process of development was emphasized by the provision in Article 13, allowing the revision of the Convention at the request of any contracting party, at any time after five years from the date the Convention entered into force. As a result of that Article, it will be feasible to modify the Convention after June 1969.
19 In practice, the application of the equidistance method for lateral delimitations, prior to 1958, has not been rigid in all cases. Certain factors or special circumstances have been taken into account as justifying a deviation from its rigid application, and the equidistance line has been replaced by other lines fixed by agreement. Its use can not be qualified as customary.
20 At Geneva, the equidistance principle was regarded as the most equitable method for fixing boundaries, though not the only one, but the purpose and the aim was to find or develop a rule which ought to be equitable. Justice and equity was an overwhelming consideration in the minds of the framers of the Continental Shelf Convention in their search for a rule which would not result in harsh inequities, so far as they could predict the actual results of its application.
21 Adjacent States parties to the Convention are not obliged, by Article 6, to determine the boundary of the continental shelf adjacent to their territories by the rigid application of the principle of equidistance; they are free to determine the boundary otherwise if they so desire, by agreement between them.
22 The criterion of equidistance is a technical norm which should aim at realizing what is just according to the natural law of nations. (Article 38 (1) (c) of the Court's Statute.)
23 The Convention includes some technical rules which cannot yet be regarded as principles of international law.
24 The obligation, to negotiate is a principle of international law. Preference should be given to agreement. The first sentence in Article 6 is categorical, it is a statement of principle— “the boundaries … shall be determined by agreement”.
25 “The absence of agreement” cannot be considered as a weapon in the hands of any State to impose upon another adjacent State the application of the equidistance rule, but regard should be given to the special circumstances of the case, which may be the reason for the disagreement to the application of the equidistance rule. If the adjacent State disagrees as to the existence of special circumstances, the other State may not determine the boundary of its continental shelf by a unilateral act.
26 The existing agreements between States in the North Sea are not sufficient proof of the recognition by the States concerned of the equidistance principle in Article 6 as “generally accepted law” binding upon them. It could rather appear that since the delimitations by the equidistance method were made by agreement between the States concerned, there was some recognition of the fact that the result of the application of such method was satisfactory to those States and was considered by them to be just and equitable. If it had been considered to be unfair by one of the parties, no agreement could have been reached.
27 Geographical realities may justify a deviation from a rigid application of the equidistance principle.
28 Until settled by agreement or by arbitration, the question is open. In the cases before the Court, if there is no agreement, the boundary lines unilaterally fixed do not exist so as to be opposable to the Federal Republic.
29 The effect of the right conferred by Article 12 of the Continental Shelf Convention to make reservations to (inter alia) Article 6, as regards the contention that the Convention either crystallized the equidistance method as a general rule of law or is to be regarded as having founded such a rule, can be more clearly ascertained in the light of the discussion on the subject at the plenary meetings of the 1958 Conference on the Law of the Sea.
30 It was considered that since the continental shelf was a new subject of international law it was desirable that a large number of States should become parties to the Convention, even if they made reservations to articles other than Articles 67 to 69 (1 to 3), and many representatives were of the opinion that there should be a clear provision in the Convention regarding reservations, since great difficulties had arisen from the lack of such a provision in previous conventions.
31 It was stated that in discussing the question of reservations to the proposed articles, it should be remembered that the Conference had been convened to draw up international standards which would be progressively accepted until they became common to all States.
32 The Convention should be worded so that all States could become parties to it. The question of reservations was of fundamental importance. The Convention would be valueless if ratified by only a few States. Frequently, governments wanted to make to a convention reservations which did not affect common standards, and were unwilling to become parties to it unless they could do so.
33 Representatives wishing to permit reservations had been reproached for defending national interests; but, in fact, they were attending the Conference for that very purpose.
34 The debate showed that if an absolute prohibition of the making of reservations were pressed there could be no agreement.
35 International law, it was said, must be built up gradually, but that rule did not preclude attempts to base international instruments on justice and equality among States.
36 In conclusion it seems correct to affirm that the right to make reservations to Article 6 shows that the States at Geneva did not intend to accept the equidistance method as a general rule of law from which they could not depart and which would be binding on them in all cases. Therefore the contention that the Convention crystallized the equidistance method as a general rule of law, or is to be regarded as having founded such rule, is not justified, and it appears from the records that the debates at the Geneva Conference do not afford a basis for or give support to such a contention.
37 Although the cases of Denmark and the Netherlands have been joined for purposes of presentation to the Court, because both Parties are putting forward the same basic contentions, they remain separate cases in the sense that one relates to the Danish-German line of demarcation, and the other to the German-Netherlands line; but if these lines were taken separately and in isolation there would be no problem: it is the simultaneous existence of both lines, if constructed throughout on equidistance principles, that leads to an inequitable result, and causes the Federal Republic's objection. It is the existence of the three coasts with Germany in the middle (and its coastal configuration) which creates the problem.
38 Two lines are here involved which, by their interaction have in fact automatically determined the Federal Republic's area of the continental shelf. The Court cannot ignore this fact but has to take full account of it.
39 Geographically, the North Sea constitutes what for purely practical purposes may be called an “internal” sea, in the sense that while it has some outlets to the ocean it is bordered along almost the whole of its periphery by the territories of a number of coastal States.
40 There is a general consensus on the part of all the coastal States to the effect that the bed of the North Sea constitutes in its totality a single continental shelf, the various parts of which each appertain to one State.
41 Several of the coastal States on the North Sea are opposite each other and others, lying on the same side of the sea, are adjacent and have lateral boundaries.
42 Consequently, the continental shelves appertaining to the coastal States whose coasts almost totally enclose the North Sea are converging continental shelves, with an initial base or boundary constituted by the coast of the territory of each State, and an end-point or boundary which touches the continental shelf of the opposite States on the other side of the sea.
43 In the case of the States parties to the present dispute, the Netherlands, the Federal Republic and Denmark are States the coasts of which are opposite to the coast of the United Kingdom. If in principle the rule contained in Article 6, paragraph 1, of the Continental Shelf Convention is applied, the boundary between the continental shelves of the Federal Republic of Germany and the United Kingdom would be constituted by the median line in the North Sea drawn between the coasts of the two States. But the possibility of drawing such a median boundary line is excluded on account of the fact that, under the treaty of 31 March 1966 between the Governments of the Netherlands and Denmark, two areas of the continental shelves which those States have bilaterally accorded each other are interposed in the central area of the North Sea, between the Federal Republic and the United Kingdom. In fact, such overlaps appear to prevent the implementation of the relevant treaty rules and it appears that this particular case, that of an internal sea, was not contemplated when the text of Article 6 was drafted. Neither paragraph 1 nor paragraph 2 of Article 6 have made provision for the overlaps which may arise from the simultaneous existence of median and lateral equidistance lines where there are both opposite and adjacent States in a particular internal sea. It appears therefore that the case of the North Sea, so far as the situation of the Parties to the present dispute is concerned, could be deemed a case in which special circumstances exist.
44 The delimitation should be reasonable. It is the repercussion or combination of both lines which caused the German objection and which does in fact lead to an unreasonable result. Their combined effect is not equitable in respect to the Federal Republic. That was the cause of the disagreement and the very reason why the Parties have brought their dispute to this Court.
45 I believe that the Parties, by submitting the matter to the Court in the way selected by them, recognized in effect that the respective lines cannot be determined in isolation from one another, and that the matter constitutes an integral whole.
46 On 30 October, during the oral proceedings. Counsel for the two Kingdoms said that in a sense the Netherlands and Denmark are slantingly opposite to each other but that by no stretch of imagination could they be called adjacent States.
47 If Article 6, paragraph 2, prescribes the equidistance method only in the case of two adjacent States, the fact that the two Kingdoms, not being adjacent States, have determined their boundaries between them on the basis of equidistance shows, it appears, that if their agreement is based on the Geneva Convention it had to be concluded under the first sentence of the first paragraph of Article 6. that is, merely as a bilateral ad hoc agreement and not on the basis of some principle.
48 There is no rule of international law which allows a State to delimit its continental shelf with every other State unilaterally by the application of the equidistance method, unless the other State acquiesces in such a boundary. The equidistance boundary may not be imposed upon a State which has not acceded to the Convention.
49 In the present case, the point in issue is whether that part of Article 6 of the 1958 Convention on the Continental Shelf which relates to the equidistance method does or does not embody a rule of general international law binding on the Federal Republic.
50 It is generally admitted that in State practice prior to the Geneva Conference of 1958 the tendency was to refer in general terms to the delimitation of continental shelf boundaries on “equitable principles”, without mention of the “equidistance” principle in particular. State practice up to that date was not regarded by the International Law Commission as sufficiently consistent to establish any customary rule as already in existence with respect to the continental shelf.
51 I have said above what in my opinion is the character of the State practice after 1958, which does not show that the “equidistance” rule has yet evolved as customary law.
52 In the preparatory work of the International Law Commission, as at the Geneva Conference, the sentiment that the equidistance principle should not be an absolute rule was always predominant. When it was suggested that the “special circumstances” rule should be eliminated from the text of Article 6, the proposal to that effect was overwhelmingly rejected.
53 The equidistance method was to be applied, so to speak, in the last resort, only when agreement was not forthcoming and when the demarcation in any concrete case did not have characteristics which would justify the drawing of lines of delimitation by any other method.
54 The flexibility and adaptability of the text of Article 6 to a variety of situations, potential conflicting claims, geographical and geological differences regarding coastal States all over the world, were considerations and preoccupations always present during the framing of Article 6, in order to make possible a large measure of acceptance by governments.
55 The right to make reservations to Article 6 was another safety valve against a rigid application or interpretation of the equidistance concept in a manner which would alter its real nature as a technical norm to be used constructively in instances where there was no agreement or special circumstances did not exist.
56 When, during the negotiations, one of the parties alleges the existence of special circumstances, there is only one way out of the impasse: compromise and further negotiations. There is no possibility of arriving at an acceptable, fair and peaceful solution, and one which will therefore endure, if it is not searched for by the ways and means stated in Article 33 of the Charter of the United Nations Organization.
57 The obligation to negotiate is an obligation of tracto continuo; it never ends and is potentially present in all relations and dealings between States.
58 The purpose of the continental shelf doctrine and of the Convention is to contribute to a world order, in the foreseeable rush for oil and mineral resources, to avoid dangerous confrontation among States and to protect smaller nations from the pressure of force, economic or political, from greater or stronger States.
59 The pacific settlement of disputes in this field should promote friendly relations and enduring co-operation especially among neighbouring States. Solutions likely to be considered by one of the parties as inequitable would be difficult to enforce, they would in time be evaded and would breed new disputes.
60 The question arises: do geographical realities justify a deviation from the rigid application of the equidistance rule? I believe they do justify such deviation.
61 The distorting effect caused by the application of the lateral equidistance line, when it cannot be accounted for by the length of the coastline, justifies the application of the special circumstances principle.
62 If the application of the equidistance rule would result in harsh inequities in a given specific case, this result may be considered as a special circumstance justifying another boundary line, in the absence of agreement between the parties concerned.
63 I think it is correct to say that the discussion on the reservation of “special circumstances” showed that this clause was understood not so much as a limited exception to a generally applicable rule, but more in the sense of an alternative of equal rank to the equidistance method.
64 The configuration of the North Sea coasts of Denmark, of the Federal Republic and of the Netherlands and the effects produced by such geographical configuration on the boundaries of the continental shelves of these three States, as they result from the application of equidistance, constitute a circumstance entitling the Federal Republic to claim from Denmark and the Netherlands a revision in its favour of the boundaries of its continental shelf.
65 I agree with the contention that “the history and documents of the Geneva Conference on … the Continental Shelf show that the origin of the ‘special circumstances’ clause was the fact that coastal features or irregularities fairly frequently exercise a harmful influence on the equidistance line, resulting in considerable inflexions or deviations, the effect of which is inequitably to reduce the … shelf area that would normally go to a party. It was consequently in order to provide a safeguard for the rights of the losing party, in a spirit of equity that the ‘special circumstances’ provision was introduced, allowing ‘another boundary line’ to be drawn instead of the equidistance line or in combination with it.”
“… provision must be made for departures [i.e., from the equidistance line] necessitated by any exceptional configuration of the coast, as well as by the presence of islands or of navigable channels. This case may arise fairly often, so that the rule adopted is fairly elastic.” (Yearbook of the International Law Commission, 1956, II, p. 300.)
67 Attempts made at the Geneva Conference on the Law of the Sea to strike out the alternative of “special circumstances” and to make the equidistance method the only rule were rejected by a large majority.
68 In addition to special situations of a technical nature—navigable channels, cables, safety or defence requirements, protection of fisheries (fish banks), indivisible deposits of mineral oil or natural gas, etc.—special geographical situations such as special coastal configurations have been regarded as special circumstances.
“It is stipulated that this rule is applicable in the absence of agreement between the States concerned and unless another boundary line is justified by special circumstances. The modifications to the general rule are allowed either because the exceptional configuration of the coasts, the presence of islands or navigable channels necessitate departure from these rules, or because of the existence of common deposits situated across the mathematical boundary.”
“The rule, however, admits of some elasticity in the case of islands or navigable channels as well as in the case of an exceptional configuration of the coast.”
“Article 6 of the Geneva Convention in fact provides that these (sc., the median line and the lateral equidistance line) may be modifed by agreement between the States concerned, when ‘another boundary line is justified by special circumstances’, for example when the exceptional configuration of the coast or the presence of islands or of navigable channels necessitates this. The rules adopted by the Geneva Conference are thus sufficiently flexible to permit of an equitable solution in all cases.” [Translation by the Registry.]
72 Consequently, the Parties should search for another method of delimitation which would produce a just and equitable result and, following the guidance given by the Court, should start new negotiations in compliance with their obligation laid on them by a principle of general international law. The Parties will then, as stated in Article 1, paragraph 2, of the Special Agreement, fix the boundaries by agreement among them.
73 I might say in conclusion that my opinion is that in this specific case the equidistance rule is not applicable, that there is no general customary law binding the Federal Republic to abide by the delimitation of its continental shelf as results from the lines drawn as a consequence of the ad hoc agreement made between its neighbours Denmark and the Netherlands; that the Parties should search for and employ another method, in conformity with equity and justice, and that the Parties should undertake new negotiations to delimit the continental shelf in the North Sea as between their countries by agreement, in pursuance of the decision given by the Court.
74 The arguments in favour of the applicability of the equidistance method in Article 6 of the Convention are as follows:
(a) that the Federal Republic of Germany took part in the deliberation of the Geneva Conference and signed the Convention without reservations to Article 6;
(b) that the Federal Republic informed the two Governments that its Government was preparing to ratify the Convention;
(c) that the Federal Republic in its Proclamation of 20 January 1964 invoked the Convention to assert sovereign rights to its continental shelf regarding the exploration and exploitation of its natural resources;
(d) that the principle of estoppel applies and the Federal Republic should not be allowed to deny the valid legal force of the Convention.
75 The equidistance method cannot be considered as a rule derived from fundamental principles of general acceptance.
76 The new concept of the continental shelf expressed in the Truman Proclamation and in subsequent governmental proclamations; the existence of opinions that jurisdiction of the coastal State over the adjacent continental shelf was already part of customary international law; and finally the definition of the continental shelf as contained in Articles 1 to 3 of the Convention, are all points which count against the assertion that the equidistance method in Article 6 is a rule of customary international law.
77 The acceptance, recognition or invocation of the rights defined in the first three articles of the Convention (to which reservations are prohibited) by a State not party to the Convention, does not signify or imply an obligation to abide by the method of equidistance. It is not logical or right to affirm that if a party to the Convention may make reservations to Article 6, a State which is not bound by the Convention in a contractual manner could be in a worse situation than a party in respect to the rigid application of Article 6.
(a)The argument that the Federal Republic took part in the deliberations at the Geneva Conference is not a valid one, nor is it prima facie an indication of consent or acceptance to be bound by the conventions concluded at such Conference. If mere attendance at an international conference could produce binding effects, no State would be willing to take part in any conference, the concrete results and implications of which are unknown.
It is not denied that the Federal Republic did sign the Convention on the Continental Shelf and did not make reservations to Article 6; but this signature is a preliminary step made ad referendum, subject to the express approval of the appropriate organ of a State by its own constitutional procedures. The Federal Republic did not ratify the Convention, is not a party to it and therefore cannot be contractually bound by its provisions.
(b) The fact that the Federal Republic informed the two Kingdoms that it was preparing to ratify the Convention cannot be considered as a legal and binding promise to do so.
Such information may be a manifestation of intention to perform in the future a certain act; the intention existing at a given moment might be changed later on and the party is free to change its mind.
As long as the act (in this case, ratification) is not actually performed, there cannot be a binding obligation; the consent cannot be implied or deduced from such information of intention.
(c) The fact that the Federal Republic in its Proclamation of 20 January 1964 invoked the Convention to assert sovereign rights to its continental shelf cannot be taken as an expression of consent to be bound by the Convention as a whole, nor does it mean that the Federal Republic accepted the method of equidistance. The Federal Republic by such Proclamation claimed a right to its continental shelf as being a prolongation into the sea of its land territory, but it could have made that claim regardless of the Convention in the manner of the Truman Proclamation. Invoking the definition of the first three articles of the Convention, the Federal Republic of Germany asserted a right already in existence, recognized internationally before the framing of the Continental Shelf Convention and inherent in the accepted doctrine of the continental shelf.
Claiming such a right and quoting its definition in the Convention does not imply an acceptance of the whole Convention as such, nor an acceptance of the rigid application of the principle of equidistance.
(d) The principle of estoppel cannot in this case be applied against the Federal Republic. It cannot be proved that the two Kingdoms changed their position for the worse relying on such acts of the Federal Republic as its 1964 Proclamation or its manifestation of its intention to ratify the Convention.
78 The first three articles of the Convention were intended to be broadly declaratory of existing customary international law, but it is essential not to extend the character of these articles to the rest of the articles in the same Convention, which are not at all declaratory of contemporary customary law, and which in general are of a pure technical character, which could be the subject of express reservations as is, especially, the method of equidistance. Whatever publicists have said regarding the doctrine of the continental shelf and its definition in the first three articles of the Convention, does not apply to the whole Convention, and by no legal reasoning could it be said that the method of equidistance in Article 6 embodies a rule of customary international law.
79 The number of ratifications and the instances where States by agreement have made use of the equidistance method do not give to that method the character of customary law. There is agreement between the Parties to the effect that the Convention is not applicable to the Federal Republic as a contracting party; nor is Article 6 applicable to it as a principle of general international law. Even the States parties to the Convention are not bound to apply the equidistance method since—by the very terms of Article 6—they are free to agree to another method or manner of delimitation of their continental shelves.
80 A treaty does not create rights or obligations for a third State without its consent, but the rules set forth in a treaty may become binding upon a non-contracting State as customary rules of international law.
81 Article 6 of the Convention and particularly the method of equidistance does not constitute a rule which has been generally accepted as a legally binding international norm.
82 The acts of the Federal Republic which are invoked as evidence that it has gone quite a long way towards recognizing the Convention, cannot override the fact that it has consistently refused to recognize Article 6 and the equidistance method as an expression of a generally accepted rule of international law and has objected to its applicability as against itself.
83 The Federal Republic, like any other State, could assert its rights over the continental shelf without relying on the Convention. States have made such assertions long before the Geneva Conference took place (Truman Proclamation; Mexican Declaration of 29 October 19459) and may do so now and in the future regardless of the Convention. The right of a coastal State to its continental shelf exists independently of the express recognition thereof in the first three articles of the Convention, and is based on the consideration that the continental shelf is the natural prolongation under the sea of the land territory pertaining to the coastal State.
84 A treaty may contain a clause allowing or prohibiting reservations to some of its provisions. A party making permitted reservations to a particular article is not bound by its text. The very purpose of a reservation is to allow parties to escape from the rigid application of a particular provision. No right is conferred to make unilateral reservations to articles which are declaratory of established principles of international law. Customary rules belonging to the category of jus cogens cannot be subjected to unilateral reservations. It follows that if the Convention by express provision permits reservations to certain articles this is due to recognition of the fact that such articles are not the codification or expression of existing mandatory principles or established binding rules of general international law, which as such are opposable not only to the contracting parties but also to third States.
85 Article 6, among others, of the Continental Shelf Convention is of a technical nature; it is not the expression of a customary norm and is not opposable to the Federal Republic which has consistently refused to accept the application, without its consent, of the equidistance method.
86 The history of the Convention through the International Law Commission, the General Assembly and the Geneva Conference shows that the equidistance concept is not and was never intended to be the expression of an international legal rule of universal applicability. The fact that the Convention has not made compulsory the rigid application of the equidistance method does not mean that the Convention is incomplete or that it left the question of delimitation open. This question certainly arises but delimitation cannot be enforced by peaceful means except by agreement, arbitration or judicial decision.
87 The only principle of general international law implicit in Article 6 is the obligation to negotiate, since the delimitation between the continental shelves of adjacent States “shall be determined by agreement between them”.
88 The fact that the equidistance method has been followed in several bilateral agreements between neighbouring States does not mean at all that those States were compelled by the Convention to use the equidistance method. It only means that there was agreement between them because they considered such method satisfactory, fair, equitable and convenient. They also departed from the equidistance method when they agreed to do that.
89 The bilateral agreement of 31 March 1966, made before the last part of the tripartite talks in Bonn in May, was founded on the assumption that the failure of the talks up to that time was conclusive and that in the absence of agreement they could proceed on the application of the equidistance method. The Federal Republic not being a party to such agreement refused to abide by it and consider it as res inter alios acta.
90 The lack of agreement in the negotiation was, nevertheless, not conclusive in the opinion of the Parties, as was shown by the fact that they decided to present the matter to the Court.
∗ ∗ ∗
91 In my opinion, paragraphs 71 to 75 of the Court's considerations contain—in their application to the present case—the statement of the requirements which must be satisfied in order that a rule which in its origin is only a contractual one may become a rule of customary international law.
92 These requirements, which may be regarded as of general application, could be summed up as follows:
“It would in the first place be necessary that the provision concerned should, at all events potentially, be of a fundamentally normcreating character such as could be regarded as forming the basis of a general rule of law.” (Paragraph 72, first sentence.)
“With respect to the other elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of any States whose interests were specially affected.” (Paragraph 73, first sentence.)
“Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be. State practice, including that of any States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked:—and should moreover have occurred in such a way as to show a general recognition to the effect that a rule of law or legal obligation is involved.” (Paragraph 74.)
∗ ∗ ∗
93 I believe that the Judgment of the Court will guide and help the Parties in the further negotiations that they will undertake, in compliance with paragraph (2) of Article 1 of the Special Agreement, for the purpose of delimiting the continental shelf in the North Sea as between their countries.
94 The agreement among themselves made in accordance with the findings of the Court and conducted in fulfilment of the principles prescribed by the Charter of the United Nations, will result in the recognition of their respective legitimate interests in the continental shelves appertaining to each of them.
95 I believe furthermore that the Judgment of the Court in the North Sea Continental Shelf cases will also be a guide in other similar controversies, to help States settle by negotiation or other peaceful means of their own choice, their eventual differences in this respect.
(Signed) Luis Padilla Nervo.
Separate Opinion of Judge Fouad Ammoun
Judge Fouad Ammoun
1 . The Legal Basis and the Definition of the Continental Shelf.
Since the Court was called upon, under the Special Agreements by the notification of which it was seised, to state the principles and rules applicable to the disputes between the Federal Republic of Germany and the Kingdoms of Denmark and the Netherlands as to the delimitation of the areas of the continental shelf which makes up the whole of the North Sea which appertain to each of these countries, the Court had to establish in the first place the actual concept of the continental shelf the delimitation of which was in issue.
Even up to the time of the Conference on the Law of the Sea held at Geneva in 1958, this concept was still subject to controversy10; and even last year, in 1968, in the course of the deliberations of the Ad Hoc Committee set up by the United Nations to study the peaceful uses of the seabed and the ocean floor, the limits, if not the definition, of the continental shelf provided material for discussion by the representatives of States, who apparently did not find the definition either sufficiently precise or sufficiently comprehensive11. What is more, in the course of the hearings in the present cases, the representative of the Federal Republic of Germany stated that “it is not possible to speak of the continental shelf concept as an already fixed or completed concept12”. This observation, coming from one of the Parties, is fraught with consequences, in particular for the time when the Parties, on the basis of the Court's Judgment, come to exercise their rights over the area of continental shelf which has been recognized as appertaining to each of them. It will be sufficient in this connection to mention the differences of opinion, to which I shall refer later, as to the extension of the sovereignty of the coastal State over the continental shelf13 and as to its outer limits14.
In fact the Court, not having faced the question directly as I have suggested, has been unable to avoid discussing a number of its aspects, and coming back to the point throughout its reasoning. The Court has in fact had to consider, with a view to the delimitation which is the subject of the present cases, whether the continental shelf is the natural prolongation of national territory under the sea, thus justifying the delimitation of the areas naturally appertaining to each of the coastal States and excluding the contention for a sharing out among such States; or whether it is dependent on the idea of contiguity, of which the corollary would be the equidistance rule, to be compulsorily applied to the delimitation in question15; or whether again delimitation on the equidistance basis is inherent in the concept of the continental shelf, or follows implicitly from the exclusive nature of the rights recognized as belonging to the coastal States 1.
Finally it was not without interest to ascertain whether the continental shelf has acquired the status of a rule of law by virtue of the said Convention, or as a result of custom, since its legal régime could differ according to which was the case.
All these are questions which should have been dealt with, in my opinion, from the very beginning, in order to clarify the reasoning and so as to leave no lurking uncertainty as to the scope and significance of the Judgment.
2 . At all events there was no ground for accepting the opinion expressed by the Kingdom of the Netherlands, that the Court is not invited to pronounce on the question of what part of the bed of the sea and of the subsoil of the high seas should be considered, from the legal point of view, as constituting the continental shelf. It must be borne in mind that the integrity of the high seas, the freedom of which is hallowed by a general custom, is in issue, and all States, not merely the Parties to the disputes, are directly interested therein.
It goes without saying that the Court is bound by the Special Agreements just as much as the Parties. The quotations taken from the Judgments concerning the cases of the Lotus and of the Territorial Jurisdiction of the International Commission of the River Oder are relevant in this connection. It is nonetheless the case that the Court has the right, when appropriate, to interpret the special agreement by which it has become seised of a case, as it has to interpret any convention, following a settled line of decisions. And however restrictive such interpretation should be—in view of the sovereignty of States and the optional nature of the Court's jurisdiction—it is nonetheless abundantly clear that the Parties could not have asked the Court to state principles and rules which could have no application in law. A convention cannot be isolated from its legal context, which in the present case is the problem of the continental shelf. If, for the sake of argument, this were not recognized in law, there could be no dispute as to its delimitation, and in the absence of a dispute there would be no reason to define principles and rules to resolve it. It is appropriate to recall the rule of interpretation stated by this Court in its Advisory Opinion of 3 March 1950 on the subject of the Competence of the General Assembly for the Admission of a State to the United Nations, to the effect that the text should be recognized as authoritative, unless its terms are ambiguous or lead to an unreasonable result; for it would not be reasonable to abide closely by the letter of the Special Agreements and not to elucidate the whole tenor thereof or any implicit elements.
∗ ∗ ∗
3 . When this has been said, the question with which the Court was faced first of all was whether there exists a general international convention, within the meaning of Article 38, paragraph 1 (a), of its Statute, which has modified the principle of the freedom of the high seas and sanctioned the concept of the continental shelf.
It should be sufficient to observe that the Geneva Convention of 29 April 1958 on the Continental Shelf has up to the present been ratified by only 39 States, out of a total of about 140 making up the international community. The Convention remains, by analogy with internal law of the nations, res inter alios acta, and could not bring about a modification erga omnes of the principle of the high seas, or limit the scope of legal consequences thereof. This interpretation, it should be added, indisputably applies to norm-creating treaties as well as to contract-treaties, particularly since the falling into disuse of the privilege which a limited number of Powers used to claim to legislate in the name of all the nations of the world, whether colonized of independent.
It is true that, in order to claim sovereign or exclusive rights over the continental shelf bordering on their respective territorial seas, the Parties rely on the provisions of Articles 1 and 2 of the Convention on the Continental Shelf mentioned above. The Kingdom of the Netherlands and the Kingdom of Denmark are obviously bound by the stipulations of that Convention. The Federal Republic of Germany, which has not ratified it, is nonetheless bound, by virtue of the principle of good faith in international relations, as is every State as a result of a unilateral declaration'16, by the statements made in the Memorial, affirmed in the course of the speeches of 4 November 1968, in which the Federal Republic declared that the definition of the continental shelf and the rights of the coastal States as determined by Articles 1 and 2 before referred to are generally recognized: it explained that it “recognizes that the submarine areas of the North Sea constitute a continental shelf over which the coastal States are entitled to exercise the rights defined in Article 2 of the Convention17”.
Although the Parties to the case are bound, each with regard to the other, by the obligations which they have assumed in the ways which have been mentioned, it is nonetheless the case that the definition and the rights mentioned above cannot be relied on, solely on the ground of the Convention mentioned above, as against States which have not ratified it, or have not declared that they accept its terms.
Consequently the affirmation is justified that the freedom of the high seas, settled by virtue of a custom of international law which is universally accepted, should be respected in principle and as to its consequences, and, in the absence of a convention of universal scope cannot be modified or limited except by a custom backed by a general consensus, or in the last analysis by a general principle of law.
It is now as well to enquire whether a modification of the principle of the freedom of the high seas has not in fact taken place by virtue of a new customary rule of universal scope. This will be the subject of the following question.
∗ ∗ ∗
4 . Failing a general convention, as specified above, is there an international custom, as contemplated in paragraph 1 (b) of Article 38 of the Statute of the Court, which has modified the principle of the freedom of the high seas and sanctioned the concept of the continental shelf?
Whereas the Geneva Convention of 29 April 1958 on the High Seas codifies certain rules of customary international law, and in particular the freedom of the high seas outside territorial waters, the question arises whether this is also the case with the Geneva Convention of the same date on the Continental Shelf; and if not, has a custom been formed subsequently which, modifying the custom establishing the freedom of the high seas, confers exclusive rights over stretches of these or over certain of their component parts?
It should of course be observed that the Convention on the High Seas mentions, in its preamble, the intention of the parties to “codify the rules of international law relating to the high seas”; whereas the Convention on the Continental Shelf says nothing of that kind. Furthermore, Article 1 of the latter Convention, when giving a definition of the continental shelf, limits it to the purposes of the articles of that Convention. It would not however be possible to use these considerations as an argument for stating that the concept of the continental shelf as opposed to that of the freedom of the high seas, is not yet accepted in customary international law. Proof of the formation of custom is not to be deduced from statements in the text of a convention; it is in the practice of States that it must be sought. Indeed, custom, which Article 38, paragraph 1 (b), of the Statute of the Court takes as evidence of a general practice accepted as law, or which the teaching of publicists, following Gentilis18, interprets rather as a practice capable of demonstrating its existence, requires the consent, express or tacit, of the generality of States, as was taught by Grotius with reference to the customary law of nations of the period. It is therefore a question of enquiring whether such a practice is observed, not indeed unanimously, but, as is quite clear from the above-mentioned Article, by the generality of States with actual consciousness of submitting themselves to a legal obligation.
5 . The facts which constitute the custom in question are to be found in a series of acts, internal or international, showing an intention to adapt the law of nations to social and economic evolution and to the progress of knowledge; this evolution and this progress have given impetus to the exploitation of the riches of the soil and subsoil of the sea at ever-increasing depths, and to the use of new means of communication and transport which develop unceasingly, and to the extension, sometimes ill-considered, of deep-sea fishing, which has its dangers for the conservation of marine species and, in general, of the biological resources which have become more and more necessary for the feeding of rapidly growing populations.
Such are the declaration of the Russian Imperial Government of 29 September 1916; the bilateral treaty between the United Kingdom and Venezuela of 26 February 1942; the Proclamation and Executive Order of President Truman of 28 September 1945; the subsequent chain of proclamations, those of Mexico in 1945 and 1949; of Cuba in 1945; of Argentina and Panama in 1946; of Peru, Chile, Ecuador and Nicaragua in 1947; of Costa Rica, of the United Kingdom on behalf of Jamaica and the Bahamas, and of Iceland in 1948; of British Honduras. Guatemala, Saudi Arabia, Abu Dhabi, Bahrain, Kuwait, Qatar, Ajam, Dubai, Sharjah, Ras al Khaimah, Umm al Qaiwain, and the Philippines in 1949; Brazil, El Salvador, Honduras, Nicaragua, Pakistan, and the United Kingdom on behalf of the Falkland Isles in 1950; of South Korea and Israel in 1952; of Australia in 1953; of Iran in 1955; of Portugal in 1956; of Iraq, Burma and Ceylon in 1957; and finally those of the States bordering on the North Sea, since natural gas and petroleum were discovered there, namely: Royal Proclamation of Norway of 31 May 1963; Royal Decree of Denmark of 7 June 1963; Proclamation of the Federal Republic of Germany of 20 January 1964; Orders in Council of the United Kingdom of 15 April 1964 and 3 August 1965; Netherlands Law of 23 September 1965.
There should be added to these States some 30 others which, while not being numbered among the authors of unilateral declarations, have signed and ratified, or merely signed, the Geneva Convention of 29 April 1958 on the Continental Shelf.
For if the said Convention, ratified up to the present day by 39 States, is not yet such as to modify by agreement the international custom concerning the high seas, it nonetheless constitutes, by the legal act of its ratification, and by the deliberate legal fact of its mere signature, a group of precedents which contribute, together with State practice, judicial and arbitral decisions, resolutions of legal conferences and of international bodies, as well as the positions there taken up, to the elaboration of the material element of custom.
6 . Not so long ago, an eminent jurist19 could still write that the proclamations of States do not constitute more than a recital of facts in which it is difficult to “trace an ethic widely accepted as constituting law, that is to say, embodying a concept of general interest or of equity”. He saw therein rather the contrary, discerning, of course, “in the background, pretexts or anxieties as to the needs of humanity”, but considering as by far the most dominant “a concern for individual interests and, at the most, for national interest, which in the law of nations is no more than an individual interest”.
The representatives of certain countries echoed this doctrinal peint of view at the Geneva Conference on the Law of the Sea in 195820.
And in fact, up to the eve of that Conference, it could be claimed that the doctrine of the continental shelf was still no more than a custom in the process of formation.
Today it must be admitted that these encroachments on the high seas, these derogations from the freedom thereof, beginning with the Truman Proclamation of 28 September 1945, are the expression of new needs of humanity. From this it may be deduced that just as reasons of an economic nature concerning navigation and fishing justified the freedom of the high seas, reasons of the same nature which are no less imperative, concerning the production of new resources with a rich future, and their conservation and their equitable division between nations, may hence-forward justify the limitation of that freedom. Thus the American Proclamation, which deliberately cut the Gordian knot of the question whether the immense resources discovered under the high seas would remain, on the model of the high seas themselves, at the disposal of the international community, or would become the property of the coastal States, set the fashion, and was followed by a series of similar documents and by the support of legal writers, culminating in the Geneva Convention of 29 April 1958 on the Continental Shelf. The proposal of the Federal Republic of Germany for the exploitation of submarine riches for the benefit of the international community, which adopted an idea of P. Fauchille, received no support at the Conference, a number of countries being anxious to reserve their rights over the continental shelf of the epicontinental platform prolonging their coasts, and certain of them fearing in addition the enterprises of the industrialized nations, which were better equipped for a de facto monopoly of this exploitation.
This aggregate body of elements, including the legal positions taken up by the representatives of the majority of the countries at the Geneva Conference, even by those who expressed reservations21, amounts here and now to a general consensus constituting an international custom sanctioning the concept of the continental shelf, which permits the Parties to lay claim to delimitation between them of the areas of the North Sea continental shelf appertaining to them, for the exercise of exclusive rights of exploration and exploitation of the natural resources secreted in the bed and subsoil of the sea.
∗ ∗ ∗
7 . If the concept of the continental shelf has thus been definitively recognized, there remains a related question, namely the extent of the continental shelf or its outer limit. This is a question which is subject to controversy, and which caused the representative of the Federal Republic of Germany to say: “a crucial question has not yet been settled—what are the outer limits of the continental shelf towards the open sea22?”
The interest of the question lies in the fact that a judgment stating the principles and rules applicable to the delimitation of the continental shelf should not allow it to be understood that the Court has accepted, without examination, the concept of the continental shelf.
It is possible to enquire whether the delimitation of the continental shelf appearing in Article 1 of the Convention has alone passed into customary law, or whether the latter does not imply—as in the case of historic waters—other outer limits of the area of the high seas subjected to the jurisdiction of the coastal State under the title of continental shelf or of epicontinental platform, or under some other denomination.
8 . It will in fact be observed that some of the acts mentioned above, forming part of State practice, had remained open to challenge as a result of the extension which those acts gave to the appropriation of the high seas. In particular, in the most western hemisphere, such were the laws, proclamations or decrees issued in 1946 by Argentina, in 1947 by Peru, Chile and Ecuador, in 1948 by Costa Rica, and in 1950 by Honduras and El Salvador; these acts extended the bounds of the continental shelf adjacent to the coasts of these States beyond the break in the slope occurring at a depth between 130 and about 550 metres23, or, in the absence of a submarine prolongation of territory in the form of a shelf, replaced this with an area of the high seas, the continental slope or the epicontinental platform, limited by some of these acts to a minimum of 200 miles from the coast24, and left by others without any limits whatever.
It is relevant to stress, in this connection, the guiding role played by Peru—a country which is almost without a continental shelf—as a result of the above-mentioned decisions of the United States, Mexico and Argentina, the last two of which already claimed, in addition to the continental shelf, exclusive areas of the epicontinental platform. How is it, it was emphasized in Peru, that the only States which can take advantage of a natural phenomenon which permits them to annex immense areas of subsoil and of the high seas, can profit from them exclusively, and can condemn those who are handicapped by geographical configurations to stand idly by in face of the immense riches secreted by their adjacent waters, and that to the profit of capitalist enterprises better endowed than their own and powerfully protected25. The immense riches disputed between the maritime Powers and Peru were the incalculable piscatory riches secreted by its epicontinental platform, which it was determined to preserve in order that the production of guano should not be prejudiced, in the interest of the national economy, which incidentally coincided with the interest of agricultural production throughout the world26.
Thus a common declaration by Peru, Chile and Ecuador proceeded to reinforce this claim in the following terms:
“Governments are bound to ensure for their peoples access to necessary food supplies and to furnish them with the means of developing their economy. It is therefore the duty of each Government to ensure the conservation and protection of its natural resources and to regulate the use thereof to the greatest possible advantage of its country. Hence it is likewise the duty of each Government to prevent the said resources from being used outside the area of its jurisdiction so as to endanger their existence, integrity and conservation to the prejudice of peoples so situated geographically that their seas are irreplaceable sources of essential food and economic materials. For the foregoing reasons the Governments of Chile, Ecuador and Peru, being resolved to preserve for and make available to their respective peoples the natural resources of the areas adjacent to their coasts, … declare as follows:
Owing to the geological and biological factors affecting the existence, conservation and development of the marine fauna and flora, … the former extent of the territorial sea and contiguous zone is insufficient … [for] those resources, to which the coastal countries are entitled … [They] therefore proclaim as a principle of their international maritime policy that each of them possesses sole sovereignty and jurisdiction over the area of sea adjacent to the coast of its own country and extending not less than 200 nautical miles from the said coast.
Their sole jurisdiction and sovereignty over the zone thus described includes sole sovereignty and jurisdiction over the sea floor and subsoil thereof …” [English text by the United Nations Secretariat.]
In succession, Costa Rica, El Salvador and Honduras adopted this concept, against which the maritime Powers did not fail to protest27. But their opposition did not succeed in muting the interventions of the representatives of the States at the Geneva Conference, any more than it muted the voices of eminent jurists who pointed out, particularly on the international Law Commission, the injustice which would be suffered by countries which did not possess a continental shelf, or only possessed one of a very small extent28. It is in fact necessary to consider whether these statements of position, particularly those of Peru, Chile and Ecuador, were not purely declaratory of an already established custom, and whether the objections of the maritime Powers were not in consequence belated.
In any event, the position of these States has been reinforced by two fresh facts.
In the first place, there is the Italian-Yugoslav Agreement of 8 January 1968 delimiting the whole breadth of the Adriatic Sea between the two parties 29. It is of course there stated that the delimitation deals with the continental shelf; but it is unnecessary to concentrate on the wording when the facts are clear. The depths of the area delimited, on average about 800 metres, in fact attain 1,589 metres. There is therefore no question of a continental shelf in the sense of Article 1 of the Geneva Convention, to which Yugoslavia has acceded, since the delimitation line is not merely beyond the 200 metres depth line, but also beyond the depths which, in the present state of technology, permit of the exploitation of the natural resources of the seabed, and this has not yet reached 200 metres. It is only exploration that has gone further. It is with the epicontinental platform, on the model of the countries of Latin America, that the agreement between Yugoslavia and Italy therefore deals.
The second fact is the claim by Saudi Arabia over the depths of the Red Sea, which has just been announced30. The Red Sea had been kept as a mare clausum under the authority of the Arabs and then of the Ottoman Empire up to the beginning of the 19th century. The Saudi Arabian declaration is said not to affect freedom of navigation. A correlation, from the geophysical point of view, between this sea, which has an average depth of 490 metres and reaches 2,359 metres, with the Adriatic Sea, is inescapable. A delimitation will undoubtedly be fixed by agreement between Saudi Arabia and the United Arab Republic which is opposite to it.
9 . A few extracts from the most outstanding statements made in the course of the Geneva Conference are appropriate to illustrate the problem with which we are dealing.
El Salvador, adopting a legal standpoint, accepted “the rights of the coastal State, not only over the continental shelf, but also over an exclusive fishing zone, and its rights to regulate the conservation of natural resources in zones of the high seas adjacent to that exclusive fishing zone, in the conviction that that view constituted recognition of the legal unity of different aspects of the law of the sea31”.
Ghana intervened in turn to raise the question of the economic and social interests of certain smaller States, including its own, a young country, which possessed a very narrow continental shelf as a result of a sharp drop of the seabed near the coast, and which depended almost exclusively on fisheries for its protein supply. The definition adopted by the Conference, it concluded, “might operate to the disadvantage of those countries32”. It was observed at the same Conference that the Ivory Coast is in an almost identical situation. The cry of alarm by Ghana, on behalf of the smaller countries, remains as witness to a disturbing reality.
The United Arab Republic proposed a fixed limit, whatever the depth of the sea, in order that “consideration should be given to the desire of countries without a continental shelf33”. Norway suggested that the limit should be based, not on the configuration of the seabed or the depth of the water, but on distance from the coast. Such a solution, “in the light of the principle of State equality, would be fairer34”. Guatemala thought it advisable to “provide for a new concept, which might perhaps be termed the ‘continental terrace’, comprising an area bounded by a line drawn at a given distance from the baseline of the territorial sea of the coastal State35”. Yugoslavia made a formal proposal for a limit situated 100 miles from the coast, i.e., half that adopted by Peru, Chile and Ecuador, in order to avoid recourse to a double criterion, the 200-metres depth criterion and that of the possibility of exploitation36.
The opinion of Panama was that “the term ‘continental base’ would be more accurate than ‘continental shelf, for the former referred to the continental shelf and the continental slope37”. Finally the Netherlands proposed, “in line with statements made by several representatives, including the representative of Panama, … that the whole of the ‘continental terrace’, which included both the continental shelf proper and the continental slope, should be covered by the articles38” of the Convention.
Finally, Chile, Ecuador and Peru made a common declaration confirming the one quoted above. In it they stated that “In the absence of international agreement on sufficiently comprehensive and just provisions recognizing and creating a reasonable balance among all the rights and interests, and also in view of the results of this Conference, the regional system applied in the southern Pacific … remains in full force” and they therein affirmed their resolve to assist “in the establishment and extension of a more just régime of the sea39”.
10 . It seems however that the Geneva Conference took a step in the direction of an extension of the continental shelf when it stipulated, in Article 1, that this extends to the 200-metres depth line or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the seabed and subsoil.
This fictitious extension of the continental shelf, effected by the Geneva Convention at the expense of the high seas, weakens the case of those who, having adopted it, oppose the claims of States which nature has not endowed with a continental shelf and which are able, by a similar fictitious extension thereof, to find legitimate compensation in the resources of the waters adjacent to their coasts40.
Inasmuch as the basic motivation of the claims of all concerned is economic in nature, it is fair that the interests of all States should receive satisfaction on a basis of equality. Equality in freedom had for centuries been adopted as a notion peculiar to the law of the sea, before being definitively extended by the Charter of the United Nations to every domain of the life of nations and of individuals, thus linking the tradition with Roman law, which discerned the idea of equality in the concept of equity41. Should not this idea remain the foundation of the law of the sea, and of any modification made or to be made to that law: equality as to the high seas, equality concerning the natural dependencies of the land, both for the continental shelf and for the epicontinental platform; consequently, equality in the delimitation of areas of the continental shelf, which is the question to be resolved in the present proceedings.
11 . Moreover, the claims of the majority of these countries go back as far as, if not further than, the principle of the freedom of the high seas. This freedom, hallowed by custom in the west since the 17th century, was not entirely free from legal limitations. There might be mentioned:
(a) Historic waters (gulfs, bays, etc.) such as the Gulf of Fonseca in Central America, assimilated to internal waters; the Gulf of the River Plate in Argentina; the Delaware and Chesapeake Bays in the United States; the Bays of Miramachi, Hudson and Chaleurs in Canada; the Gulf of Gascony and the Bay of Granville or of Cancale in France; the Bristol Channel in England; the Bay of Conception in Newfoundland; the Gulf of Manaar and the Bay of Polk in India: the Gulf of Finland; the Baie du Lévrier in Africa; the Bays of Tunis and Gabès in Tunisia; the Bay of El Arab on the Mediterranean coast of the United Arab Republic; the Arabian-Persian Gulf and the Gulf of Aqaba in the Arab seas42.
(b) Sedentary fisheries and fisheries with fixed equipment, the customary rules relating to which were adopted by the Geneva Convention of 29 April 1958 on the High Seas. There might be mentioned, as examples, the fisheries of Ceylon and Bahrain (Arabian-Persian Gulf), the coral banks in the Mediterranean off the coasts of Algeria, Sicily and Sardinia, and lastly innumerable fisheries in the Red Sea and in the seas of the Far East43.
(c) Preferential fishing zones possessed by or claimed by a certain number of States for special reasons of a vital economic nature, including Peru, Chile, Ecuador, United Arab Republic, Iceland, etc. 44
12 . In fact, the States which claim rights of this kind, from the States of Latin America to those of Europe, Asia and Africa, rely, according to the case, on historic title or on regional custom, which could not and cannot be prejudiced by the establishment of the custom of the freedom of the high seas, by reason of the priority or effectiveness of the former; whereas rights over the continental shelf are considered to be exercised ipso jure, without the aid of effectiveness.
These States can consequently avail themselves of the adage quieta non movere45, and take shelter behind situations consolidated by time46 which have changed into rules of law, no longer admitting for the future of any possible protests47. The feeling of society, it must be concluded, is in general favourable to the recognition of historic rights, whether such recognition be shown by the conduct of States, by judicial or arbitral decisions, or in the teaching of publicists. Furthermore the possibility is not excluded of similar legal situations coming to birth by the normal operation of legal creation.
13 . It must, of course, be added that the fact that Articles 1 to 3 of the Convention on the Continental Shelf are not subject to any reservations at the time of the signature or ratification of the Convention, does not involve any contradiction or incompatibility between the concept of the continental shelf and that of the epicontinental platform; the area of the platform would simply have to be added, when appropriate, to the area of the shelf. Thus the Declaration by Argentina of 9 October 1946 proclaims its sovereignty over both these areas simultaneously48. The Declaration by Mexico of 29 October 1945 claiming exclusive fishing zones beyond the continental shelf has been interpreted as expressing the same conception49. Similarly in the course of the Geneva Conference, proposals were formulated to join the continental slope to the shelf. To sum up, the situation is that the concept of the epicontinental platform does not constitute a derogation from the definition of the continental shelf in Article 1; the shelf and the platform are not mutually exclusive; in the present stage of development of law, they are called upon to supplement each other in order to meet factual situations differing in some ways and resembling each other in many others.
It will therefore be impossible henceforth to consider the concept of the continental shelf without having regard to the parallel or supplementary concept of the epicontinental platform.
∗ ∗ ∗
14 . Two supplementary questions remain, which should be resolved in order to give a complete picture of the concept or the legal status of the continental shelf, satisfying the requirements of the arguments in the present case:
(a) Is the continental shelf referable to the concept of contiguity, or should it be considered rather as a natural submarine prolongation of the land territory of the coastal State?
(b) Does the continental shelf consist of an extension of territorial sovereignty, or does it simply confer rights, either sovereign rights or exclusive rights?
15 . Is the continental shelf referable to the concept of contiguity, or should it be considered rather as a natural submarine prolongation of the land territory of the coastal State?
The argument of contiguity put forward in the Counter-Memorials and in the course of the speeches made by the representatives of Denmark and the Netherlands, to the effect that the submarine areas nearest to a State are presumed to appertain to it rather than to another State, is claimed to follow from the actual definition of the continental shelf given in Article 1 of the relevant Convention and to be inherent in the idea that that State possesses ipso jure a title to these areas or exclusive rights over them, and thus a direct and essential link—in other words, a link that is inherent and not merely implicit—founded on the ratio legis of the fundamental concept of the continental shelf is said to have been established between that concept and the delimitation rule of Article 6.
This view would not seem to be accepted as a rule of international law, as is clear, in particular, from the Award dated 23 January 1925 in the Island of Palmas case. That Award, delivered by one of the three great Swiss arbitrators, M. Huber, stressed that “it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size)”.
This decision, which is generally accepted, also, by analogy, resolves the case of submarine areas.
The line of argument advanced in the Counter-Memorials is also categorically refuted by previous judicial decisions inasmuch as, in the interpretation of the texts, it openly violates the natural meaning of the words, when it maintains that the term “adjacent” which appears in Article 1 of the Convention on the Continental Shelf is the equivalent of the term “equidistant”, and proceeds to deduce therefrom that the said Article which defines the continental shelf at the same time determines the rule by which it is to be delimited, namely the equidistance rule. But if such had been the intention of the authors of the Convention, they would have expressed it, instead of allowing it to be deduced in such a laborious fashion. Further, nothing is to be found in the travaux préparatoires in support of this opinion, as the Court has shown by referring to the documents of the International Law Commission and the Committee of Experts. On the other hand, the use of the term “adjacent” is naturally explained by an intention to confine the continental shelf to a limited part of the high seas, that part which prolongs the coast, to the exclusion of the open sea. It would moreover be difficult to accept that, contrary to good legislative technique, the subtleties and consequences of which were well known to them, the authors of the Convention used in the same sense two absolutely different words. The term “adjacent” refers only to the fact of the reciprocal situation of two territories or of two neighbouring maritime areas. The term “equidistant”, on the contrary, relates to a measurement to be determined between the two territories or the two adjacent maritime areas.
Finally, it would not be superfluous to stress the seriousness of the consequences which the acceptance of this argument would involve. It would justify territorial or maritime acquisitions repugnant to the fundamental principles of contemporary international law: for example the appropriation of large areas of the Arctic Ocean and the Antarctic Continent, an appropriation which also relies on the doctrine of sectors, which doctrine, in certain of its elements, is reminiscent of the abandoned concept of spheres of influence; for example also, the policy derived from the Berlin Treaty of 1885, which, having divided up Africa, considered as res nullius, permitted extension of sovereignty starting from the coast which had been effectively occupied. And should there not be added to these examples the doctrine of Lebensraum extending beyond the bounds of a country?
16 . The continental shelf is to be conceived, on the contrary, as a submarine prolongation of the territory: a natural prolongation, without breach of continuity. It is not therefore a question of a debatable legal fiction, but of geological reality.
It was this idea which was adopted as basis by the States which led the way in respect of claims over the continental shelf (United States)50, or over the epicontinental platform (Mexico, Argentine, Peru)51. The authority of legal writers is generally favourable to it52, and the International Law Commission made it its own.
This concept can also be deduced from the concept, universally recognized, of the territorial sea, which is itself a prolongation or extension of the national territory.
It is, however, necessary to make a reservation; namely that there must not be deduced from the unity of the territory and of the continental shelf or the platform, a unity of legal régime. The difference will appear in the course of examination of the following question concerning the rights of coastal States.
Judicial decisions support this reasoning, with a Judgment of this Court itself, that of 18 December 1951 in the Anglo-Norwegian Fisheries case, according to the terms of which “it is the land which confers upon the coastal State a right to the waters”, which can just as well include the bed of the waters. It is moreover apparent that the Geneva Conference was guided by this Judgment in its conception of the continental shelf.
∗ ∗ ∗
17 . Does the continental shelf consist of an extension of territorial sovereignty, or does it simply confer rights, either sovereign right or exclusive rights?
The conduct of States is various and subject to change. Nonetheless three attitudes may be discerned which correspond to the three possibilities comprised in the last question raised, in order to round off the question of the legal status of the continental shelf; a North American attitude which holds fast to the notion of exclusiveness; a South American attitude claiming territorial sovereignty; and lastly the Geneva attitude, which culminated in the Convention sanctioning rights qualified simultaneously as sovereign and exclusive.
The Truman Proclamation claimed an exclusive right over the continental shelf, and without claiming to exercise formal sovereignty thereover, nonetheless affirmed that the American Government regarded the natural resources of the subsoil and of the seabed and of the continental shelf, beneath the high seas and contiguous to the coasts of the United States, as appertaining to it and subject to its jurisdiction and control.
The series of declarations which followed did not all refrain from proclaiming the sovereignty of the coastal State over the bed and subsoil of the high seas. This was the case with the majority of the States of Latin America which extended their sovereignty for 200 nautical miles over the epicontinental platform, or beyond.
As for the Geneva Conference, after wavering between the concepts of exclusive rights and sovereign rights, it opted for the latter in Article 2, paragraph 1, of the Convention, and in paragraph 2 of the same Article, it described the sovereign rights as exclusive.
The United States, mentioned above, ranged itself on the side of this latter concept by ratifying the Convention.
18 . Nonetheless, however varied State practice may be, it should be possible to make it subject to a dual criterion. The rights which coastal States can exercise over the continental shelf or the epicontinentai platform are capable of being determined as a group by the economic objectives given for them, and by the consideration that the freedom of the high seas should not be affected except to the extent required for the realization of these objectives. In other words, since it is a question of a principle of the law of nations from which economic, social and political development, as well as scientific and technological progress, may bring about necessary derogations, the rights which the coastal State can exercise over the continental shelf or the epicontinental platform should be limited to those which can be justified from the standpoint of the realization of the ends for which they were instituted, that is to say, generally speaking, the exclusive exploitation, as against other States, of submarine resources in the one case, or of fishing in the other.
As to the sovereign character attributed to these rights, it would appear, in the three situations to which attention has been drawn, to be a case of a somewhat dismembered territorial sovereignty, of which certain attributes are exercised over the continental shelf or the epicontinental platform. The legal content of the sovereign rights remains limited to those acts which are strictly necessary for the exploration, exploitation or protection of the resources of the continental shelf, to the exclusion of the waters and of the area lying above them. In the same way, the legal content of what has been called sovereignty by the States of Latin America is limited to the objects mentioned above, to which is to be added fishing, excluding freedom of navigation and the right to lay and maintain cables and pipelines. There would thus be no question, in any case, of sovereignty in the form in which it is exercised over the territorial sea.
19 . The dual criterion of the economic objectives given for the rights of coastal States and of respect, to the necessary extent, of the freedom of the high seas, naturally excludes the use of the continental shelf, just as of the high seas, for military purposes. The freedom of the high seas, a principle of positive international law, remains sacrosanct so long as a rule of the same nature has not subjected it to restrictions by specifying individual rights which States would be empowered to exercise therein53.
20 . It will hereinafter be established that the three Parties to the present case are bound by the provisions of the aforementioned Article 2 of the Geneva Convention on the Continental Shelf, the Netherlands and Denmark by having ratified the Convention, and the Federal Republic of Germany by having acquiesced in the application to it of that same Article.
∗ ∗ ∗
21 . The concept of the continental shelf being recognized, together with the rights exercised thereover, as forming part of customary international law, the request made of the Court by the Parties involves first of all the following question:
Does there exist a general or particular convention, within the meaning of Article 38, paragraph 1 (a), of the Statute of the Court, containing rules applicable to the delimitation between coastal States of the areas of the continental shelf of the North Sea which they claim?
The Governments of the Kingdom of the Netherlands and the Kingdom of Denmark rely on the provisions of Article 6 of the Geneva Convention on the Continental Shelf of 29 April 1958 for the delimitation of the areas of the North Sea continental shelf.
The Government of the Federal Republic of Germany, which has not ratified the Convention, has also not recognized the relevant dispositions of Article 6, relied on by the Governments of the Netherlands and Denmark, as it has done in the case of the first two articles of the said Convention54.
The conduct of the Federal Republic and certain declarations made by it have however been interpreted by the opposing Parties as amounting to a commitment on its part to submit to the provisions of Article 6 of the Convention.
The Court, in its study of the effects of the declarations made by or the conduct of a State, concludes—“that only the existence of a situation of estoppel could suffice to lend substance to this contention [sc., that the Federal Republic of Germany is bound by its declarations]—that is to say if the Federal Republic were now precluded from denying the applicability of the conventional régime, by reason of past conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that régime but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice”.
The Judgment does not take into account a well-settled doctrine that a State may be bound by a unilateral act55.
As a consequence of its argument, the Judgment mentions in paragraph 31 that—“it seems to the Court that little useful purpose will be served by passing in review and subjecting to detailed scrutiny the various acts relied on by Denmark and the Netherlands as being indicative of the Federal Republic's acceptance of the régime of Article 6”.
While agreeing with the Judgment that Article 6, as such, is not applicable to the delimitations envisaged in the present cases, I consider that the unilateral acts and the conduct of the Federal Republic should be analysed in order to clinch this conclusion.
22 . The Federal Government's delegation announced, as is mentioned in the minutes of the negotiations with the Netherlands Government dated 4 August 196456, that its Government “is seeking to bring about a conference of States adjacent to the North Sea … in accordance with the first sentence of paragraph 1 and the first sentence of paragraph 2 of Article 6 of the Geneva Convention on the Continental Shelf” and that “the Netherlands delegation has taken note of this intention”. But this commitment, expressly limited to two provisions of Article 6 concerning the advisability of preferably having recourse to agreements for the delimitation of the continental shelf, cannot be interpreted as a declaration referring to the whole of the provisions of that Article. The letter of the text is categorically opposed to such an interpretation. In particular, the provision concerning delimitation of the continental shelf by application of the equidistance rule remains outside this commitment.
An attempt has nonetheless been made to see in the treaties of 1 December 1964 and 9 June 1965, between the Federal Republic of Germany on the one side and the Kingdom of the Netherlands and the Kingdom of Denmark on the other, an acquiescence in the application of the equidistance rule.
Acquiescence flowing from a unilateral legal act, or inferred from the conduct or attitude of the person to whom it is to be opposed—either by application of the concept of estoppel by conduct of Anglo-American equity, or by virtue of the principle of western law that allegans contraria non audiendus est, which has its parallel in Muslim law57—is numbered among the general principles of law accepted by international law as forming part of the law of nations, and obeying the rules of interpretation relating thereto. Thus when the acquiescence alleged is tacit, as it would be in the present case inasmuch as it is inferred from the conduct of the party against whom it is relied on, it demands that the intention be ascertained by the manifestation of a definite expression of will, free of ambiguity.
But the Federal Government formally declared in the joint minutes of 4 August 1964, referred to above, that “it must not be concluded from the direction of the proposed partial boundary that the latter would have to be continued in the same direction”. It was also mentioned in the Protocol to the German-Danish Treaty of 9 June 196558, that “as regards the further course of the dividing line, each Contracting Party reserves its legal standpoint”.
Considering that the negotiations which culminated in the treaty of 1 December 1964, as well as those which culminated in the treaty of 9 June 1965 and the annexed Protocol of the same date, constitute an indivisible whole, the Court cannot disassociate therefrom the declarations mentioned above of 4 August 1964 and 9 June 1965 which brought each set of negotiations to a close, and of which the meaning does not lend itself to any equivocation, and is such as not to allow any doubt to subsist as to the intention of the Federal Republic of Germany to exclude the application of equidistance pure and simple to the delimitation beyond latitude 54 degrees north. There is in fact no reason why, in the interpretation of unilateral declarations, the settled jurisprudence of the Court should not be followed, to the effect that the terms of the treaty should be interpreted “in their natural and ordinary meaning59”. It should also be remarked that the German-Danish treaty allegedly includes only one equidistance point, the terminal of the partial boundary60.
It would be no less incorrect to say, as a result of similar reasoning concerning the true intention of the Federal Government, that the latter, by its Proclamation of 20 January 1964 and the exposé des motifs of the law on the continental shelf which it promulgated on 24 July of the same year, “acknowledges the Geneva Convention as an expression of customary international law”, as the other Parties to the case claim61. Nor is this in fact the case as regards the provisions of the 1958 Convention concerning the equidistance line, which could naturally not acquire, by means of a recognition which for the purposes of argument we will suppose to be efficacious, the status of a customary law rule which it does not possess62.
Furthermore, what legal effect should be attributed to the signature by the Federal Republic of Germany of the Protocol for Provisional Application of the European Fisheries Convention of 9 March 1964, Article 7 of which provides for recourse to the median line, every point of which is equidistant from the coasts of each of the adjacent or opposite parties? The commitment of the Federal Republic to the application of the equidistance line to fishing zones, which it confirmed by the aidemémoire of 16 March 1967, is not open to argument. But does its scope, exceeding the object for which it was agreed, extend to the continental shelf? The reply is more than doubtful, because of the express opposition by the Federal Government to the application of the equidistance line, in the documents which have successively been discussed, dated 4 August 1964, 9 June 1965, 20 January 1964 and 24 July 1964. Such seems to be the interpretation to be given to the intention of the Federal Republic.
This being the case, the Court does not have to embark, in addition, on an enquiry into the private thoughts of the Federal Republic, as the Netherlands Government calls upon it to do, by asking in its Counter-Memorial why the Federal Republic stressed, in the minutes of 4 August 1968, that the boundary should be determined with due regard to the special circumstances prevailing in the mouth of the Ems, if it did not have in mind the terms of paragraph 2 of Article 6 of the Geneva Convention, i.e., the equidistance rule.
It is not therefore possible to interpret the treaties of 1 December 1964 and 9 June 1965, between the Federal Republic on the one side, and the Netherlands and Denmark on the other, in the light of the minutes of 4 August 1964 and the Protocol of 9 June 1965, nor the declaration of the Federal Government of 20 January 1964 and the exposé des motifs of the law of 24 July of the same year, as an acquiescence in the application of the equidistance line as contemplated in the Convention of 29 April 1958 on the Continental Shelf.
∗ ∗ ∗
23 . To sum up the delimitation between the Parties of the areas of the North Sea continental shelf over which they claim sovereign rights is not governed by the provisions of Article 6 of the Geneva Convention of 29 April 1958 on the Continental Shelf, which applies the principle of equidistance.
There is therefore no need to embark on the interpretation of the provisions of the said Article 6 as a legal text binding on the Parties. Nonetheless, we may subsequently return to this point, if the adoption of the concepts included in it could afford inspiration for a solution drawn from another source of law, such as a general principle of law recognized by the nations.
∗ ∗ ∗
24 . In the absence of an international convention establishing rules expressly recognized by the Parties to the dispute, do not principles or rules of customary international law exist which are applicable to the delimitation of the continental shelf?
And in the event of there being no general custom, might there be a regional custom peculiar to the North Sea?
The Kingdoms of Denmark and of the Netherlands have contended that having fixed the boundaries of their parts of the continental shelf on the specific basis of the principles and rules of law generally recognized, those boundaries are not prima facie contrary to international law and are valid as against other States. They base their contention on the provisions of Article 6, paragraph 2, of the Geneva Convention on the Continental Shelf, according to which, in the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is to be determined by application of the principle of equidistance from the baselines from which the breadth of the territorial sea of the adjacent States in measured.
The unilateral action on which the Danish and Netherlands Governments rely would have been opposable to other States and consequently to the Federal German Government, if the rule of delimitation to which they attribute an effect erga omnes had become a norm of positive international law binding States which, like the Federal Republic, are not parties to the 1958 Convention.
As has been seen, Articles 1 and 2 of the said Convention, which establish the institution of the continental shelf, were not the result of a codification of the international law in force, forming part of the lex lata, but the effect of the progressive development of the law, de lege fererida, referred to in Article 13 of the Charter of the United Nations and Article 15 of the Statute of the International Law Commission. The case of the provisions of Article 6, paragraph 2, could not be different, inasmuch as they apply the principle laid down in Articles 1 and 2.
Has this progressive development of the law reached the stage, in respect of what is stated in paragraph 2 of Article 6, of settled custom, since the adoption of the equidistance method by the International Law Commission in 1953, and subsequently by the Geneva Conference in 1958, in both cases by a very large majority?
Admittedly, the notion of the continental shelf itself, which made its first appearance in State practice in 1945, took only a dozen years to become a universally recognized custom. The voices of authoritative writers63 and jurists of all kinds, at international conferences, were unable to stem the current of legal thinking resulting from unprecedented scientific progress and the rapid development of the economic and social life of the nations. That is to say that this recent rule of the law of the sea, under the pressure of powerful motives and thanks to State practice and the effect of international conventions, was within a short time converted into a customary law meeting the pressing needs of modern life.
Can the same be said of the concept of equidistance in Article 6 of the Geneva Convention?
It is necessary to ascertain, in a first limb of the discussion, what State practice has been, both before the date of the Convention of 29 April 1958 on the Continental Shelf and after that date.
∗ ∗ ∗
25 . One prior question calls for resolution: what are the acts of delimitation which must be tabulated in order to select those which have contributed to the formation of the material element of custom, both with reference to the nature of the waters delimited, and with reference to the situation of the coastal States of those waters, adjacent States and opposite States.
The Court has considered that only delimitations concerning the continental shelf and made between adjacent States can be taken into account as precedents. It seems however that the acts which must be taken into account in this investigation are, with reference to the nature of the waters, all those pertaining to the delimitation of maritime waters of whatever kind: territorial seas, straits, contiguous zones, fishing zones, continental shelf, epicontinental platform—to which must be added lakes. The underlying concept common to all these stretches of water, which is decisive by way of analogy, is that they all proceed from the notion of the natural prolongation of the land territory of the coastal States64. Thus, the 1953 Committee of Experts, drawing no distinction in this connection between the territorial sea and the continental shelf, wrote in its report that it had “considered it important to find a formula for drawing the international boundaries in the territorial waters of States, which could also be used for the delimitation of the respective continental shelves …”.
On the other hand, it is obvious that boundary lines dividing rivers should not be selected as precedents. Moreover, such boundary lines follow the thalwegs or the navigable channels much more frequently than the middle of the stream.
The acts of delimitation with reference to adjacent or opposite States require more detailed examination.
All such acts should be drawn on, again on the ground of their common underlying concept. The example has been set by the three conventions adopted at Geneva concerning respectively the territorial sea, the contiguous zone and fishing zones. All three take, in so many words, as their basis for delimitation “the median line every point of which is equidistant from the nearest points on the baselines …”. And those conventions laid it down that this provision was applicable to lateral delimitations just as to delimitations between opposite States65.
Should not this assimilation between these two types of delimitation be reflected in the interpretation of Article 6 of the Convention on the Continental Shelf, even though the two different terms, median line and equidistance line, are there employed?
It is imperative in the present case to interpret the Convention on the Continental Shelf in the light of the formula adopted in the other three conventions, in accordance with the method of integrating the four conventions by co-ordination. For the four conventions, voted on the same day at one and the same meeting, constitute a body of treaties all falling within the same legal framework, that of the law of the sea. Thus they were drawn up by the International Law Commission of the United Nations and submitted to the Geneva Conference in a single document. Must it not consequently be agreed that, notwithstanding the differences of wording, or the disparity between the terminology noticed in the three conventions mentioned on the one hand, and the Convention on the Continental Shelf on the other, the same equidistance rule is applicable, according to the meaning of the four conventions, to lateral delimitations just as to median delimitations?
It will be noticed that the rule having been understood in this way in international circles, the 13 States which signed the Convention concluded in London on 9 March 1964 took over word for word from the three above-mentioned Geneva conventions their common formula for States lying opposite or adjacent to each other.
If nevertheless the text of the Convention on the Continental Shelf emerged from the deliberations of the conference with a wording different from that of the other three conventions, that fact is to be attributed to the contingencies of discussion at a meeting. Delimitations both between adjacent States and between States lying opposite each other formed the subject, before the International Law Commission, of a single form of words covering both situations. The fact that they were mentioned, in the convention drawn up during the conference in separate paragraphs of Article 6, and that the two texts were drafted in somewhat different terms, is to be explained by the vicissitudes of discussion in two Committees, and does not permit of the deduction therefrom of a difference between a median line applicable to States lying opposite each other and an equidistance line for demarcating the boundary between adjacent States. The travaux préparatoires are no less explicit, in this respect, than the clarity of the terms employed in the four conventions concerning the law of the sea, which refer, as to a single whole, to the median line and equidistant points as applicable to adjacent States and States lying opposite each other. This amounts to saying, in short, that the notion of equidistance is the rule for both sorts of delimitation.
∗ ∗ ∗
26 . The instruments prior to the Convention on the Continental Shelf, concerning the delimitation of maritime waters—territorial sea, straits, lakes, contiguous zone, fishing zones, continental shelf, epicontinental platform—could not be more varied in nature.
It will subsequently be seen that the proclamations and other pronouncements made in 1945 by the United States, in 1947 by Nicaragua, in 1949 by Saudi Arabia and the States of Kuwait, Bahrain, Qatar, Abu Dhabi, Sharjah, Ras al Khaimah, Umm al Qaiwain and Ajman, and in 1955 by Iran, all relied on justice or equity. This was the largest group of States.
The treaty of 27 September 1882 between Mexico and Guatemala, as well as the decree of the Government of Cambodia of 30 December 1957, adopted the method of a line perpendicular to the coast.
The method of extending the land frontier seawards was followed in the decree of the French Government of 25 May 1960, confirming the agreement between France and Portugal concerning Senegal and what is referred to as Portuguese Guinea. The same was done in respect of the boundaries laid down in 1953 under the Australian pearl fisheries legislation of 1952–1953.
The delimitation of the epicontinental platform between Chile, Ecuador and Peru followed geographical parallels of latitude.
The Agreement of 15 June 1846 between the United States and Canada, and the 1928 Act endorsing the Agreement of 19 October 1927 between Singapore and Johore both follow the channel between the two coasts.
A number of agreements were noted which opted for equal division, employing the following expressions: “equidistant from” or “half-way between” the coasts, or along “the middle line”. Such were, for example, the Agreement of 11 April 1908 between the United States and Great Britain, the Agreements of 28 September 1915 between Malaysia and Indonesia, of 28 April 1924 between Norway and Finland, the Peace Treaty of 4 January 1932 between Italy and Turkey, the Agreements of 30 January 1932 between Denmark and Sweden, and those of the Peace Treaty with Italy of 10 February 1947, delimiting the territorial waters of Trieste, and, finally, the Agreement of 22 February 1958 between Saudi Arabia and Bahrain.
Delimitations of lakes sometimes referred to the median line or the middle of the water, sometimes to the thalweg, and sometimes followed the banks of the lake or did not purport to be based on any method.
A rather special case was that of the Agreement of 25 February 1953 between France and Switzerland for the delimitation of the Lake of Geneva along “… a median line and two transversal arms …”, this line being “replaced, for practical reasons by a six-sided polygonal line with a view to effecting a compensation as between the areas”.
Finally, a number of agreements and other instruments made no reference to any method whatsoever. This was the case with the Agreements of 1918 between China and Hong Kong and of 1925 between the United States and Canada; the 1942 treaty between the United Kingdom and Venezuela and the 1957 Agreement between the Soviet Union and Norway.
∗ ∗ ∗
27 . It does not seem that any conclusion can be drawn from these extremely varied formulae which have been employed, unless it be that they constitute a set of methods to which States might freely have recourse in order to reconcile their respective interests. Accordingly, the use of one method or another, not excepting that which employs the median line, does not indicate any opinio juris based on the awareness of States of the obligatory nature of the practice employed.
28 . Since the above-mentioned acts adopting the median line or the equidistance line are not capable of creating a custom, it remains to be seen whether those which have occurred since the signature of the Convention on the Continental Shelf, by being added thereto, have had this effect.
In order to resolve this question, the Court argues that a norm-creating convention has, as such, an influence on the formation of custom. The function of State practice is envisaged, on this line of reasoning, as being appropriate cases to support the potentially norm-creating nature of the convention.
It appears to me that this reasoning is contrary to both the letter and the spirit of Article 38, paragraph 1 (b), of the Court's Statute, which bases custom on Slate practice. The 1958 Convention, like any other convention, has therefore no other influence on the formation of custom than that which is conferred upon it by the States who have ratified it, or have merely signed it: the deliberate legal act of ratification, and the legal fact of signature, both constitute attitudes which count in the enumeration of the elements of State practice.
29 . Consequently, in order to draw up as complete as possible a current list of precedents of such a kind as to contribute towards the transformation of the equidistance method into a rule of customary law, it would be necessary to tabulate:
(a) the deliberate legal acts of ratification of the aforesaid Conventions;
(b) the legal facts of signature of the Conventions;
(c) the various acts of delimitation of the territorial sea, the contiguous zone, fishing zones, straits, lakes, the continental shelf and the epicontinental platform.
States whose acts of delimitation have been referred to and which are included under sub-paragraphs (a) and (b) include: the Soviet Union, Finland, Australia, the United Kingdom, Sweden, Denmark, the United States and the Federal Republic of Germany. There is thus no need to include them once again among the total number of States which have carried out acts of delimitation.
In addition to the above-mentioned States, the Netherlands and Denmark mention in their Common Rejoinder those which have opted for the equidistance line.
So far as Kuwait is concerned, the representatives of the Federal Republic argued that its agreement with the concessionary company could not be regarded as a precedent, since it was not a convention between States.
Numerous concessions under public law have given rise to judicial precedents in various questions of international law. Nevertheless, an agreement concerning a concession by a State to a company does not, per se or as such, constitute an element of the practice which contributes to the creation of international custom. It is only by a legitimate assimilation of the position taken up by the State granting the concession, to a unilateral act, that the case of Kuwait might be considered. Nevertheless, the attitude which is attributed to it, like that attributed to Iran, demands careful thought. They might have been considered as precedents contributing towards the establishment of custom if those States had not refrained from referring to the equidistance method, although their legal advisers must assuredly have been aware of the discussions that had taken place at the Geneva Conference. The inmost thoughts of those States cannot be plumbed, so as to claim that an opinio juris attached to the demarcations which they made without referring to a rule they believed themselves obliged to apply. The more so in that on account of the steps taken by each of them in drawing lines of demarcation of their continental shelves one cannot help looking back to their respective declarations of 1947 and 1955, in which they specified that they would rely in this connection on the notion of equity.
So far as Iraq is concerned, it was stated in the Rejoinder that that State “automatically considered that the equidistance principle expressed in Article 6 of the Continental Shelf Convention would govern the delimitation of her continental shelf in the absence of an agreement or of special circumstances justifying another boundary line66”. But the declaration of Iraq was made on 10 April 1958, i.e., before the signature of the Geneva Convention; the reference to Article 6 thereof is consequently out of place. The Iraqi declaration can nevertheless be taken into consideration, like the Truman Proclamation, as starting a trend towards a new custom.
The Agreement between the United Kingdom and Norway, signed on 10 March 1965, which adopted the equidistance rule, constitutes another precedent. The same can be said of the Agreement of 8 December 1965 between Denmark and Norway, the Proclamation of 30 March 1967 by the President of the Republic of Tanzania concerning the delimitation of the territorial sea between Tanzania and Kenya, the Agreement of 20 March 1967 between Morocco and Spain dealing with the Straits of Gibraltar, and the Agreement of 24 July 1968 between Sweden and Norway.
But what view should be taken of the attitude of Belgium? Although it did not sign the Convention on the Continental Shelf, the Belgian Government, in a Note of 15 September 1965 from the Belgian Embassy to the Netherlands Ministry of Foreign Affairs, stated that “the two countries are in agreement on the principle of equidistance and on its practical application”. Furthermore, the provisions of the Convention on the Continental Shelf were adopted in a bill, accompanied by an exposé des motifs which was submitted to the Chamber of Representatives on 23 October 1967. The bill, while totally devoid of legal effect, nevertheless expresses the official point of view of the Government. It constitutes one of those acts within the municipal legal order which can be counted among the precedents to be taken into consideration, where appropriate, for recognizing the existence of a custom. In any event, the attitude of the Belgian Government is expressed without any possible equivocation in the statement contained in the State to State communication of 15 September 1965, to which the character of precedent cannot be denied67.
Furthermore, since the European Fisheries Convention of London of 24 March 1964 adopted the equidistance formula on the model of the Geneva Conventions on the Territorial Sea, the Contiguous Zone and Fishing Zones68, it should be noted that seven States which are not parties to those conventions signed the London Convention. They are to be added to those States, already mentioned, which have applied the equidistance method.
Thus, finally, in the course of the decade which has elapsed since the institution of the new rule by treaty, a dozen States not parties to the 1958 Convention on the Continental Shelf can be counted which have opted, in addition to the signatory States of that Convention, for the equidistance method.
However important these precedents may be, and despite the fact that those relating to all kinds of waters have been drawn upon, their number amounts to only about half of that of the international community. It is difficult to find in this elements capable of constituting the generally accepted practice of Article 38, paragraph 1 (b), of the Statute of the Court.
30 . There is a textual argument which is of all the more account in that it firmly confirms this view of the matter. It is that drawn from Article 12 of the Convention on the Continental Shelf, which makes a distinction between Articles 1 to 3 and all the other articles, by providing that to the former alone no reservations may be made. The Court has dealt extensively with this point, and I need only refer to it in order to add that the power to subject the implementation of the provisions of Article 6 to reservations implies the absence, in the minds of the signatories of the Convention, of the opinio juris sive necessitatis. The latter requires consciousness of the binding nature of the rule, and it is self-evident that a rule cannot be felt to be binding when the right not to apply it is reserved.
The conclusion cannot therefore be avoided that the equidistance method of Article 6 of the said Convention of 29 April 1958 has not acquired the nature of a customary rule which it did not have formerly.
∗ ∗ ∗
31 . Nor are there to be found therein the elements which go to make up a regional custom. For while a general rule of customary law does not require the consent of all States, as can be seen from the express terms of the Article referred to above—but at least the consent of those who were aware of this general practice and, being in a position to oppose it, have not done so 69—it is not the same with a regional customary rule, having regard to the small number of States to which it is intended to apply and which are in a position to consent to it. In the absence of express or tacit consent, a regional custom cannot be imposed upon a State which refuses to accept it. The International Court of Justice expressed this clearly in its Judgment of 20 November 1950 in the Asylum case in the following terms: “The Party which relies on a custom of this kind [sc., regional or local custom] must prove that this custom is established in such a manner that it has become binding on the other Party70.”
Accordingly, the Federal Republic of Germany cannot be bound by a so-called regional customary rule which it rejects. It has expressly recorded its opposition to the rule in question; firstly in its Reply of 26 August 1963 to the note verbale from the Netherlands Embassy in Bonn; and subsequently in the Special Agreement of 2 February 1967, in which the Government of the Netherlands took formal note of this, as did the Government of Denmark. Moreover, in its Proclamation of 20 January 1964, the Federal Government distinguished between the principle of the continental shelf itself and the rules concerning its delimitation71.
∗ ∗ ∗
32 . Consequently it cannot be accepted, as the Governments of the Kingdoms of Denmark and of the Netherlands maintain, that the rule in Article 6 of the Geneva Convention concerning the delimitation of the continental shelf has acquired the character of a general rule of international customary law or that of a regional customary rule.
The equidistance line having been rejected as a rule of positive law, recourse may be had to it, after the fashion of those States which have applied it voluntarily, as a method which can, subject to necessary rectifications in accordance with the circumstances, ensure an equitable delimitation.
Thus it is necessary in the last analysis to have regard to the general principles of law recognized by nations.
However the Court has not considered that it should do this; it has taken the view that, failing a method of delimitation which the Parties are bound to use, they should be called upon to negotiate an agreement by the application of equitable principles.
The equity which the Court recommends to the Parties' consideration would appear to be nothing other than justice: “whatever the legal reasoning of a court of justice”, says the Judgment, “its decisions must by definition be just, and therefore in that sense equitable”. The Judgment arrives at the obvious truth that it is necessary to be just, and does not give much indication to the Parties, each of whom considers that its own position is equitable.
What is just is however not always equitable, witness the well-known adage: summum jus summa injuria. And it is in order to mitigate this inconvenience of strict justice that recourse may be had to equity whose role is to moderate the rigour of law.
The truth of the matter is that the principle of equity which must be applied is not the abstract equity contemplated by the Judgment, but that which fills a lacuna, like the principle of equity praeter legem, which is a subsidiary source of law. Contrary to the opinion of the Court, there is a lacuna in international law when delimitation is not provided for either by an applicable general convention (Article 38, paragraph 1 (a)), or by a general or regional custom (Article 38, paragraph 1 (b)). There remains sub-paragraph (c), which appears to be of assistance in filling the gap. The question which arises is therefore as follows:
33 . Does there exist a general principle of law recognized by the nations, as provided for by Article 38, paragraph (c), of the Statute of the Court, from which would follow a rule to the effect that the continental shelf could, in case of disagreement, be delimited equitably between the Parties?
It is important in the first place to observe that the form of words of Article 38, paragraph 1 (c), of the Statute, referring to “the general principles of law recognized by civilized nations”, is inapplicable in the form in which it is set down, since the term “civilized nations” is incompatible with the relevant provisions of the United Nations Charter, and the consequence thereof is an ill-advised limitation of the notion of the general principles of law72.
The discrimination between civilized nations and uncivilized nations, which was unknown to the founding fathers of international law, the protagonists of a universal law of nations, Vittoria, Suarez, Gentilis, Pufendorf, Vattel, is the legacy of the period, now passed away, of colonialism, and of the time long-past when a limited number of Powers established the rules, of custom or of treaty-law, of a European law applied in relation to the whole community of nations. Maintained and sometimes reinforced at the time of the great historical settlements—Vienna 1815, Berlin 1885, Versailles 1920, Lausanne 1923, Yalta 1945—European international law had been defended by jurists of indisputable authority in the majority of branches of international law, such as Kent, Wheaton, Phillimore, Anzilotti, Fauchille, F. de Markas, Westlake, Hall, Oppenheim, Politis: thus the last-mentioned writer's La morale internationale is striking by reason of the fact that it is centered on Europe alone and Europe's exclusive interests. However great and powerful the thinking of these renowned jurists may be, their concept of a family of European and North Atlantic nations is nonetheless beginning to be blurred by the reality of the universal community, in the thinking of the internationalists of a new age such as S. Krylov, M. Katz, W. Jenks and M. Lachs. What is more, the universalist jurists of Europe had been preceded by those of Asia and the Middle East: Sui Tchoan-Pao, Bandyopadhyoy, Rechid.
Whether the adepts in the notion of the law recognized by civilized nations assess degrees of civilization by reference to the competence of authority to preserve the rights of foreigners73, or to its power to ensure the protection of the fundamental rights of the human person74, it is impossible to avoid the thought that the colonial régime should not have been excluded from the factors of assessment belonging to one or other of these criteria, since the colonized were foreigners vis-à-vis the colonizers, and had been deprived of certain of their fundamental rights75.
Moreover, the discrimination condemned by writers is in absolute contradiction with the provisions of the United Nations Charter, stipulating henceforward “the sovereign equality” of all the Member nations, and for their participation both in the elaboration of international law in the organs of the United Nations, particularly the International Law Commission on which all nations are called upon to sit. and in the application, interpretation and to a certain extent the development and evolution of international law, by virtue of Article 9 of the Statute of the Court, according to which “the electors shall bear in mind … that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured”.
Thus it is that certain nations, to whose legal systems allusion was made above, which did not form part of the limited concert of States which did the law-making, up to the first decades of the 20th century, for the whole of the international community, today participate in the determination or elaboration of the general principles of law, contrary to what is improperly stated by Article 38, paragraph 1 (c), of the Court's Statute. The American delegate Root did well to suggest to the Committee of Jurists in 1920 that the Court should apply, besides treaty law and customary law, “the universally recognized principles of law”. Nonetheless, under the influence of ideas borrowed from The Hague Conference of 1907, where the jurists of European allegiance were dominant, he substituted for this formula that which was to appear in Article 38, paragraph 1 (c), of the Statute, which has thus been inherited, as if were without beneficium inventarii, from concepts as anachronistic as they are unjustified. And over and above this, the particularly docile line taken by international decisions, understood by “civilized nations” those composing the “Concert of Europe”, from whose systems of law alone they avowedly borrowed general principles of law by way of analogy76.
If it is borne in mind particularly that the general principles of law mentioned by Article 38, paragraph 1 (c), of the Statute, are nothing other than the norms common to the different legislations of the world, united by the identity of the legal reason therefor, or the ratio legis, transposed from the internal legal system to the international legal system, one cannot fail to remark an oversight committed by arbitrarily limiting the contribution of municipal law to the elaboration of international law: international law which has become, in short, particularly thanks to the principles proclaimed by the United Nations Charter, a universal law able to draw on the internal sources of law of all the States whose relations it is destined to govern, by reason of which the composition of the Court should represent the principal legal systems of the world.
In view of this contradiction between the fundamental principles of the Charter, and the universality of these principles, on the one hand, and the text of Article 38, paragraph 1 (c), of the Statute of the Court on the other, the latter text cannot be interpreted otherwise than by attributing to it a universal scope involving no discrimination between the members of a single community based upon sovereign equality. The criterion of the distinction between civilized nations and those which are allegedly not so has thus been a political criterion,—power politics,—and anything but an ethical or legal one. The system which it represents has not been without influence on the persistent aloofness of certain new States from the International Court of Justice77.
It is the common underlying principle of national rules in all latitudes which explains and justifies their annexation into public international law. Thus the general principles of law, when they effect a synthesis and digest of the law in foro domestico of the nations—of all the nations—seem closer than other sources of law to international morality. By being incorporated in the law of nations, they strip off any tincture of nationalism, so as to represent, like the principle of equity, the purest moral values. Thus borne along by these values upon the path of development, international law approaches more and more closely to unity.
To conclude this account, it appears that the Court, when quoting, as necessary, paragraph 1 (c) of Article 38, could omit the adjective referred to, and content itself with the words “the general principles of law recognized by … [the] nations”; or could make use of the form of words used by Sir Humphrey Waldock in his address of 30 October 1968, namely: “the general principles of law recognized in national legal systems”. One might also say, quite simply: “the general principles of law”; jurists, and even law students, would not be misled. All this pending the revision of the Court's Statute, or certain of its provisions, being put in hand.
∗ ∗ ∗
34 . The meaning of Article 38, paragraph 1 (c), of the Statute of the Court having thus been restored, it is possible to give an adequate reply to the question raised: Is there a general principle of law recognized by the nations from which would follow a rule to the effect that the continental shelf could be delimited equitably between the Parties?
In their addresses of 30 October 1968, the Netherlands and Denmark stressed that they were not aware of any decision supporting the idea of the application of a general principle recognized by national systems which was in contradiction with positive law.
This objection has been amply answered by showing that the equidistance method does not constitute a rule of positive law. There is, in the circumstances, a lacuna which is to be filled praeter legem and not courra legem, by inferring a general principle of law recognized in national legal systems.
It cannot in fact be denied that an international court, by progressively diverging from the thesis of the formal or logical plenitude of international law, contributes to the remedying of its insufficiencies and the filling-in of its lacunae. It is true that the Court is bound, by virtue of Article 38 of the Statute, “to decide in accordance with international law such disputes as are submitted to it”. But the law to which the text refers does not have the limited meaning, confined to treaties and custom, often given to the term “law”78. The provision of the Article mentioned above, according to which the Court shall apply “the general principles of law recognized by … [the] nations” conflicts with the voluntaristic point of view—which was that of the Judgment of the Permanent Court of International Justice of 7 September 1927 in the Lotus case—and expressly authorizes the Court, which it directs to use the method of analogy, to draw the legal norms from sources other than those founded on the express or tacit consent of States.
In a renewed effort by Romano-Mediterranean legal thinking, breaking the chrysalis of outgrown formalism which encompasses it, international law at the same time tears apart its traditional categories, though it be slowly and bit by bit, in order to open the door to political and social reality in a human society which no longer recognizes any exclusive domains.
35 . In order to pronounce on the propriety of the application of this or that method with a view to an equitable and just delimitation of the continental shelf, there would, failing a legal obligation requiring the use of one or other method, be need to have recourse ultimately to equity, State practice having referred thereto more than once.
For if there is a principle recognized by the municipal law of the community of nations which demands adoption by analogy into international law as a general principle of law, at least as much as so many others which it has already borrowed, it is clearly the principle which nominates equity as the basis of law and as the objective of its implementation.
The general principles of law are indisputably factors which bring morality into the law of nations, inasmuch as they borrow from the law of the nations principles of the moral order, such as those of equality, responsibility and faule, force majeure and act of God, estoppel, non-misuse of right, due diligence, the interpretation of legal documents on the basis of the spirit as well as of the letter of the text, and finally equity in the implementation of legal rules, from which derive the principles of unjust enrichment and enrichissement sans cause79, as well as good faith “which is no more than a reflection of equity and which was born from equity80”.
∗ ∗ ∗
36 . It is not possible to have recourse simply to the concept of what is reasonable, in preference to what is equitable.
The idea of the reasonable saw the light as long ago as in the writings of the Romano-Phoenician jurisconsult Paul81. But the reasonable, if it excludes the equitable, does not completely satisfy the mind. In the way in which it is formulated, in time as in space, it has an element of subjectivity, or even of relativity, which contrasts with the objective nature of the equitable82. Furthermore it may be wondered whether the champions of the reasonable have in mind pure reason, or are referring to practical reason. There is a difference, worthy of notice, between the one doctrine and the other, namely that which separates the understanding from the moral law. Morality, it has been said, hovers around the law; and one may add, with N. Politis and following Ulpian and Cicero, that it should have dominion over it83. In turning away from it, international law condemns itself to sterility in face of a society bubbling over with life. The normative school and its pure theory of law, in rejecting the moral, social and political elements, described as metajuridical, become isolated from international realities and their progressive institutions: ubi societas, ibi jus.
∗ ∗ ∗
37 . Although international justice has generally not specified the municipal sources of the general principles of law which it has derived, when referring to a concept of such wide scope as equity, and one which permits of more than one interpretation, as we have just seen, it is important that the underlying elements thereof be specified: both in time, by going back to legal traditions which have continued up to our own day, and in space, by glancing rapidly over the various national contributions.
Thus it appears legitimate to recall that Greek philosophy, which has never been rejected by succeeding generations right down to our own, already conceived of equity as a corrective to law in general, as a form of justice better than legal justice, because the latter, in view of its general nature, cannot always correspond perfectly to all possible cases84. In the course of time, the concept of justice and equity has become associated with that of law, whether justice be defined, as by Ulpian of Tyre, as the intention to attribute to each what is rightfully his85, or as the art of that which is good and equitable86, or whether the law should draw inspiration from the idea of justice and tend to its realization87.
The just and equitable solution, in the sense given by Ulpian's definition of law: jus est ars boni et aequi, is not to be confused with the faculty possessed by the Court by virtue of Article 38 in fine to decide a case, with the agreement of the parties, ex aequo et bono, in the sense which modern law gives to that expression. It is in this sense that it had already been taken in arbitration cases88. But above all it is appropriate to refer to the Judgment of 28 June 1937 by the Permanent Court of International Justice in the Diversion of Water from the Meuse case between the Netherlands and Belgium, as a precedent for the effective application of equity within the framework of law, affirmed, if there were need for this, by the individual opinion of Judge Manley Hudson89. The Permanent Court thus preserved the spirit which had presided over the preparation of its Statute, and which was expressed by the president of the Advisory Committee of Jurists, Baron Descamps, in the statement which he made at the second meeting, on 17 June 1920, where may be found the following words: “If it is the duty of the judge to apply the law, where it exists, we must not forget that equity is, in international as well as in national law, a necessary complement of positive law …” [Translation by the Secretariat of the Advisory Committee.]
Thus it is necessary to make a distinction between the principle of equity in the wide sense of the word, which manifests itself, in the phrase of Papinian, praeter legem, as a subsidiary source of international law in order to remedy its insufficiencies and fill in its logical lacunae; and the settlement according to independent equity, ex aequo et bono, amounting to an extra-judicial activity, in the expression of the same jurisconsult, contra legem, whose role is, with the agreement of the parties, to remedy the social inadequacies of the law.
∗ ∗ ∗
38 . Incorporated into the great legal systems of the modern world referred to in Article 9 of the Statute of the Court, the principle of equity manifests itself in the law of Western Europe and of Latin America, the direct heirs of the Romano-Mediterranean jus gentium; in the common law, tempered and supplemented by equity described as accessory 90; in Muslim law which is placed on the basis of equity (and more particularly on its equivalent, equality91) by the Koran92 and the teaching of the four great jurisconsults of Islam condensed in the Shari'a93, which comprises, among the sources of law, the istihsan, which authorizes equity-judgments; Chinese law, with its primacy for the moral law and the common sense of equity, in harmony with the Marxist-Leninist philosophy 94; Soviet law, which quite clearly provides a place for considerations of equity95; Hindu law which recommends “the individual to act, and the judge to decide, according to his conscience, according to justice, according to equity, if no other rule of law binds them 96”; finally the law of the other Asian countries, and of the African countries, the customs of which particularly urge the judge not to diverge from equity97 and of which “the conciliating role and the equitable nature98” have often been undervalued by Europeans; customs from which sprang a jus gentium constituted jointly with the rules of the common law in the former British possessions, the lacunae being filled in “according to justice, equity and good conscience99; and in the former French possessions, jointly with the law of Western Europe, steeped in Roman law.
A general principle of law has consequently become established, which the law of nations could not refrain from accepting, and which founds legal relations between nations on equity and justice100.
∗ ∗ ∗
39 . A series of acts translates this concept onto the factual plane, so as to derive therefrom the rule governing the delimitation of the continental shelf. These are the Truman Proclamation, the proclamations of the numerous States of the Arabian-Persian Gulf, those of Saudi Arabia, Iran and Nicaragua. These States, with the exception of the United States, did not form part of the Concert of Nations which used to monopolize the privilege of elaborating law for the whole of the international community. Their role in one of the most important problems of the law of the sea deserves to be taken note of.
According to the terms of the American Proclamation, “in cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles101”. Saudi Arabia, for its part, provided that the boundaries of the areas of the subsoil and seabed over which it proclaimed its sovereignty would be determined in accordance with equitable principles102. The Arab States of Bahrain, Qatar, Abu Dhabi, Kuwait, Dubai, Sharjah, Ras al Khaimah, Umm al Qaiwain, and Ajman refer for the delimitation of their areas in the Arabian-Persian Gulf, to the principle of equity and of justice103. Finally, for the Iranian Empire, “if differences of opinion arise over the limits of the Iranian continental shelf, these differences shall be solved in conformity with the rules of equity104”. [English translation from Reply, Annex, Section A. 16, p. 449.]
No State is to be found, on the other hand, whatever method of delimitation it may itself have used, which opposes this concept based on equity to resolve the problem of the determination of the boundaries of the continental shelf between adjacent or opposite States, and this throughout the whole pre-convention period, up to 1958, the date on which this same concept seems to have been accepted by the Geneva Convention.
It is true that Saudi Arabia and Bahrain, after having referred to the principle of equity in their respective proclamations of 28 May and 5 June 1949, had recourse, in an Agreement of 22 February 1958, to delimitation on the basis of the median line, taking into account, of course, the special geographic circumstances of the region. Nonetheless, the earlier declarations have not ceased to remain in force, and the Agreement of 22 February 1958 is to be considered as an application of the principle of equity upon which depends the solution of the problem of the delimitation of the continental shelf.
Is not the conclusion therefore justified, to round off the enumeration of those international acts which refer to equity, that these acts constitute applications of the general principle of law which authorizes recourse to equity praeter legem for a better implementation of the principles and rules of law? And it would not be premature to say that the application of the principle of equity for the delimitation of the areas of the continental shelf in the present case would thus be in line with this practice
∗ ∗ ∗
40 . In addition, the adoption by the Geneva Convention of the median line and the equidistance line, subject to possible special circumstances, appears to be a similar equitable solution, to which recourse was had in order to preserve the authority of the principle of equity by a sort of compromise, inspired in fact by the conclusions of the study undertaken by the Committee of Experts appointed in 1953 by the International Law Commission, concerning the régime of the territorial sea. The five solutions put in first place by this study were rejected for reasons which were not unconnected with concern for legal precision or for equity. When it began to discuss the equidistance rule, the International Law Commission had remarked that in certain cases it would not permit an equitable solution to be attained. It was thus that it was qualified by the condition concerning special circumstances, and finally extended to delimitation of the continental shelf. The commentary of the Commission also explains that the equidistance rule may be departed from when this is necessitated by an exceptional configuration of the coast105.
∗ ∗ ∗
41 . The teaching of legal writers has not been any less loyal than State practice to this moral concept of law. The notion of justice and equity is to be found in the writings of the publicists106, as also over the names of the numerous jurists in the travaux préparatoires of the Geneva Convention; to which should be added the proceedings of the Ad Hoc Committee set up in 1967 by the United Nations to study the peaceful uses of the seabed and ocean floor107.
International decisions have in turn had occasion to refer to the principle of equity praeter legem108.
Thus it is permissible to conclude that all these manifestations of legal thinking finally merge in the framework of a normative legal concept, the principle of equity.
∗ ∗ ∗
42 . The principle of equity having been accepted, there are two questions to be examined:
(a) Although the equidistance method has been discarded as not binding the Federal Republic of Germany either by agreement, or by the effect of an international custom, can the equidistance line, strictly applied, that is to say, without any modification whatsoever, as desired by the Kingdoms of the Netherlands and Denmark, constitute a solution of the case submitted to the Court as meeting the requirements of equity?
(b) In the case of a negative answer, what is the rule flowing from the principle of equity which would effect a just and equitable delimitation of the areas of the North Sea continental shelf appertaining to the Parties?
∗ ∗ ∗
43 . Can the strict equidistance line be envisaged as an equitable method of delimitation as applied to the present issue?
The Federal Republic is justified in rejecting, as not in conformity with equity, the delimitation of its continental shelf according to the strict equidistance method.
That much has been demonstrated by the Federal Republic by pointing, on the one hand, to the map showing the delimitation of the three areas of the continental shelf in conformity with the equidistance method, based upon the baselines of the territorial seas of the Parties and, on the other hand, to the map showing the delimitation as it would result on the assumption that the equidistance lines took their departure from coasts free of irregularities. The junction of those lines, as occurring towards the middle of the North Sea, illustrates the considerable difference as between the two hypotheses. Expressed in figures, this demonstration, as appears from the text and figures 2 and 21 of the Memorial, would give something like 23,600 square kilometres in the first instance and 36,700 square kilometres in the second109. The Federal Republic adequately demonstrates that the share which would fall to it would thus be reduced to a small fraction of the continental shelf such as would not correspond to the extent of its territory's contact with the North Sea and would be out of all proportion to the respective lengths of coastal frontage of the Parties.
Let it be for an instant imagined, for the sake of argument, that the Federal Republic of Germany had had the possibility, like the Netherlands, of reclaiming areas from the high seas to such a point that the entire concavity of the coast had been filled in. Would not the equidistance lines have produced quite a different result, and one of which the Federal Republic would have had no reason to complain?
Moreover, the Court cannot be averse to having recourse to the travaux préparatoires of an international document if they are such as to cast further light on the questions of international law which are to be resolved. An examination of the circumstances in which the equidistance method of Article 6 of the Convention on the Continental Shelf was adopted shows in fact that the strict equidistance line claimed by Denmark and the Netherlands has been judged to be inequitable in a number of cases. If reference is made to the records of the 1958 Conference, and if one goes as far back as the report and minutes of the International Law Commission and the report of the experts appointed in this connection in 1953, the role of equity in the decision to couple the equidistance line with the mention of special circumstances which was taken by the States assembled in Geneva will become apparent.
It was in fact the consideration of certain factors which led the Committee of Experts, and subsequently the International Law Commission, to arrive at the notion of special circumstances, with a view to mitigating, if need be, the inequitable consequences of the equidistance method, based upon the baselines serving for the delimitation of the territorial sea, which they had decided to adopt. The Committee of Experts, remaining within its terms of reference, made a point, when introducing the notion of special circumstances, of drawing attention to the fact that the equidistance method could fail to produce an equitable solution. And, during the discussions at the Geneva Conference, there were many representatives of the countries taking part who stressed this view110. The Court cannot do otherwise.
∗ ∗ ∗
44 . At the end of this reasoning, it should be recalled that the Federal Republic of Germany, after having asked the Court, in its written pleadings and oral arguments, to declare that the equidistance method is not applicable to the case and, as a subsidiary point, that there exist special circumstances which exclude its application, contended that the Court should therefore refer the Parties back to negotiate an agreement with a view to another delimitation, taking into account the guide-lines which it would supply. And the Federal Republic submitted that the delimitation on which the Parties are to agree is to be determined by the principle of the just and equitable share, by reference to the criteria applicable to the particular geographic situation of the North Sea.
The Kingdoms of the Netherlands and Denmark retorted that, in view of the terms of the Special Agreements, such a decision would be nothing more than a non liquet.
Explaining his line of thought more precisely, the representative of the Federal Republic said, during the second round of speeches, that he was not asking what boundaries should be drawn, but that guide-lines be given concerning the principles to be applied. And the representative of Denmark stressed that the Federal Republic was leaving it entirely to the Court to find out what might be the consequence of the clause of special circumstances possibly being applicable111.
In fact, after having excluded the application of the equidistance line pure and simple and having established the existence of special circumstances, to refer the Parties to the negotiation of an agreement which would attribute to each of them an equitable share of the continental shelf is not to determine the principles and rules applicable to the delimitation of the areas of the continental shelf, which are referred to in the Special Agreements. A decision limited in this way would amount to the determining of the objective aimed at, without any mention of the means of attaining it. It would not have satisfied the letter of the Special Agreements any more than the spirit thereof.
45 . Besides, to do no more than declare that agreement should be reached on an equitable delimitation is not to resolve the question, for the Parties may well be divided as to what is an equitable delimitation and as to the means of determining it. The Court should therefore, after having first excluded the application of the equidistance line as a rule of law, state the rule which is capable of being adopted by application of the principle of equity.
The Geneva Convention provided a rule embodying the equidistance-special circumstances method. It was for the Court, in rejecting this treaty rule in the relationships between the Parties, to replace it by another serving the same purpose, deduced from equity as a general principle of law. What the Convention did, the Court can do.
The Court could in addition refer, as a judicial precedent, to the Judgment which it gave on 18 December 1951 in the Anglo-Norwegian Fisheries case, which laid down the rule of straight baselines for the determination of the outer limit of the territorial sea. It will be seen subsequently that a solution also based on a straight baseline is the one which may constitute the rule to be derived from the principle of equity. By so doing the Court would not have overstepped the limits of its jurisdiction as already fixed by it.
∗ ∗ ∗
46 . Furthermore it may be observed that the Federal Republic's claim for an apportionment—rather than a delimitation—of the areas of the continental shelf between coastal States is not in accordance either with the letter of the Special Agreements, or with the definition of the continental shelf.
This idea is to be found, it is true in a treaty precedent, the agreement between France and Switzerland of 25 February 1953 on the delimitation of the Lake of Geneva. According to the terms of this agreement, the median line is replaced by a polygonal line “with a view to effecting a compensation as between the areas”. But this is a unique case where free play was given to voluntary agreement. It does not fit in with the definition of the continental shelf, which rests, as has been stated112 on the principle affirmed by the International Court of Justice in its Judgment of 18 December 1951 already referred to, to the effect that “it is the land which confers upon the coastal State a right to the waters”. What is inherent in this definition is the right to the prolongation of the national territory under the waters. The idea of equity and justice is thus realized by taking into consideration, for each Party, the extent of the link between the land and the waters, the coastal State's right and the equitable limit of its claim being a function of the land factor.
∗ ∗ ∗
47 . In the words of the Judgment, paragraph 85 (a): “the Parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when one of them insists upon its own position without contemplating any modification of it …”.
The Judgment justifies such a obligation in paragraph 86, by saying that “not only … the obligation to negotiate which the Parties assumed by Article 1, paragraph 2, of the Special Agreements arises out of the Truman Proclamation, which, for the reasons given in paragraph 47, must be considered as having propounded the rules of law in this field, but also … this obligation merely constitutes a special application of a principle which underlies all international relations, and which is moreover recognized in Article 33 of the Charter of the United Nations”.
And the Judgment goes on, in paragraph 87: “so far therefore the negotiations have not satisfied the conditions indicated in paragraph 85 (a)”.
I dispute that there is such an obligation in the present case. It cannot be inferred from the Truman Proclamation, nor yet from Article 33 of the Charter, which concerns disputes the continuance of which is likely to endanger the maintenance of international peace and security, and is the less imperative inasmuch as it empowers the Security Council “when it deems necessary, [to] call upon the parties to settle their dispute by such means”.
In any event, a submission that there was an obligation to negotiate, and that the negotiations carried out “were not meaningful”, would amount to a prejudicial objection to the hearing of the case. The Judgment should therefore have followed its reasoning right through, i.e., the Court, after having drawn the attention of the Parties to the question in its legal and practical aspects, should give judgment on the objection before turning to the merits.
However, I understand the Judgment as considering that the negotiations had simply been suspended in face of the difficulties which had been encountered, in order to be re-opened and completed in the light of the indications to be given by the Court.
∗ ∗ ∗
48 . The strict equidistance method having been discarded because it does not constitute an equitable solution appropriate to all cases, and particularly to that submitted to the Court, one must enquire what rule should be deduced from the principle of equity with a view to the delimitation in question.
49 . One preliminary clarification is perhaps not unnecessary: the words principle and rule are no more synonymous in legal than in philosophical language. The Court has however not always made this distinction. Thus the wording of the Special Agreements, where these terms are used cumulatively, cannot be criticized as being tautological. It is from the principle, defined as being the effective cause, that the rules flow. It is therefore necessary, after having gone back to the principle, namely equity, to state what rules applicable to the matter can be deduced from it.
50 . Several methods were debated in the course of the proceedings.
The first, adopting as basis the notion of sectors converging to the approximate centre of the North Sea, presupposes that the three areas of the continental shelf of the south-west coast ought necessarily to reach the median line between the continent and the British Isles, which however is anything but proved. In fact, the question being that of determining the lateral boundaries between the areas of continental shelf of each of the Parties, the Court should confine itself to the solution of this question, without concerning itself with the question whether the demarcation lines thus ascertained will reach the median line, or will meet before reaching it.
51 . The second method, which has been adopted by the majority of the Court in order to be proposed to the Parties simply as a factor for them to assess, is that based on the relationship between the length of the coast and the extent of the areas of continental shelf.
Although this does not refer to any sort of practice113, it starts from the idea of natural prolongation of the land territory, and implies the realignment, in the form of a single straight baseline, of the concave coast of the Federal Republic of Germany.
It could nonetheless be criticized, in its practical application, for failing to avoid overlappings of one sector of the continental shelf over another at some distance from the coast. It would thus appear to entail acceptance of parts of the continental shelf constituting the prolongation of more than one territory. This hypothesis is vitiated by an internal contradiction, for an area of land can only be the prolongation of a single territory. Furthermore, for this common sector, the Court recommends division into equal shares. But is this not a return to the solution, which has already been rejected, of apportionment into just and equitable shares, according to the terms used by the Federal Republic of Germany?
Lastly, this method determines surface areas, but does not assist in drawing lateral boundaries, which are exactly the problem which is to be resolved: is their meeting-point to be shifted somewhat towards Denmark or towards the Netherlands?
52 . A third method, that of equidistance-special circumstances, is the one which seems to me to be the rule to be applied. This method, which was rejected as not being a rule of treaty law or customary law, may be re-adopted by virtue of a general principle of law, namely equity.
The explanations which follow will show that recourse can be had to the equidistance method if the application thereof is subordinated, in appropriate cases, with a view to the preservation of equity, to the effect of special circumstances. The question which will arise will therefore be whether there exist such circumstances in this case. In that event the equidistance-special circumstances rule deduced from the principle of equity praeter legem could be proposed to the Parties.
53 . Special circumstances have not been defined by a text of positive law; nor could they be listed exhaustively, in view of the extreme variety of legal and material factors which may be of account.
Nonetheless, if reference is made once again to the travaux préparatoires which have been mentioned, there is nothing to show that the notion of special circumstances was limited in the way in which the representatives of Denmark and the Netherlands would have it. On the contrary, the International Law Commission, upon the report of the experts which it had appointed, stated in its commentary on Article 72 of the draft which it presented to the conference and which there became Article 6 that there might be “… departures (sc., from the equidistance rule) necessitated by any exceptional configuration of the coast, as well as the presence of islands or of navigable channels …” and the International Law Commission went on: “… This case may arise fairly often …”
In short, a special circumstance affecting the equidistance method may be the effect of a particular legal situation: a treaty, or historic waters. It may also be the consequence of geographical considerations. On the basis of the map and measurements already mentioned114, the configuration of the coast of the Federal Republic of Germany constitutes such a circumstance, which should be taken into account to avoid the inequitable application of the equidistance line pure and simple.
No mention was made, on the other hand, of economic objectives, such as the unity of deposits, with a view to the examination thereof by the Court. In any case, any consideration of submarine resources, referred to in the course of the proceedings, is irrelevant. To adopt as basis in order to draw up boundaries, among other factors, the riches secreted by the bed of the sea, would amount to nothing less than an apportionment of the continental shelf, whereas all that is in question is a delimitation of the areas originally appertaining to the coastal States, as has already been stated115. In addition, since potential riches will for a long time hence go on being discovered unceasingly, such delimitation, faced with a deposit overlapping two areas, would continually be subject to rectification. Consequently, if the preservation of the unity of deposit is a matter of concern to the Parties, they must provide for this by a voluntary agreement (by transfer or joint exploitation), and this does not fall within the category of a factor or rule of delimitation.
In addition, the following passage from paragraph 69 of the Judgment should be stressed: “Such a rule (sc., the equidistance-special circumstances rule) was of course embodied in Article 6 of the Convention, but as a purely conventional rule.” But if the equidistance-special circumstances method can, on the Court's own admission, amount to a rule of conventional law, it can also constitute such a rule, as a matter of logic, by virtue of the principle of equity. The Court, which is called upon to state principles and rules, after having adopted the principle of equity, should, in my opinion, therefore have deduced therefrom the rule of equidistance-special circumstances.
54 . The equidistance-special circumstances rule flowing from a general principle of law, namely equity, having been accepted, and it having been established that in the present case there exists a special circumstance, what would the effect of this circumstance be on the equidistance line?
The idea which would seem to constitute the point of departure is that which follows from the nature of the shelf: since this is geologically the prolongation of the territory, starting from the coastal front, as has already been explained in the considerations concerning the concept of the continental shelf116, it is this front which forms the basis of the shelf extending under the high seas.
An attempt has been made to justify the contiguity criterion and thus the equidistance line as an imperative rule of international law by pointing out that the geographical realities of the actual coastline are the basis for the determination of the extent in space of the sovereign rights of the coastal State117. But what are these geographical realities, if they are not the actual coastline, or the coastal front, extending under the waters of the high seas, without the front or coastline being affected by the depressions in the surface which merely modify the line along which they break surface.
The front must thus not be understood as meaning the coast with its more or less pronounced bends on the waterline, these irregularities being the result of a subsidence or sloping of the land below the level of the sea. They are not such as should modify the line which the front would have followed if it had not been affected by such geological accidents. Consequently, the corrugations of the bases of the shelf must not influence the latter's natural configuration by modifying any co-ordinates thereon established.
55 . What would the front look like as thus understood?
It is by having recourse, by way of analogy, to the method of delimiting the territorial sea based on the straight baselines sanctioned by the Court's Judgment of 18 December 1951 in the Anglo-Norwegian Fisheries case, that the solution might be found. Such resort to analogy is justified on account of the identity of ratio legis, or again on account of the similarity of the essential elements in the two sets of circumstances, namely the jagged and indented nature of the two coasts, and the economic factor which is present in both cases118.
The solution envisaged would be no more contrary to the principles or rules of international law than the Norwegian Decree of 12 July 1935 delimiting the territorial sea on the basis of straight lines following the general direction of the coast and linking fixed points located on terra firma or on adjacent islands. However, the configuration of the German coast possessing, as it does, the form of a bay, it is the drawing, as in the case of open bays, of a single straight baseline along the coast that would be called for; its line of opening would not necessarily be restricted to a pre-ordained length, as the above-mentioned Judgment of the Court stipulated for bays in general. It will in this connection be recalled that there has been a proposal to apply this rule to indentations119 and troughs120 forming interruptions in the bed of the continental shelf.
This solution is all the more acceptable because it does not involve either internal waters or the territorial sea; it does not affect the configuration of the latter, as the waters seaward thereof but landward of the straight baseline will not cease to form part of the continental shelf and will remain subject to the régime governing the shelf.
As applied to the German coast, the straight baseline would extend from one of its extremities to the other and would thus completely obliterate its concavity.
The Netherlands and Danish coasts would be maintained as they are, in view of the fact that, from the points of their respective intersections with the German coast, they follow a straight course free of disproportionate projections.
56 . The bases for the delimitation of the continental shelf as between the Parties having been determined, how should the lateral boundaries be fixed?
It was said above that the Geneva Convention on the Continental Shelf did not depart from the notion of equity in adopting the equidistance line accompanied by the condition referring to special circumstances.
It is therefore as a solution based on equity that recourse may be had to the equidistance-special circumstances rule for the purpose of determining the lateral boundaries of the continental shelf as between the Parties to the dispute.
It is all the more justifiable to recommend the application of the equidistance rule, starting from straight baselines, in that Denmark and the Netherlands are parties to the 1958 Geneva Convention on the Continental Shelf and because the Federal Republic of Germany, without asking for the application of this method, has not rejected it to the extent that it ensures an equitable solution121.
In a normal case, that is to say one not involving special circumstances, the equidistance lines would have been made up of the points nearest to the baselines from which the breadth of the territorial sea is measured. In the present case, it is by taking as the starting-point the intersection of the straight baselines marking the coastal fronts of the Federal Republic and Denmark, with due regard for the partial delimitation agreed upon, that the equidistance line between the respective continental shelf areas of those two States could be fixed; and it is by taking as the starting point the intersection of the said baseline of the Federal Republic and that of the Netherlands, that the equidistance line between the two latter States, again with due regard to the agreed partial delimitation, could be fixed. This would be done in two separate operations. The area appertaining to the Federal Republic would be contained between the two equidistance lines and would extend out to sea as far as then point of intersection.
Whilst bearing in mind the partial delimitations, reference may be made to the attached map upon which the coastal front is shown in the form of a straight baseline, the Danish and Netherlands coasts remaining as they are, and which the cartographer has completed by adding (thin full lines) the equidistance lines starting from the points of intersection B and C and converging to their junction at the point A before reaching the median line Great Britain-Continent.
To sum up, I am in agreement with the majority of the Court in declaring that the equidistance method provided for in Article 6, paragraph 2, of the 1958 Convention, is not opposable as a rule of treaty-law to the Federal Republic of Germany, and that this rule has also not up to the present time become a rule of customary law.
On the other hand, I consider that recourse may be had to the equidistance method, qualified by special circumstances, as a legal rule applicable to the case and derived from a general principle of law, namely equity praeter legem.
Since the Court has, for the reasons which it has set forth, not considered that it should go as far as I have done, I have felt that I should, with all the consideration to which it is entitled, and while supporting the Judgment, append thereto the present separate opinion, covering the points on which my reasoning has been different, or on which I have come to a different conclusion.
(Signed) Fouad Ammoun.
Dissenting Opinion of Vice-President Koretsky
1 To my great regret, I am unable to concur in the Court's Judgment, for the reasons which I state below.
∗ ∗ ∗
2 The Judgment denies the possibility of applying Article 6, paragraph 2, of the Geneva Convention on the Continental Shelf to these cases on a purely conventional basis. It is a fact that the Federal Republic of Germany has not ratified the Convention. Therefore, despite the Federal Government's having recognized the doctrine of the continental shelf as embodied in Articles 1 to 3 of the Convention, despite its reliance thereon in proclaiming its sovereign rights over the continental shelf, despite its having announced a bill for ratification, and despite its conclusion with the Netherlands and Denmark of respective treaties that fix partial continental shelf boundaries following “to some extent … the equidistance line” or adopting a “seaward terminus … equidistant from” the coasts concerned (Memorials, para. 60) and are thus more than consistent with paragraph 2 of Article 6, the Federal Republic of Germany has disputed the possibility of regarding that provision as binding upon it. It may be noted that, during the negotiations which took place with the Netherlands and Denmark, the Federal Republic contested this possibility only after a certain delay, and that it was not consistent in doing so, since it even assumed as an alternative possibility in its final Submissions that the rule contained in the second sentence of paragraph 2 of Article 6 could be applicable between the Parties, adding that “special circumstances within the meaning of that rule would exclude the application of the equidistance method in the present case”. In this Submission (No. 2) the Federal Republic linked the principle of equidistance (though calling it a “method”) with the “special circumstances” rule, and it may be recalled that, during the oral proceedings, Counsel for Denmark and the Netherlands had combined them in the form of the “equidistance/special-circumstances” rule.
3 The Judgment acknowledges that “such a rule was embodied in Article 6 of the Convention, but as a purely conventional rule” (paragraph 69). However, as the Federal Republic has not ratified the Convention, the Judgment considers that “qua conventional rule … it is not opposable to the Federal Republic of Germany” (ibid.). It may be regretted that the Judgment did not deal fully with the question as to whether “special circumstances” could in fact be established with regard to the maritime boundaries between the Federal Republic and the Netherlands, and between the Federal Republic and Denmark, respectively.
4 In its first finding, the Judgment uses the following words in respect of each case: “(A) the use of the equidistance method of delimitation not being obligatory as between the Parties.” It thus disjoins the equidistance principle from the other two components of the triad: agreement-special circumstances-equidistance. These three interconnected elements are embodied in the Convention, as also in the Convention on the Territorial Sea and the Contiguous Zone, and have entered into the province of the general principles of international law, being consolidated as a combined principle of customary international law. Each of these three elements plays its part in the determination of a boundary line between two maritime areas, such as areas of the continental shelf in particular.
5 Agreement is deemed to constitute the principal and most appropriate method of determining the boundaries of the areas of any continental shelf. This is confirmed by the practice of States. The Convention itself gives it pride of place, and this was quite natural, as the issue was one concerning the geographical limits of the sovereign rights of States. It was unnecessary to prescribe at that stage any directives as to the considerations on the basis of which parties ought to arrive at agreement. Provided there is no encroachment on the sphere of the sovereign rights of any other State, parties are free to agree on whatever terms they wish for the delimitation of boundaries, bearing in mind, generally, both legal and non-legal considerations: relevant political and economic factors, related considerations of security and topography, the relations (“good-neighbourly” or otherwise) between the States concerned, and whatever imponderables may escape hard and fast classification. The assessment of such considerations is a political and subjective matter, and it is not for the Court as a judicial organ to concern itself with it unless the parties submit to it a dispute on a question or questions of a really legal character.
6 The next element of the triad—the “special circumstances” situation—is, however, an objective matter, concerning as it does, for instance, the unusual geographical configuration of the coastline to either side of a frontier, and a disagreement as to whether or not a certain situation could be regarded as a case of “special circumstances” justifying an appropriate boundary line would be a justiciable dispute.
7 And it is only after the failure of these two elements of the triad, in the event of a deadlock, that the third element—the equidistance principle—makes its appearance as the last resort, offering a way out of the impasse in a geometrical construction which introduces a mathematical definitude and a certainty of maritime boundaries. The Judgment itself agrees that “it would probably be true to say that no other method of delimitation has the same combination of practical convenience and certainty of application” (paragraph 23).
∗ ∗ ∗
8 If it be held that the principles and rules inseparably embodied in paragraph 2 of Article 6 of the Convention are no more than treaty provisions and are not, as such, opposable to the Federal Republic, then one may ask whether these principles and rules are or have become an institution of international law, either as general principles developed in relation to the continental shelf, or as an embodiment of international custom. There are sufficient grounds for considering them to qualify in both these ways, but I am inclined to consider them rather as principles of general international law, seeing that established doctrine lays much stress on the time factor as a criterion of whether a given principle belongs to customary international law: by and large, customary international law turns its face to the past while general international law keeps abreast of the times, conveying a sense of today and the near future by absorbing the basic progressive principles of international law as soon as they are developed.
9 Contemporary international law has developed not only quantitatively but more especially qualitatively.
10 There has been far-reaching development of the work of the codification of international law which has been organized in the United Nations on a hitherto unknown scale. In the first stage, drafts of international multilateral conventions were prepared by the International Law Commission, composed of jurists “of recognized competence in international law”, which in response to its request, received numerous comments and observations from almost all governments. There followed, upon the themes of those drafts, an increased amount of special literature (books or articles) and the work of universities and research institutes, including the Institute of International Law, and various learned societies (e.g., the International Law Association). Then came the discussions in the General Assembly of the reports and drafts prepared by the Intel national Law Commission. This preparatory work led finally to the convocation of special intergovernmental conferences in which the great majority of States participated. The scale and thoroughness of this process for the forming and formulation of principles and rules of international law should lead to the consideration in a new light of what is accepted as the result of such work of codification.
11 Where it used to be considered indispensable, for determining certain general principles of international law, to gather the relevant data brick by brick, as it were, from governmental acts, declarations, diplomatic notes, agreements and treaties, mostly on concrete matters, such principles are now beginning to be crystallized by international conferences which codify certain not inconsiderable areas of international law. Elihu Root, the well-known jurist and statesman, one of the framers of the Statute of the Permanent Court of International Justice, wrote (in his Prefatory Note to the Texts of the Peace Conferences at The Hague, 1899 and 1907, Boston 1908):
“The question about each international conference is not merely what it has accomplished, but also what it has begun, and what it has moved forward. Not only the conventions signed and ratified, but the steps taken towards conclusions which may not reach practical and effective form for many years to come, are of value.”
Elihu Root wrote this in connection with the Peace Conferences of 1899 and 1907. Certain principles which were embodied in The Hague Conventions at that time have been acknowledged as principles of general international law, though States have been slow to put them into practice.
12 The 1958 Conference on the Law of the Sea, with the Conventions adopted there, among them the Convention on the Continental Shelf, introduced substantial definitude in this field of international law; and the principles and rules of the international law of the sea formulated therein have become the general principles of that law with almost unprecedented rapidity.
13 The rapid technical progress in the exploration and exploitation of submarine oil and gas resources has entailed the necessity for corresponding legal principles and rules. The practice of States has predetermined the course of development of the doctrine as also of the principles and rules of international law relating to the continental shelf.
14 The Anglo-Venezuelan Treaty Relating to the Submarine Areas of the Gulf of Paria, 1942 (U.N. Legislative Series: Laws and Regulations on the Regime of the High Seas, Vol. I (1951), p. 44) was followed in a comparatively short time by numerous unilateral governmental acts, such as the Presidential Proclamation concerning the policy of the United States with respect to the natural resources of the subsoil and seabed of the continental shelf (1945), the Presidential Declaration (of Mexico) of the same year with respect to the continental shelf, and decrees, laws and declarations by almost all the other Latin American States (in the period 1946–1951), and by the Arab States, Pakistan and others (U.N. Legislative Series, Laws and Regulations on the Régime of the High Seas, ST/LEG/SER.B/1).
15 As a result of the inclusion in the work of the United Nations of the task of determining the principles and rules of international law relating to the continental shelf, the general principles of the law of the continental shelf had already taken shape before the Conference, though not in a finally “polished” form, on the basis of governmental acts, agreements and scientific works. The Geneva Conference of 1958, in the Convention on the Continental Shelf which was adopted, gave definite formulation to the principles and rules relating thereto. These were consolidated in subsequent practice in a growing number of governmental acts, international declarations and agreements (as mentioned in the written and oral proceedings), which in most cases referred to the Convention or, when they did not do so, made use of its wording. All this has led to the development, in great measure organized and not spontaneous, of the general principles of international law relating to the continental shelf, in not only their generality but also their concreteness. Thus, by a kind of coalescence of the principles, a genuine communis opinio juris on the matter has come into being. States, even some not having acceded to the Convention, have followed its principles because to do so was for them a recognition of necessity, and have thereby given practical expression to the other part of the well-known formula opinio juris sive necessitatis.
16 And this conclusion might be reached also by deducing these principles as “direct and inevitable consequences” of the premises and considering their binding force to be that of historically developed logical principles of law (see Lotus, Dissenting Opinion by Judge Loder, P.C.I.J., Series A, No. 10, p. 35).
17 This finds confirmation in the doctrine which regards the continental shelf as being an actual continuation of the submarine areas of the territorial sea, which, in its turn, is a continuation of the mainland of the coastal State. The United States Presidential Proclamation of 1945, asserting the right of the United States to exercise jurisdiction over the natural resources of the subsoil and seabed of the continental shelf, regarded that shelf “as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it”. In 1946 an Argentine decree stated: “The continental shelf is closely united to the mainland both in a morphological and a geological sense.” The Peruvian Presidential Decree of 1947 stated that “the continental submerged shelf forms one entire morphological and geological unit with the continent”, and the decrees of almost all other Latin American countries employ virtually identical expressions. (U.N. Legislative Series, Laws and Regulations on the Régime of the High Seas, ST/LEG/SER.B/1). The Judgment also recognizes that the submarine areas of the continental shelf” may be deemed to be actually part of the territory over which the coastal State already has dominion—in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea” (paragraph 43).
18 But what conclusion can be drawn from this premise—in relation to principles and rules of international law which govern or should govern the delimitation of a given part of the continental shelf? Bearing in mind that the continental shelf constitutes, as is stated in the operative part of the Judgment, under (C) (1), “a natural prolongation of” each Party's “land territory into and under the sea” (including, may I add, the territorial sea appertaining to the same coastal State), the question might be asked as to whether there exist, for the delimitation of the continental shelf as between “adjacent” States, any special principles and rules different from those which have been established (in State practice, treaties, agreements, etc.) in relation to the delimitation of such maritime areas as the territorial sea. Concerning any possible connection between, the conceivable principles—whether similar or different—governing the delimitation, respectively, of the territorial sea and of the continental shelf, it may be noted, in the first place, that the sovereign rights of a coastal State over its territorial sea and over the continental shelf are different in scope.
19 In relation to the territorial sea three “strata” (to use that term) may be distinguished: (a) the maritime area, (b) the seabed and its subsoil and (c) the air-space. The sovereignty of a coastal State extends to all three of these strata with regard to the territorial sea adjacent to its coast.
20 In relation to a contiguous zone the coastal State has certain rights in connection with a delimited maritime area.
21 In relation to the continental shelf, that is to say, to the seabed and subsoil of submarine areas adjacent to a given coast, but outside the area of the territorial sea (ergo, submarine areas of the contiguous zone included), the coastal State has “sovereign rights for the purpose of exploring it and exploiting its natural resources”, not affecting “the legal status of the superjacent waters as high seas, or that of the air-space above these waters”.
22 Thus, there has occurred some kind of bifurcation of the legal régimes of the territorial sea and of the continental shelf. The maritime and air “strata” over the continental shelf are outside the sphere of the rights of a given coastal State. But the continental shelf itself is within the sphere of the special territorial (though limited) rights of the coastal State to which it is appurtenant, on the ground of the close physical relationship of the continental shelf with the mainland (via the submarine area of its territorial sea), as being its natural prolongation, as was recognized by the Court and has become the generally recognized concept of international law. Although Bracton might have considered the sea coast “quasi maris accessoria”, which was historically understandable, not only the territorial sea but also the continental shelf may now be considered as “accessories” of or, in the words of the Judgment in the Fisheries case, as “appurtenant to the land territory” (I.C.J. Reports 1951, p. 128; in French, more explicitly, “comme accessoire du territoire terrestre”)122. To apply the old adage accessorium sequitur suum principale, this appurtenance may be considered as entailing common principles for the delimitation of maritime spaces, that is to say for both the territorial sea and the continental shelf.
23 This explains why, in the International Law Commission, almost from the beginning, it was frequently said that the question of the delimitation of the continental shelf is, in the words of M. Cordova, a former Judge of the International Court, “closely bound up with the delimitation of territorial waters” (I.L.C. Yearbook, 1951, Vol. I, p. 289).
24 The starting-point for determining the boundaries of a continental shelf is formed by the definitive boundaries of the territorial sea of a given State (Article 1 of the Convention on the Continental Shelf defines the continental shelf, as has been recalled, as adjacent to the coast but outside the area of the territorial sea), and it was for that reason that Professor François, the rapporteur of the International Law Commission, was able to state as follows in 1951:
“It seems reasonable to accept, as demarcation line between the continental shelves of two neighbouring States, the prolongation of the line of demarcation of the territorial waters” (A/CN.4/42, p. 717).
25 The Committee of Experts, which was composed not of mere draftsmen but of very experienced specialists acquainted with the practice of States in the matter of the determination and delimitation of maritime boundaries, who were the representatives of cartography as a science within the field of political geography which is intimately connected with “public law”, stated in their report, in answer to, inter alia, the question of how the lateral boundary line should be drawn through the territorial sea of two adjacent States:
“The committee considered it important to find a formula for drawing the international boundaries in the territorial waters of States, which could also be used for the delimitation of the respective continental shelves of two States bordering the same continental shelf” (A/CN.4/61, Add. 1, Annex, p. 7).
It will be observed that the two Geneva Conventions of 1958—that on the Territorial Sea and the Contiguous Zone and that on the Continental Shelf—formulated very similar and, in substance, even identical principles and rules for the delimitation of both the territorial sea and the continental shelf123. It is particularly noteworthy in this respect that Article 6 of the Soviet/Finnish Agreement concerning boundaries in the Gulf of Finland actually provides for the boundary of the territorial sea to constitute that of the continental shelf (U.N. Treaty Series, Vol. 566, pp. 38–42).
26 If both the territorial sea and the continental shelf are regarded as a natural prolongation of a given mainland and if, in this sense, it is considered that they have a territorial character, it must be still borne in mind that their delimitation should be effected not in accordance with the principles and rules applicable to the delimitation of land territories themselves, but in accordance with those applicable to the delimitation of maritime areas covering such a prolongation of a territory.
27 Until recently, attention was mainly directed to the delimitation of the territorial sea and contiguous zone and, to some extent, of the continental shelf, in a seaward direction, since the complexities of inter-State relations and contradictions gave rise to problems concerning the correlation of the freedom of the high seas with the sovereignty of coastal States over their territorial sea and, associated therewith, problems of navigation, innocent passage, fisheries, etc. Questions of policy and, in the words of Article 24 of the Convention on the Territorial Sea and the Contiguous Zone, questions concerning the prevention of infringements of a given State's customs, fiscal, immigration or sanitary regulations, committed within its territory, or within its territorial sea, gave rise to certain problems concerning lateral boundaries. When the exploitation of the natural resources of the subsoil of the sea became a real possibility, and the problems connected with the delimitation of the continental shelf area not only in a seaward direction but more especially between neighbouring States whose continental shelf is adjacent to their coasts, became more acute, the character of the “territoriality” of the sovereign rights of a coastal State called for more certainty and more definiteness and almost, indeed, for mathematical precision.
28 Inevitably, the definition of the boundary of a given part of the continental shelf must be effected not on the shelf itself but on the waters which cover it. This entails the application to the delimitation of the continental shelf of principles and rules appropriate to the delimitation of sea areas and accordingly of the territorial sea, the boundaries of which can be described as mathematically, geometrically constructed in a manner that is as simple as is permitted by the configuration of the coast or by the baselines.
29 Article 6, paragraph 2, of the Convention envisages cases where the same continental shelf is adjacent to the territories of two adjacent States. It follows that when it is a question of delimiting the boundary of the continental shelves of two coastal States in conformity with existing principles and rules, and even if the presence of special circumstances is observed and confirmed, those special circumstances can only justify a deviation from the normal line if they are located comparatively near to the landward starting-point of the boundary line of the continental shelf adjacent to the territories of the two (and only two) adjacent States. Moreover, the boundary line will generally be constructed with reference to the baselines of the territorial sea, in the drawing of which due allowance will already have been made for certain irregularities of configuration. At all events, the factors concerned should be considered only in relation to the determination of a single boundary line between two adjacent States, while the influence of any special circumstances on both must be taken into account. All “macrogeographical” considerations are entirely irrelevant, except in the improbable framework of a desire to redraw the political map of one or more regions of the world.
30 If “special circumstances” were recognized to exist in relation to a given part of the continental shelf, in what way would they affect the application in these cases of the general principles governing the delimitation of the boundary line? The Federal Republic of Germany maintains that, within the meaning of the “special circumstances” rule, that rule would exclude the application of the equidistance method. But the absence of any mention of another principle to be regarded as alternative to the one specified might be interpreted to mean that the equidistance principle would not be eliminated, excluded or replaced, but rather modified or inflected. This is to say that there may be a certain deviation from the strict mathematical course of an equidistance line or that, still taking the equidistance principle as the basis of the delimitation, the direction of the boundary line, after initially taking the equidistant course, may be changed after an appropriate point.
31 Thus the presence of special circumstances might introduce a corrective or might only amend the principle which serves as the starting-point. It is conceivable that in the middle, or towards the end—but not at the beginning—of a boundary line, a change of direction, corrective of the line, may be effected under the influence of special circumstances. This could be the case if there were some geographical hindrance to continuing the line in the same direction, so that a deviation in some section of the line arose in conformity with the very nature of the special circumstance involved. The possibility is not excluded of exercising a certain flexibility in the actual drawing of the line but without, of course, substituting an alternative basis of delimitation.
∗ ∗ ∗
32 The Judgment attaches special significance to the fact that, under Article 12 of the Convention, any State may make a reservation in respect of Article 6, paragraph 2, from which it concludes that Article 6, paragraph 2, comes within the category of purely conventional rules and that therefore the principles and rules embodied in it are excluded from the province of the general principles and rules of international law and from that of customary international law. The Judgment states this while reasoning that the use of the equidistance method for the purpose of delimiting the continental shelf which appertains to the Parties is not obligatory as between them.
33 It must be noted once more that Article 6, paragraph 2, embodies not only the principle of equidistance, but also two other principles concerning respectively the determination of the boundary of the continental shelf by agreement (and it would be impossible to imagine that anyone could oppose this principle or wish to make a reservation with regard to it) and the “special circumstances” clause as a corrective to the equidistance principle. These three elements of Article 6, paragraph 2, are, as I have already noted, intimately interconnected in constituting a normal procedure for the determination of a boundary line of the continental shelf as between adjacent States. It is therefore impossible to apply to this provision the logical method of separability, just as it is impossible to separate the principles and rules of Article 6, paragraph 2, from the general doctrine of the continental shelf as enshrined in the first three articles of the Convention.
34 From a consideration of the reservations—comparatively few in number—which were made by governments to Article 6, paragraph 2, it will be seen that not one of the governments opposed in any general way the principles and rules embodied in this Article. They stated only (as in the instances of Venezuela and France) that, in certain specific areas off their coasts, there existed “special circumstances” which excluded the application of the principle of equidistance.
35 Thus, for instance, the Government of the French Republic stated that:
“In the absence of a specific agreement, the Government of the French Republic will not accept that any boundary of the continental shelf determined by application of the principle of equidistance shall be invoked against it: … if it lies in areas where, in the Government's opinion, there are ‘special circumstances’ within the meaning of Article 6, paragraphs 1 and 2, that is to say: the Bay of Biscay, the Bay of Granville, and the sea areas of the Straits of Dover and of the North Sea off the French Coast” [translation by the Registry] (Status of Multilateral conventions in respect of which the Secretary-General performs depositary functions; ST/LEG/SER.D/1).
36 And the Government of Yugoslavia made a reservation in respect of Article 6 of the Convention which can easily be understood in view of its positive attitude to the principle of equidistance124. In its instrument of ratification, the Government of Yugoslavia stated: “In delimiting its continental shelf, Yugoslavia recognizes no ‘special circumstances’ which should influence that delimitation” (idem).
∗ ∗ ∗
37 What are, in effect, the principles and what has been the practice, with regard to the delimitation of the territorial sea?
38 Sovereign rights over the territorial sea, like all territorial rights, have an inherent spatial reference, and every such right is subject to certain limits which are determined by historically developed principles. The territorial sea as a maritime space is inseparably connected with the land territory of which it is an appurtenance.
39 As recalled above, the question of the boundaries of the territorial sea arises mainly in connection with the measurement of its breadth, but the lateral boundaries (as they have not given rise to the kind of serious dispute so common in regard to the breadth, so that not all the documentation on them has been published) are usually, as far as we know, determined in treaties, conventions, or in administrative agreements concerning, particularly, customs jurisdiction and fisheries.
40 It has been estimated that there are some 160 places where international boundaries have been extended from the coast, but the documentation in this connection is scant. It is clear however, that there has been a very general tendency in defining these boundaries to employ, for the sake of clarity and certitude, virtually mathematical concepts expressed in the use of geographical co-ordinates, parallels of latitude, geometrical constructions, charts showing points connected by straight lines, perpendiculars, produced territorial boundaries, and even in such straight-forward visual means as the alignment of topographical features. There has also been a tendency to apply the principle of equidistance125, which as a result had historically evolved. The principles and methods for delimiting the territorial sea have become—to use the expression of a well-known specialist on boundary questions, S. Whittemore Boggs—implicit in the concept of the territorial sea. These principles and methods are summed up in Article 12 of the Convention on the Territorial Sea and the Contiguous Zone, which premises the baseline from which the breadth of the territorial sea of each of the two States concerned is measured, the different questions connected with the method of determining baselines having been dealt with in Articles 3 to 9 of the same Convention.
∗ ∗ ∗
41 The Judgment (paragraphs 88 ff.) refers to the “rule of equity” as a ground for the Court's decision, and apparently understands the notion of equity in a far wider sense than the restricted connotation given to it in the Common Law countries. It states: “Whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable” (paragraph 88). Any judge might be pleased with this statement, but the point it makes appears to me purely semantic. The International Court is a court of law. Its function is to decide disputes submitted to it “in accordance with international law” (Statute, Article 38, paragraph 1), and on no other grounds. It is true that the Court may be given “power … to decide a case ex aequo et bono”, but only “if the parties agree thereto” (ibid., paragraph 2). It might be held that in such circumstances the Court would be discharging the functions of an arbitral tribunal, but the measure of discretion which the ex aequo et bono principle confers upon a court of law as such is at all events something which the International Court of Justice has never enjoyed. This principle is accordingly nowhere to be found in the decisions either of the present Court or of its predecessor, because there never has been any case in which the parties agreed that the Court might decide ex aequo et bono. This negative fact seems to indicate that States are somewhat averse to resorting to this procedure126 and it was not on this basis that the Court was asked to give a decision in the present case. The Court itself states in its Judgment that “There is … no question in this case of any decision ex aequo et bono” (paragraph 88); nevertheless it may be thought to have tended somewhat in that direction.
42 The notion of equity was long ago defined in law dictionaries, which regard it as a principle of fairness bearing a non-juridical, ethical character. Black, for example, cites: “Its obligation is ethical rather than jural and its discussion belongs to the sphere of morals. It is grounded in the precepts of the conscience, not in any sanction of positive law” (4th edition, 1951, p. 634)127. The science of ethics has been and still is the subject of somewhat heated debates and of ideological differences concerning the content and meaning of equity and of what is equitable. I feel that to introduce so vague a notion into the jurisprudence of the International Court may open the door to making subjective and therefore at times arbitrary evaluations, instead of following the guidance of established general principles and rules of international law in the settlement of disputes submitted to the Court. Thus the question of the actual size of the area of continental shelf which would fall to the Federal Republic on application of the equidistance principle is not in itself relevant for the present cases, where the issues raised are, in the words of Lord McNair, “issues which can only be decided on a basis of law” (Fisheries, dissenting opinion, I.C.J. Reports 1951, p. 158).
43 To demonstrate the necessity for applying the rule of equity, reference has been made to the United States Presidential Proclamation of 1945, which stated that: “In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles”, but here this means nothing more than calling upon neighbouring States to conclude agreements.
44 Certain other proclamations, while stating that boundaries will be determined in accordance with equitable principles, use qualifying terms. For example, the Royal Pronouncement of Saudi Arabia (1949) affirms that the boundaries “will be determined in accordance with equitable principles by Our Government128 in accordance with other States … of adjoining areas”; the Proclamation of Abu-Dhabi (1949) places more emphasis on the unilateral character of the delimitation: the Ruler proclaims that the boundaries are to be determined “… on equitable principles, by us after consultation 1 with the neighbouring States” (U.N. Legislative Series, Laws and Regulations on the Régime of the High Seas, ST/LEG/SER. B/1).
∗ ∗ ∗
45 The Court, rejecting the application of the equidistance method129 in these cases and observing that there is no other single method of delimitation the use of which is in all circumstances obligatory 130, has found that “delimitation is to be effected by agreement in accordance with equitable principles” (Judgment, paragraph 101 (C)(I)) thus envisaging new negotiations (even though, before they requested the Court to decide the dispute between them, the Parties had already carried on somewhat protracted but unsuccessful negotiations).
46 At the same time, the Court has considered it necessary to indicate “the factors to be taken into account” by the Parties in their negotiations (paragraph 101 (D)). The factors which have been specified could hardly, in my opinion, be considered among the principles and rules of international law which have to be applied in these cases. The word “factor” indicates something of a non-juridical character that does not come “within the domain of law”. The Court has put forward considerations that are, rather, economico-political in nature, and has given some kind of advice or even instructions; but it has not given what I personally conceive to be a judicial decision consonant with the proper function of the International Court.
47 It may be appropriate to recall in this connection the observation made by Judge Kellogg in the Free Zones case to the effect that the Court could not “decide questions upon grounds of political and economic expediency” (P.C.I.J., Series A, No. 24, 1930, p. 34). Interpreting Article 38 of the Statute, he noted that “it is deemed impossible to avoid the conclusion that this Court is competent to decide only such questions as are susceptible of solution by the application of rules and principles of law” (ibid., p. 38); and he cited the statement which was made by James Brown Scott in his address at The Hague Peace Conference of 1907: “A court is not a branch of the Foreign Office, nor is it a Chancellery. Questions of a political nature should … be excluded, for a court is neither a deliberative nor a legislative assembly. It neither makes laws nor determines a policy. Its supreme function is to interpret and apply the law to a concrete case … If special interests be introduced, if political questions be involved, the judgment of a court must be as involved and confused as the special interests and political questions131.”
∗ ∗ ∗
48 Although I feel obliged to disagree with the whole of section (C) of the operative part of the Judgment, I consider it necessary to refer here only to sub-paragraph (2) of that section; in which the Court, envisaging a case where “the delimitation leaves to the Parties areas that overlap”, decides that such areas “are to be divided between them in agreed proportions or, failing agreement, equally132”. Here, the Judgment goes beyond the province of questions relating to the delimitation of the continental shelf and enters upon that of questions of distribution, despite the fact that the Court itself has earlier stated that “its task in the present proceedings relates essentially to the delimitation and not the apportionment of the areas concerned” (paragraph 18)133.
49 To draw a boundary line in accordance with the proper principles and rules relating to the determination of boundaries is one thing, but how to divide an area with an underlying “pool or deposit” is another thing and a question which the Court is not called upon to decide in the present cases.
50 It may be sufficient to recall that Article 46 of the Treaty between the Kingdom of the Netherlands and the Federal Republic of Germany concerning Arrangements for Co-operation in the Ems Estuary (Ems-Dollard Treaty signed on 8 April 1960) stated:
“The provisions of this Treaty shall not affect the question of the course of the international frontier in the Ems Estuary. Each Contracting Party reserves its legal position in this respect” (United Nations Treaty Series, Vol. 509, pp. 94 ff.).
And the Supplementary Agreement to this Treaty, signed on 14 May 1962 (ibid., p. 140), which was concluded with a view to co-operation in the exploitation of the natural resources underlying the Ems Estuary, leaves the existing frontiers of both parties intact. And, naturally, for the exploitation, even in common, of a given part of the continental shelf it is necessary first to know the boundaries of the continental shelf of each of the parties. I need scarcely say that common exploitation does not create common possession of the continental shelf, or common sovereign rights in a given area.
51 Generally speaking, such agreements are in fact concluded with a view to preserving the sovereign rights of the individual parties in a given area of the continental shelf. Only in the unthinkable contingency of its being desired to internationalize an entire continental shelf would a departure from this standpoint appear apposite.
52 It would be as well to cite, in addition, Articles 4 of the two agreements concluded by the United Kingdom with, respectively, Norway and Denmark, concerning the delimitation of the continental shelf as between each pair of countries (United Nations Treaty Series, Vol. 551. A/AC. 135/10; reproduced in Memorials, Annexes 5 and 12). Article 4 of the Anglo-Norwegian Agreement reads:
“If any single geological petroleum structure or petroleum field, or any single geological structure or field of any other mineral deposit, including sand or gravel, extends across the dividing line and the part of such structure or field which is situated on one side of the dividing line is exploitable, wholly or in part, from the other side of the dividing line, the Contracting Parties shall, in consultation with the licensees, if any, seek to reach agreement as to the manner in which the structure or field shall be most effectively exploited and the manner in which the proceeds deriving therefrom shall be apportioned” (United Nations Treaty Series, Vol. 551, p. 216).
53 Here we have a special rule which is concerned with relations between licensees and with the possibility of bringing them together in a working-arrangement, but not a rule concerning the actual boundary of a given part of the continental shelf or the possibility of changing that boundary.
∗ ∗ ∗
54 In sum, I consider that the principles and rules of international law enshrined in Article 6, paragraph 2, of the Convention on the Continental Shelf ought to be applied in these cases at least qua general principles and rules of international law.
55 But even if one does not agree that this provision is applicable in these cases in its entirety or in part, it is nevertheless necessary that the principles and rules which are applied in the delimitation of a lateral boundary of the continental shelf should have a natural connection with the three interconnected principles and rules—agreement, special circumstances, equidistance—which determine the boundaries of a territorial sea.
56 For, considering that it is a continuation, a natural prolongation of the territorial sea (its bed and subsoil), the continental shelf is not unlimited in extent, whether seaward or laterally, but lies within limits consistently continuing the boundary lines of the territorial sea in accordance with the same principles, rules and treaty provisions as provided the basis for the determination of the territorial sea between the two given adjacent States; that is, in these cases, between the Netherlands and the Federal Republic of Germany on the one hand and between Denmark and the Federal Republic of Germany on the other.
(Signed) V. Koretsky.
Dissenting Opinion of Judge Morelli
1 . The two Special Agreements asked the Court to indicate what principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them …”. It is quite clear that the principles and rules that the Court was called upon to establish could only be principles and rules which were binding for each of the two parties to each Special Agreement vis-à-vis the other party. It follows that the principles and rules which had to be the subject of the finding requested of the Court were the principles and rules of general international law and not the principles and rules contained in the Geneva Convention on the Continental Shelf of 29 April 1958 (and in particular in Article 6 thereof), which Convention, not having been ratified by the Federal Republic, was not as such binding upon it.
On this point I entirely share the opinion of the Court. Unlike the Court, however, I think that in order to find the principles and rules of general international law concerning the delimitation of the continental shelf it might be useful, whenever the circumstances so require, to take account of the Convention as a very important evidential factor with regard to general international law, because the purpose of the Convention is specifically, at any rate in principle, to codify general international law and because this purpose has been, within certain limits, effectively realized.
In connection with the Convention it may be observed that it was signed by the Federal Republic. This means that the Federal Republic participated in a technical operation which, to the extent of the Convention's avowed purpose of codification, consisted in the establishment of general international law. By its signature the Federal Republic expressed an opinion which, within the limits indicated above, may be qualified as an opinio juris. But it was a mere opinion and not a statement of will, which could only be expressed by ratification. For it is only by ratification that the States signatories to a Convention express their will either to accept new rules or, in the case of a codification convention, to recognize pre-existing rules as binding.
The statement that the purpose of the Geneva Convention was, at least in principle, to codify general international law is not contradicted, in my view and contrary to the opinion of the Court, by the fact that Article 12 of the Convention recognizes the possibility of reservations (including reservations to Article 6). For the power to make reservations is entirely compatible with the codification character of a convention or of a particular rule contained in a convention. Naturally the power to make reservations affects only the contractual obligation flowing from the convention; that obligation, that is to say the obligation vis-à-vis the other contracting parties to consider the rule in question as a customary rule, is excluded in the case of the State making the reservation.
In this connection, sight must not be lost of the fact that the ambit of any codification is necessarily subjectively limited: i.e., limited to the States parties to the codifying convention. It is quite conceivable for a particular provision of the convention, through the effect of reservations, to be affected by a further limitation, in the sense that the obligation to accept the codification is, in relation to that provision, excluded for some of the parties, i.e., for those States which formulate the reservation. This circumstance in no way constitutes an obstacle to considering the provision open to reservation as a codification of general international law.
It goes without saying that a reservation has nothing to do with the customary rule as such. If that rule exists, it exists also for the State which formulated the reservation, in the same way as it exists for those States which have not ratified. The inadmissibility of the reservation is not to be deduced from this, seeing that the reservation is intended to operate solely in the contractual field, i.e., in relation to the obligation, arising out of the convention, to recognize the rule in question. For this same reason, no importance can be attached to the fact that those States which do not ratify the convention, and which consequently remain completely outside the contractual bond, have no possibility of formulating a reservation.
Having clarified my point of view so far as concerns the value to be ascribed to the Geneva Convention as evidence of general international law, I shall now consider matters from the point of view of the latter, i.e., from the same point of view as that adopted in the Judgment of the Court. I shall mention the Geneva Convention only in order to note in Article 6 it is, in substance and within certain limits, in conformity with the rules of general international law with regard to the delimitation of the continental shelf.
∗ ∗ ∗
2 . I think it convenient to start from a point which is generally recognized, and which is not disputed by any of the Parties, namely the existence of certain rights the subject-matter of which is the continental shelf. It is not necessary, for the purposes of the present cases, to determine the nature, the content and the limits of those rights, which Article 2 of the Geneva Convention (which Article reflects, it would seem, customary international law) qualifies as “sovereign rights [over the continental shelf] for the purpose of exploring it and exploiting its natural resources”.
The rights in question belong to the various States considered individually. The continental shelf cannot be conceived of, in the same way as can the high seas, as something common to all States. It is necessary in the first place to rule out any idea of a community participated in by all States and having as its object the continental shelf in general.
But the idea of a community must also be excluded with reference to any given areas of the continental shelf, as a community limited to certain States alone, those which have a given relationship with the area in question. This is of course subject to the possible effect of an agreement whereby two or more States might decide to make their respective areas of the continental shelf common as between themselves.
Apart from this hypothetical case, which is perfectly conceivable, there is no community between two or more States, the object of which is a given area of the continental shelf. Without doubt a situation can exist which gives rise to a problem of delimitation, namely the problem of ascertaining how a certain area of the continental shelf is already apportioned among two or more States. This operation of delimitation has nothing to do with the sharing out, among two or more States, of something common to those States.
In particular it must be denied that the North Sea continental shelf, despite its geological unity, constitutes, or constituted, something common to all the coastal States. It is quite obvious that to affirm the existence of a community in this connection would impeach the legitimacy of the bilateral delimitations, on an equidistance basis, carried out not merely between Denmark and the Netherlands, but also between the United Kingdom and the Netherlands, between the United Kingdom and Denmark, between the United Kingdom and Norway, and between Denmark and Norway. It should also be observed, with reference to these last two delimitations, that the parties did not confine themselves to applying the equidistance criterion, but did something more than that. By the application of the equidistance criterion in relation to the coastlines of the contracting States, leaving out of account the geological feature of the “Norwegian Trough”, the effect of which is that the continental shelf of Norway would, from the geological point of view, be made up of a very narrow strip along the Norwegian coast, what was in substance finally effected was a transfer of certain areas of the continental shelf in favour of Norway. It is only by rejecting the idea of something held in common that those areas, having regard to the said geological feature, could be considered as appertaining to the other two contracting States, to the United Kingdom and Denmark respectively.
If it is to be excluded that the North Sea continental shelf taken as a whole constitutes or constituted something held in common, such a régime must, a fortiori, be excluded in respect of the south-eastern sector of the North Sea (the sector bounded by the equidistance lines between Norway and Denmark, and between the United Kingdom and the continent). Even supposing an initial community to have existed among all the coastal States of the North Sea in respect of the continental shelf of that Sea, it is not clear how such a community could have been dissolved merely in part, to give place to an objectively and subjectively narrower community; and all this as a result, not of a collective agreement between all the States participating in the community, but rather of a series of bilateral agreements as between certain of those States, excluding the Federal Republic.
3 . Once the existence of a rule of general international law which confers certain rights over the continental shelf on various States considered individually is admitted, the necessity must be recognized for such a rule to determine the subject-matter of the rights which it confers. This means, seeing that those rights are conferred on the different States individually, that the rule in question must necessarily indicate the criterion upon the basis of which the continental shelf is divided between the different States.
It is quite possible to speak of a “rule” concerning the apportionment of the continental shelf; but sight must not be lost of the fact that it is not an independent rule but rather an integral part of the same rule which confers upon different States rights over the continental shelf. It follows that failure to indicate the criterion according to which the continental shelf is apportioned would not constitute a true lacuna. A lacuna proper consists in the absence of any legal rule governing a given relationship. In the matter with which we are concerned, on the other hand, a legal rule is admitted to exist: that rule is precisely the one which confers upon different States, considered individually, certain rights over the continental shelf. Now if that rule did not indicate the criterion for apportionment, it would be an incomplete rule. But, unlike other incomplete rules which no doubt exist in the international legal system, this rule is one the incomplete nature of which would have a most particular importance, because it is the determination of the very subject-matter of the rights conferred by the rule that would be omitted. Such an omission would totally destroy the rule.
However this may be, I am of the view that a criterion for apportionment is really provided by the law: as will be seen, it is a criterion which it is possible to deduce from the very rule which confers on different States certain rights over the continental shelf.
The rule, or, more correctly, the criterion for apportionment, can only be a rule or criterion which operates automatically, so as to make it possible to determine, upon the basis of such criterion, the legal situation existing at any given moment. This requirement could not be satisfied by the rule which the Court declares as the only rule governing the matter, a rule that would oblige the States concerned to negotiate an agreement in order to delimit the continental shelf between themselves. Such a rule, for so long as the agreement which it contemplates has not been concluded, would allow a situation of uncertainty to persist with regard to the apportionment of the continental shelf.
It must be pointed out in this connection that it would not be what might be termed a subjective uncertainty, an uncertainty inherent in almost all disputes; an uncertainty that can retroactively be dispelled by a judgment delivered on the basis of the law in force. It would, on the contrary, be an objective uncertainty, which it would not be possible to dispel upon the basis of the law in force because such law would not contain, in this connection, any immediately applicable material rule. For that it would be necessary to wait until a special rule was created by agreement between the States concerned. In the absence of such an agreement, no State could treat the continental shelf area in question as pertaining to itself.
4 . The title upon which the right of a State over a certain area of the continental shelf is based is the contiguity (or adjacency) of that area to the territory of the State concerned.
Since, as is also stated by Article 1 of the Geneva Convention, the continental shelf is made up of the seabed and subsoil of the submarine areas outside the area of the territorial sea, and since, furthermore, the territory of a State comprises not merely the dry-land territory but also the territorial sea, to speak of the contiguity of an area of the continental shelf to the territory of a given State signifies the contiguity of that area to the outer limit of the State's territorial sea. This clarification is important, not only, as will be seen, for the purposes of delimitation, but also for the case of the existence of a “trough”, contained, for its whole breadth, within the bounds of the territorial sea of a State. Such “trough” does not prevent the continental shelf lying beyond the “trough” from being considered as adjacent to the State's territory.
In this connection there may be noted a certain illogicality in the wording of the Geneva Convention. Article 1 refers to “submarine areas adjacent to the coast but outside the area of the territorial sea”; the same Article goes on to refer to “similar submarine areas adjacent to the coasts of islands”. It is not clear how areas which are outside the territorial sea can properly be qualified as adjacent to the coast. Probably this is an inexact form of words employed to indicate, in fact, adjacency, not to the coast, but rather to the outer limit of the territorial sea. More correctly, Article 6 refers to adjacency “to the territories” of two or more States.
5 . The notion of contiguity points to a contact by the continental shelf with the territory of a State: more precisely, a contact with the line which marks the boundary of the territory of the State toward the high seas, a line which is identical with the outer limit of the territorial sea. It is from that line that the continental shelf appertaining to the State commences.
The criterion for determining the extent of the continental shelf which, starting from that line, appertains to a State, by comparison with the continental shelves appertaining to other States, can only be inferred indirectly from the concept of contiguity itself. This concept postulates the coincidence of the line of the boundary of the territory of a State toward the high seas, and the line from which the continental shelf of the State commences. Consequently, the criterion of contiguity cannot, in itself, be used to determine points which do not fall on the said line, being situate beyond it. Nevertheless it is possible, for the determination of these, to infer from the criterion of contiguity another criterion: that of proximity. On the basis of this criterion, there must be considered as appertaining to a given State all points on the continental shelf which, although not situated on the line delimiting the territory of the State, are nearer to that line than to the line delimiting the territory of any other State. In my view, there is nothing arbitrary about this deduction; it is, on the contrary, a wholly logical one.
From the criterion of proximity, the passage is almost automatic to that of equidistance, so that it could be said that the two criteria merge. The criterion of proximity determines points constituting a surface. But there are some points with respect to which the criterion of proximity does not operate, and that because these points are not nearer to the territory of one State than to the territory of another State, because they are equidistant from the territories of the two States. These points form the equidistance line, the line which constitutes the boundary between the continental shelves of the two States. Points situate on one side of this line, and consequently nearer to the territory of one of the two States, are part of the continental shelf of that State; for the same reason, points situate on the other side of the line appertain to the continental shelf of the other State.
6 . As will be observed, I consider the rule of general international law prescribing the equidistance criterion for the delimitation of the continental shelves of various States to be a necessary consequence of the apportionment effected by general international law on the basis of contiguity. I am therefore of the opinion that it is not necessary to ascertain if a specific custom has come into existence in this connection. State practice in this field is relevant not as a constitutive element of a custom which creates a rule, but rather as a confirmation of such rule. Confirmation of the rule is also provided, within certain limits, by the provisions of the Geneva Convention.
So far as State practice is concerned, it should be observed that delimitations effected by different States unilaterally have a greater importance than bilateral acts of delimitation. The latter, whether they conform to the rule or diverge from it, may simply amount to a manifestation of contractual autonomy in a field in which the contracting States have freedom of disposition. Thus their evidentiary value for or against the rule is very limited.
7 . The criterion of equidistance is employed in Article 6 of the Geneva Convention. The first paragraph of that Article refers to the case of two or more States whose coasts are opposite each other, in which case the equidistance line is more specifically characterized as a median line. Paragraph 2 follows the same equidistance criterion for the case of two adjacent States. Nothing is said as to the relationship between two States which, like Denmark and the Netherlands, are not adjacent, and which cannot be considered to be opposite either.
It should be observed in this connection that the equidistance criterion is in itself capable of being used in all conceivable situations, even in the relationship between two States in the situation of Denmark and the Netherlands. Consequently, it is this general employment of the criterion which, taking into account the reasons which justify it, should be considered as contemplated by the rule of general international law which refers to that criterion.
So far as Article 6 of the Geneva Convention is concerned, interpretation of that Article can, in my opinion, only lead to a similar conclusion. In other words, it must be considered that Article 6 of the Convention too uses the equidistance criterion in a general way, even though, according to its terms, it does not expressly indicate anything more than two possible applications of that criterion.
With reference to the distinction between the case of opposite States and the case of adjacent States, which is often made use of, and which is the inspiration of Article 6 of the Convention, it should be added that this is a distinction which is very much a relative one. There are many cases, actual or simply imaginable, with reference to which it would be difficult to say whether they were cases of opposite States or adjacent States.
8 . Article 6 of the Convention, both in paragraph 1 and paragraph 2, refers, in order to determine equidistance, to “the nearest points of the baselines from which the breadth of the territorial sea … is measured”. It appears from the travaux préparatoires of the Conference that other proposals had been made in this connection, consisting of reference either to the low-water mark or to the high-water mark. These two methods, as well as that finally adopted by the Convention, consisting of referring to the baselines, are no more than different methods of determining what constitutes the coast of a State.
However, I consider that, for the delimitation of the continental shelf, it is not correct to relate equidistance to the coast, whether this is determined in the way indicated in Article 6, or in some other way. (Of course, quite a different problem is that of the delimitation, between two States, of the territorial sea itself.) Consequently I consider that on this particular point the Convention has diverged from general international law.
For, according to general international law, since the territory of a State extends up to the outer limit of its territorial sea, which is the line from which begins the continental shelf appertaining to that State, it is necessarily to that line, as well as to the outer limit of the territorial sea of another State, that reference must be made to determine the equidistance line which constitutes the boundary between their respective continental shelves.
It is quite possible that the application of this method might lead to a result different from that produced by the method adopted in Article 6 of the Geneva Convention, which consists in referring to the baselines from which the breadth of the territorial sea is measured. The difference in the results obtained from the two methods is quite obvious, for example, where there are two States lying opposite each other, in relation to which the breadth of the territorial sea is determined in a different way; this is so even where the coastlines of the two States are perfectly straight. But, even apart from the way in which the breadth of the respective territorial seas of the two States concerned is determined, a difference between the results of the two methods may well be the consequence of the configuration of the coastlines of the two States.
So far as concerns the relationship of Denmark and the Federal Republic and of the Federal Republic and the Netherlands, it is certain that the application of the method I consider correct gives a result different from that to which reference of equidistance to baselines leads, although that difference is very slight. In point of fact, even if the possible consequences which the configuration of the coastlines of the three States might have according as to one or other of the two methods of delimitation is used be disregarded and it be consequently supposed that the triangle resulting from the boundary line between Denmark and the Federal Republic and the boundary line between the Federal Republic and the Netherlands has always the same shape, there is no doubt that, if the method which I consider correct be employed, such a triangle would be situated further towards the centre of the North Sea, which would result in a small advantage for the Federal Republic.
9 . The equidistance rule does no more than indicate the way in which the continental shelf is apportioned among different States; just as the apportionment occurs automatically, so the equidistance rule, an expression, as has been seen, of that apportionment, also operates automatically. There appertains to each State ipso jure a certain area of the continental shelf, as determined by virtue of the equidistance criterion.
In the first place, it is not necessary, in order that a State may become the owner of rights over a certain area of the continental shelf, for any legal act to be performed for this purpose by the State concerned. There is a difference here from what happens in the case of the territorial sea, in respect of which there is attributed to each State the legal power to determine its breadth, within certain limits, by means of a unilateral legal act. The Convention on the Continental Shelf, in Article 2, paragraph 3, states indeed: “The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.” It follows that it is incorrect to speak, as Denmark and the Netherlands have done on several occasions, of validity and opposability erga omnes of a delimitation effected by a State unilaterally, in accordance with the equidistance criterion. Unilateral delimitation is not a legal act upon which the rights of the State over the continental shelf depend, and of which the validity or invalidity might be open to argument. Unilateral delimitation is simply a manifestation of State conduct, to be considered as legitimate or otherwise according to whether it is or is not in conformity with the apportionment of the continental shelf automatically effected by international law.
10 . Nor is it necessary, for the equidistance rule to be able to operate, that an agreement be concluded on the question by the States concerned. An agreement in conformity with the equidistance criterion does no more than record a situation which has already arisen automatically; thus, such an agreement has only a purely declaratory character. But inasmuch as it is a matter of rights of which States can dispose freely, it is quite possible for an agreement between the States concerned to diverge from the equidistance criterion. In this case, the agreement has a constitutive character, because it modifies the existing situation, as it results from the automatic functioning of the equidistance rule.
None of this is contradicted, substantially, by the wording of Article 6 of the Geneva Convention. It is of course true that that Article, in paragraphs 1 and 2, mentions agreement first, and thereafter, in case of “absence of agreement”, the equidistance criterion. But this does not by any means signify that logical and chronological priority is attributed to agreement, in the sense that only in the absence of agreement can the equidistance rule operate; this would confer on that rule the character of an alternative rule. If the provisions of Article 6 were understood in this sense, several questions could be raised, to which it would not be easy to reply. At what moment would it be necessary to establish that the condition of absence of agreement, to which the functioning of the equidistance rule is subordinated, is fulfilled? What is the legal situation either before that moment or before the conclusion of an agreement if any? Is it community? What would be the extent of the continental shelf subject to such a community?
In fact, in referring to agreement, Article 6 simply means that the States concerned are always free to delimit the continental shelf, by means of an agreement, in the way they think most appropriate, even so as to modify, if appropriate, the existing situation resulting from the application of the equidistance rule. It is to this rule that there must be attributed, even under Article 6, logical and chronological priority.
When it mentions agreement first, Article 6 adopts the point of view of a court, or of any person or body who proposes to determine the existing legal situation. In order to do this, it is necessary in the first place to ascertain whether an agreement has been concluded by the States concerned. If this is the case, there is nothing to do but hold such agreement to be decisive, because the situation prior to the agreement, and resulting from the equidistance criterion, is no longer in force. It is only in the absence of agreement that the equidistance rule must be applied, by finding for the apportionment effected by that rule, which has not been modified by any agreement.
11 . The equidistance rule, as a rule of general international law codified in Article 6 of the Geneva Convention, is, as has been said, a rule which operates automatically. This characteristic of the rule does not prevent the possibility being imagined, from an abstract point of view, of its being limited by one or more exceptions. But an exception-rule properly so called would not be imaginable except as a rule also of an automatic character. Such would be a rule which, by reference to certain possible circumstances, precisely defined by the rule itself (for example, the existence of an island having certain characteristics as regards its dimensions and position, etc.), declared that in such a case the apportionment is effected (still automatically) according to a criterion other than that of equidistance, which criterion would also have to be specified by the rule.
But no such exception-rule exists in general international law. Nor can such a rule be considered to be contained in Article 6 of the Convention, which, both in paragraph 1 and paragraph 2, declares the equidistance criterion to be applicable “unless another boundary line is justified by special circumstances”. With regard to this rule of the Convention, all the Parties to the present cases have always referred to it as an “exception” to the equidistance rule; the argument has been concentrated on what might be called a quantitative aspect of the matter, namely the wider or narrower scope of the so-called “exception”.
In my opinion, there is no question at all of a true exception: for the simple reason that the special circumstances rule, as it is found in Article 6 of the Convention, is not capable of operating automatically. In the first place, it does not specify in any way what are the circumstances which would prevent the equidistance rule from operating. Secondly, nothing is said as to the effect which the circumstances contemplated should bring about, because the rule is no indication whatsoever of what delimitation should replace that resulting from the equidistance criterion. The determination of both these issues could only be made by agreement between the States concerned, or by an arbitral award. So long as there is neither agreement nor award the situation remains that which results from the equidistance criterion.
It must be concluded on this issue that the equidistance rule is an absolute rule, in the sense that it is not limited by any exception-rule properly so called. Even the case of the existence of an island or promontory which has an abnormal influence on the equidistance line, does not by any means constitute an exception, because such a circumstance does not in itself prevent the equidistance rule from operating.
In my opinion the Court ought first to have stated the equidistance rule as a rule of general international law of an absolute nature (i.e., not limited by any exception), adding that that rule was applicable to the delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of them. It follows (but this is a consequence which it was not necessary to state expressly) that the apportionment now existing is precisely that which results from equidistance.
∗ ∗ ∗
12 . The equidistance rule is a necessary logical consequence of the apportionment of the continental shelf effected by international law by virtue of contiguity. Any consideration of equity falls outside the rule as such. It cannot be said that its purpose is to effect an equitable apportionment, so that it will only operate in cases where its application leads to an equitable result. Were it so it would be necessary to exclude entirely the equidistance rule as a rule of law and to regard the rule governing the apportionment of the continental shelf as something quite different. Such rule would be the rule of equitable sharing out. Equidistance would be but one possible method of arriving at the result of equitable sharing out aimed at by the legal rule.
But the purported rule of equitable sharing out cannot be accepted. Such a rule, as a rule the content of which is to refer the matter to equity, could not automatically effect the sharing out of the continental shelf among the various States. Such sharing out could only be the consequence of an agreement between the States concerned or else of an award which, being based upon equity, would not be a declaratory but a constitutive award. Until the moment when the agreement was reached or the award handed down there would be no apportionment. The situation would be one of community; a hardly conceivable situation which would be in contrast with the attitude of international law on this subject.
13 . All that I have just said does not mean that international law does not concern itself at all with the equitable nature of the apportionment; I am merely saying that considerations of equity cannot act so as to prevent the operation, at any rate initially, of the equidistance rule. The following is, in my view, the manner in which international law has recourse, in this field, to equity.
In my opinion, the equidistance rule (an absolute rule, operating in all cases) is accompanied by another rule, which is not an exception-rule because it has an importance of its own. This latter rule envisages circumstances which exercise a certain influence on the application of the criterion of equidistance, in the sense that such application produces an inequitable result. The purpose of this rule is to correct such a result. It must be pointed out here and now that in order for it to be possible for this rule to operate it is not sufficient that just any divergence be noticed between the result of applying the equidistance rule and an absolutely equitable apportionment. On the contrary, there must be a particularly serious discrepancy.
What is the content of the rule in question? In what way, in other words, does the rule seek to attain its end?
In my opinion, the rule merely obliges the States concerned, in cases where the circumstances envisaged occur, to negotiate among themselves an agreement to revise the existing situation. In other words, the agreement modifying the existing situation, an agreement which can always be freely concluded, becomes, in the circumstances envisaged, a compulsory act. It follows that until such time as a revision agreement is concluded (or, failing agreement, an award is handed down on this subject) the situation resulting from the application of the criterion of equidistance must be considered as the situation in force.
I consider that it is the rule of general international law to which I have just referred which underlies Article 6 of the Geneva Convention when it provides that the equidistance line shall apply “unless another boundary line is justified by special circumstances”. Seeing that the special circumstances rule can only be brought into operation with the agreement of the States concerned, it is precisely an agreement which the rule envisages as the subject-matter of an obligation which it lays upon the States concerned. Here too, it is a question of an agreement for the revision of the situation resulting from the automatic application of the equidistance rule, which, for the Convention also, constitutes the primary rule.
14 . It is not necessary to determine what circumstances can give rise to a seriously inequitable application of the criterion of equidistance and which for that reason may, by virtue of the rule to which I have just referred, entitle a State to claim that the boundaries of its continental shelf should be modified. What matters is not the circumstances as such but rather the inequitable result to which they lead.
They may be geographical circumstances and also circumstances of a different kind. Among geographical circumstances there may be recalled the case, frequently mentioned, of a promontory or islet situated off the coast of a State. It must further be recognized that the configuration of the coastline of a State in relation to the coastline of another adjacent State may also entail an inequitable application of the criterion of equidistance. And it must be added that a circumstance having the same consequence may consist in the configuration of the coastline of one State in relation to the coastlines of two other adjacent States and in the combined effect of the application of the criterion of equidistance to the delimitation of the continental shelf of the first State in relation to the continental shelves of each of the other two States. This is precisely the situation which occurs in the present cases.
15 . I would point out in this connection that there is no question now of effecting an apportionment of the continental shelf among the Parties to these cases ex nova and that it is not a question of how the boundary lines must be drawn in order to arrive at such an apportionment: namely whether the two boundary lines (German-Danish and German-Netherlands) must be drawn conjointly or else independently of each other. It is not at all a question of drawing lines.
The problem supposes a certain apportionment already effected by the automatic operation of the equidistance rule, the equitable or inequitable character of which apportionment has to be appraised. This apportionment, characterized by equidistance lines delimiting on each side the continental shelf of the Federal Republic, is a consequence of the real geographical situation, a situation for which it is not possible to substitute purely hypothetical situations. Admittedly, if one were to start from the hypothesis that the Federal Republic constituted a single State with Denmark, the result of applying the criterion of equidistance for drawing the boundary line between that hypothetical State and the continental shelf belonging to the Netherlands might be recognized as equitable. The same thing would have to be said with regard to the boundary line between Denmark and a hypothetical State comprising the present Federal Republic and the present Netherlands.
Matters are otherwise if one considers (as must be done) the real geographical situation and the results to which, in relation to that geographical situation, the application of the criterion of equidistance leads. I am still referring to the results because it is those results that must be appraised. It is not a matter of judging the equitable or inequitable character either of a boundary line or of two boundary lines, whether considered conjointly or separately. The result can only take concrete shape, in the present case, as the combined effect of the criterion of equidistance for determining both boundary lines together.
In my opinion, the gravely inequitable nature of the result to which the application of the criterion of equidistance in the present case leads must be recognized, this inequitable character consisting in the remarkable disproportion between the area of the continental shelves pertaining to each of the three States on the one hand and the length of their respective coastlines on the other; and this is so even if for the coastline of the Federal Republic there be substituted another shorter line, such as the line Borkum-Sylt.
∗ ∗ ∗
16 . Having indicated the solution that must be given, in my opinion, to the problem of the substantive law, I shall now turn to certain problems of a procedural nature which arise in these cases and which concern the powers of the Court.
There is first of all a problem which is connected with the substantive point which I have just examined. It is the problem, as expressed in a question put to the Parties in the course of the oral proceedings, of whether “the two Special Agreements entitle the Court to enter into an examination of the combined effect of the two boundary lines proclaimed by Denmark and the Netherlands”. To this question Denmark and the Netherlands returned a negative answer.
Now it is quite true that the two disputes to which the two Special Agreements refer are quite distinct. But they are two disputes which have a certain connection with each other, because the claim advanced by the Federal Republic as against Denmark, with a view to the delimitation of the continental shelf as between the two States in a certain way, is based upon the inequitable nature of the consequences to which the criterion of equidistance would give rise if conjointly applied both to the delimitation as between the Federal Republic and Denmark and to the delimitation as between the Federal Republic and the Netherlands. The claim advanced by the Federal Republic as against the Netherlands presents similar features.
It is perfectly possible to envisage, as did Counsel for the two Kingdoms, a situation in which the Court were seised of a request for the resolution (in the real sense) of only one of the two disputes, for example, that between the Federal Republic and Denmark. Now if in such a situation the Federal Republic asked the Court to determine not only its boundary with Denmark but also its boundary with the Netherlands, there can be no doubt that it would not be open to the Court to give a decision in the absence of the Netherlands, whose rights would be at issue. In such event, it would not be inapposite to cite the Judgment of the Court in the Monetary Gold case. If on the contrary the Federal Republic confined itself, in the same situation, to a request in respect of delimitation vis-à-vis Denmark only, I do not see that there would be any obstacle to deciding the dispute, even in the event that, for the purposes of its decision, the Court had also to take into consideration the consequences of the criterion of equidistance on the delimitation between the Federal Republic and the Netherlands.
But these are hypothetical situations which have nothing to do with the present proceedings.
In the present proceedings the Court was confronted with two Special Agreements, each of which requested the Court not to settle the dispute to which it related but rather to determine the principles and the rules of international law applicable to the delimitation of the continental shelf as between the parties to each Special Agreement (respectively the Federal Republic and Denmark and the Federal Republic and the Netherlands). It is altogether true that, despite the joinder of the two cases, each Special Agreement had to be considered separately. But it was quite possible for the Court, on the basis of one of the Special Agreements and leaving the other out of account (and even if the other had not existed at all), to find as to the principles and rules applicable to the delimitation of the continental shelf as between the parties to the Special Agreement under consideration; and that remains true even if the Court had thereby been led to lay down a rule requiring account to be taken of the combined effect of the equidistance line as between the parties to the said Special Agreement, and of the equidistance line between the Federal Republic and the State which was a party to the other Special Agreement. The problem of whether such a rule exists or not is one which concerns the substance, and I have already considered it, answering it in the affirmative.
17 . Having regard to the terms of the Special Agreements, which speak of principles and rules applicable to “delimitation”, etc., the problem arises of whether the Court had the power to lay down a rule which, like the one which I indicated, really concerns not delimitation qua statement of the existing situation but rather a modification of the existing situation.
In reality, from the terminological point of view, a distinction must be made between delimitation which consists in determining the existing situation and has merely declaratory effects, and apportionment, which has effects of a constitutive nature.
One may speak of apportionment, in the first place, in order to denote the result of the automatic functioning of certain rules of law. The placing on record of such a result constitutes the delimitation. This shows that delimitation implies the application of the rules concerning apportionment. It follows that the task with which the Court is entrusted by the Special Agreements, the determination of the principles and rules applicable to the delimitation, consists, in the first place and without the slightest doubt, of the task of the determination of the rules and principles by virtue of which the continental shelf is automatically apportioned as between the various States.
The term apportionment is also used to denote the sharing-out of something held in common. And one may also speak of apportionment to indicate a modification of the apportionment as it eventuates at a given time.
Consequently, if the term “delimitation” employed in the Special Agreements is understood in its proper meaning, the Court's task would have to be considered as confined to determining the rules and principles which effect, automatically, the apportionment of the continental shelf, that apportionment being indeed presupposed by the delimitation. It would not have been open to the Court to indicate either the rules, if any, concerning the apportionment of the continental shelf considered hypothetically as something held in common, or the rules which, like the one which I declared to exist, relate to a modification of the apportionment in force. Nor would it have been open to the Court to indicate the rule which it has determined, which also relates to apportionment.
The Special Agreements must nevertheless be interpreted with due regard to the characteristics of the disputes to which they relate. Now the two disputes are characterized by the Federal Republic's claim to a certain area of the continental shelf lying on the far side of the equidistance lines. The Federal Republic has never asserted, in support of this claim, that there is a right which it enjoys by virtue of the automatic functioning of a legal rule. Rather than a delimitation on the basis of an apportionment already effected, it is an apportionment which ought to be effected to which the Federal Republic has always laid claim. Since the disputes do not concern solely delimitation qua recording of the existing situation, it is necessary to interpret the Special Agreements accordingly, and to hold that, despite the term “delimitation” which they employ, the Special Agreements are intended to authorize the Court to determine even the rules, if any, relating to apportionment, more particularly the rule relating to possible modification of the existing apportionment.
18 . Given that the task entrusted to the Court by the Special Agreements is to determine certain principles and certain rules of international law, it might be thought that the Court ought to have confined itself to stating the rule which, in my opinion, makes revision obligatory in the event that certain circumstances occur, without finding as to whether those circumstances actually exist. It would be for the Parties, in the agreement provided for in paragraph 2 of Article 1 of the Special Agreements, to ascertain whether circumstances rendering revision obligatory actually exist and, if such circumstances are acknowledged to exist, to draw the conclusions therefrom.
It must nevertheless be pointed out that the Special Agreements request the Court to indicate the principles and the rules which are “applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them”. By referring to certain principles and certain rules as “applicable” to the delimitation of the continental shelf as between the Parties, the Special Agreements empower the Court, in my opinion, not only to state the rules and principles, but also to determine what actually is the factual situation and to declare, on the basis of what it finds, whether the rules and principles it has determined ought to be applied. Had the Court come to an affirmative conclusion on this factual point, it would still have been for the Parties, in their agreement, to work out the consequences of that finding.
As regards, in particular, the rule I have stated to exist, which renders revision obligatory, it was for the Court to determine whether the circumstances which that rule contemplates had actually occurred in the present context, more particularly with regard to the gravely inequitable nature of the prevailing apportionment. In the event that the Court had arrived at an affirmative conclusion on that point (as I think it ought to have done), the Court would thereby have found that the rule ought to be applied; a finding equivalent to declaring the Parties to be under an obligation to negotiate an agreement for revision.
19 . The rule which renders it obligatory under certain circumstances to negotiate an agreement for the revision of the existing situation, as it results from application of the equidistance criterion, is a legal rule the content of which is to refer the matter to equity, from two different aspects. In the first place, it is on the inequitable character of the prevailing apportionment that the application of the rule depends. In the second place, the rule does not directly indicate the criteria in accordance with which the revision ought to be effected, because it refers the matter to equity for that purpose also. Nevertheless, despite the fact that it refers the matter to equity, the rule does not cease to be in itself a rule of law. Hence the Court's power to lay it down, in conformity with the terms of the Special Agreements, which request the Court in terms to indicate principles and rules of international law.
Furthermore, given that the Court's task was not to settle disputes but simply to state principles and rules of law, it would be beside the point to enquire whether it was a judgment on the basis of law or a judgment on the basis of equity that the Court was called upon to render. It was, in reality, a judgment which could be given neither on the basis of equity nor on the basis of the law, for the very simple reason that the judgment was, not to apply the law, but, on the contrary, to declare it.
It is nevertheless necessary to pose a rather difficult question, the answer to which depends on the nature of the renvoi to equity by the legal rule. It is necessary to ask whether, after stating the rule which renders negotiation of a revision obligatory in the event that certain circumstances are present, and after finding that those circumstances exist in the present cases, the Court ought also to have indicated the criteria on the basis of which the revision should be carried out.
This question would have to be given an affirmative answer if the criteria of equity could be deemed to be an integral part of the rule of law, in view of the fact that it is to equity that the latter refers the matter. If that is the point of view adopted, it must be held that the Court, in indicating the criteria of equity would have done no more than specify the concrete content of the rule of law it was called upon to determine.
But the premise for such an answer to the question would not be correct. The fact that a rule of law makes a reference to extra-legal criteria by no means signifies that those criteria are embodied in the rule of law. They are criteria which the legal rule makes it obligatory to apply, but which remain outside that legal rule.
It must be concluded that the Court, after stating the rule which makes revision of the existing situation obligatory, ought to have refrained from indicating the criteria of equity in accordance with which such a revision has to be effected. From that standpoint, the powers of the Court in relation to equity were different from the powers which it possessed to find the existence of circumstances rendering revision obligatory. The reason is that, where the last point is concerned, the powers of the Court went beyond a mere finding as to the rule of law; for the Court was, in addition, called upon to determine the factual situation (including the inequitable character of the prevailing apportionment) on which the applicability of the rule to the concrete case depends.
∗ ∗ ∗
20 . In examining the problem of the substantive law, I arrived at a twofold conclusion. I stated, in the first place, that the apportionment of the continental shelf between different States takes place automatically on the basis of the criterion of equidistance. I added, in the second place, that the equidistance rule is accompanied by another rule which, where the result of applying equidistance is in flagrant conflict with equity, obliges the States concerned to negotiate an agreement between themselves to revise the existing situation. This rule is applicable to the instant situation, because the circumstances which it contemplates are there present.
The Court too lays down in its Judgment a rule requiring an agreement to be negotiated. That rule refers to equity so far as concerns the criteria to which the agreement must conform, in the same way as the rule I have stated to exist refers to equity not only because it is upon the basis thereof that it must be seen whether the circumstances upon which its application depends are present, but also, precisely as in the case of the rule laid down by the Court, for the determination of the criteria to which the agreement: it requires to be negotiated must conform.
The fact that the rule laid down in the Judgment likewise refers to equity for the determination of the criteria upon which the agreement must be based ought to have led the Court to state the characteristics of such a renvoi, in order to resolve the question of whether indicating those equitable criteria fell within the task entrusted to the Court in the Special Agreements, which was solely to determine rules of law. I think, for the same reasons as I stated in the preceding paragraph, that the answer that ought to have been given to this question, which the Court has not raised at all, is in the negative.
Between the rule laid down by the Court and the rule I have stated to exist, there are, however, profound differences, which should be stressed. Those differences concern the relationship in which each of the two rules stands towards other rules of law and, in consequence thereof, the very content of the two rules, and, in particular, the role played by the agreement which each of them contemplates.
The rule I have stated to exist is a subsidiary rule, in the sense that it presupposes another rule, which may be termed the primary rule; that rule is the rule of equidistance. Seeing that this latter rule is a rule which functions automatically, the continental shelf is ipso jure apportioned in a certain way. It is in relation to this situation, which is presupposed in the subsidiary rule, that the latter operates, where appropriate, in the sense of requiring the States concerned to negotiate an agreement to revise it. Once concluded, that agreement merely modifies a situation already regulated by the law in a certain way.
The rule laid down in the Court's Judgment, on the other hand, is the only rule concerning the apportionment of the continental shelf. It is a single rule, even though the Judgment distinguishes in its reasoning a first rule, which requires negotiations to be held, from what is termed the rule of equity, and even though in the operative provisions of the Judgment the Court, after having stated that delimitation is to be effected by agreement, refers to equitable principles, going on to indicate certain criteria which the agreement between the States concerned must or may apply. It is quite clear, in fact, that the reference to equity and the indication of certain criteria are merely a means of defining the contents of the rule requiring negotiation; they are by no means a formulation of independent rules or principles additional to the rule requiring negotiation.
Now the rule laid down by the Court (the only rule on this subject) is not a material rule which directly governs the apportionment of the continental shelf. It is, on the contrary, an instrumental rule, i.e., a rule which contemplates a certain way of creating the material rule. That way consists in agreement between the States concerned. For so long as no agreement has been concluded, there is no material rule and there is no apportionment at all. Hence arises that situation of a legal void to which I have already had occasion to refer; a situation which I consider almost inconceivable and in any event regrettable.
It may be questioned in this connection how the Court's view that delimitation (or, more correctly, apportionment) can only take place by means of agreement is reconcilable with what is stated in paragraphs 19 and 20 of the Judgment. In those paragraphs the Court rejects the doctrine of the just and equitable share for the reason (paragraph 19) that the rights of a State over the continental shelf, at least as regards the area that constitutes a natural prolongation of its land territory under the sea, are inherent rights existing ipso facto and ab initio, for the reason, in other words (paragraph 20), that “the notion of apportioning an as yet undelimited area considered as a whole (which underlies the doctrine of the just and equitable share), is quite foreign to, and inconsistent with, the basic concept of continental shelf entitlement, according to which the process of delimitation is essentially one of drawing a boundary line between areas which already appertain to one or other of the States affected”. Despite the difficulty of grasping the exact sense in which the terms “delimitation” and “apportionment” are used in the Judgment, it seems that in the paragraphs I have just mentioned the Court recognizes that, independently of any agreement, there are “areas which already appertain to one or other of the States affected”, in other words, that there is an already existing apportionment (properly so called) of the continental shelf among the States affected, to each of which a certain area is automatically assigned.
21 . The obligation which arises from the rule stated in the Judgment to constitute what is called the “first rule”, i.e., the obligation to negotiate the delimitation of the continental shelf, is regarded by the Court as being identical with the obligation assumed by the Parties under Article 1, paragraph 2, of the Special Agreements (paragraph 86 of the Judgment). With regard to this assimilation, I would refer to what I shall have to say hereafter. So far as concerns the obligation imposed by the rule laid down in the Judgment, it seems that that obligation is conceived of by the Court as independent of the existence of any dispute; this emerges too from the reference made in the Judgment, in this connection, to the Truman Proclamation. This significance of the principle stated by the Court is a wholly natural one, because the requirement of a delimitation or, more precisely, of an apportionment, the need, in other words, to fill the legal void of which I have just spoken, is a requirement which occurs even apart from the existence of a dispute between the States concerned.
Now the obligation to negotiate an agreement for the apportionment of the continental shelf, according to the Court, is only a special application of a principle which is said to underlie all international relations. There is, it seems, a general obligation to negotiate which itself too is independent of the existence of a dispute.
In my opinion, it is not at all possible to recognize the existence of any general obligation to negotiate. A State which is asked by another State to enter into negotiations with a view to the conclusion of an agreement for the settlement of certain relations may, without doing anything contrary to law, refuse to do so, unless there be a specific rule requiring negotiation.
As for Article 33 of the Charter, which is mentioned in the Judgment, that Article refers only to the case of a dispute, and more precisely, to a dispute “the continuance of which is likely to endanger the maintenance of international peace and security”. And, even within those limits, Article 33 by no means creates an absolute obligation to seek, by means of negotiation, a solution to the dispute. The obligation imposed by Article 33 is to seek the solution to a dispute by pacific means; negotiations are but one of the pacific means which the aforesaid Charter provision mentions as capable of being utilized. It is, in other words, an alternative obligation; so that Article 33 would by no means be violated in the perfectly conceivable hypothesis of a State's refusing to negotiate, while seeking a solution to the dispute by other pacific means.
22 . It must further be made clear that the negotiations which the Parties are required to hold on the basis of the rule laid down by the Court, as well as on the basis of the rule which I have stated as a subsidiary rule applicable to the instant situation, have nothing to do, as such, either with the negotiations that were unsuccessfully carried on in 1965 and 1966 or with the negotiations envisaged in Article 1, paragraph 2, of the Special Agreements. The 1965 and 1966 negotiations were aimed at settling by agreement the disputes which had arisen between the Parties. The negotiations envisaged in the Special Agreements will have the same aim, that is to say, the conclusion of agreements for the solution of the same disputes, it being understood that such agreements will necessarily have to be based upon the principles and rules laid down by the Court. On the other hand, the obligation to negotiate arising out of the rule stated by the Court is independent of any dispute; it is aimed not at the resolution of a dispute, which, in some case other than that with which the present cases are concerned, might even be non-existent, but rather at the creation ex novo of a special rule concerning the apportionment of the continental shelf.
It is quite true, however, that the discharge by the Parties to the present cases of this latter obligation implies at the same time the discharge of the obligation which they assumed under Article 1, paragraph 2, of the Special Agreements. But this is a mere coincidence, resulting from the fact that the rule determined by the Court (a rule with which the agreements envisaged in the Special Agreements must conform) is not a material rule but an instrumental rule requiring the negotiation of agreements. In the event of the Court's having stated solely a material rule, there would still be an obligation to negotiate, but it would only be the obligation arising out of Article 1, paragraph 2, of the Special Agreements.
(Signed) Gaetano Morelli.
Dissenting Opinion of Judge Lachs
1 A disagreement has arisen concerning the delimitation of the continental shelf in the North Sea as between the Federal Republic of Germany and the Kingdom of the Netherlands. The two States have succeeded in reaching agreement only on the delimitation of the coastal continental shelf and concluded on 1 December 1964 a convention to this effect. They were, however, unable to agree on the further course of the boundary, negotiations to that end having failed.
2 A similar situation has arisen between the Kingdom of Denmark and the Federal Republic. They too concluded, on 9 June 1965, a convention concerning the delimitation of the coastal continental shelf. The question of the further boundary line has remained unresolved, as negotiations to this end have proved unsuccessful.
3 Thus important differences on the subject subsist and in order to solve them the three States, by two Special Agreements, have requested the Court to decide: “what principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary” determined by the Conventions of 1 December 1964 and 9 June 1965 respectively. They have further declared that they shall delimit the continental shelf “by agreement in pursuance of the decision requested from the International Court of Justice” (Article 1, paragraph 2, of both Special Agreements).
4 In the light of these requests the Court is obviously faced with a question of law. To that extent, its task is clear. To discharge it two methodological approaches are possible: it can address itself directly to the question of the law “applicable” “as between the Parties” or, alternatively, ascertain in general if there exist any “principles and rules of international law” on the subject, and, in the affirmative, decide as to their applicability in the cases before it.
5 The latter approach may be justified in cases where the law is of very recent origin and doubts may exist as to the real status of a principle or rule. This is, indeed, the situation in the cases before the Court.
6 The need for a legal regulation of the exploration and exploitation of the continental shelf has only recently become imperative as a result of the great strides of technology, which have enabled man to reach out for many of the treasures so jealously guarded by nature. Thus the law on the continental shelf is one of the newest chapters of international law.
7 The point of departure for any analysis of the issues involved is the Geneva Convention of 1958 on the Continental Shelf. The question of its applicability—and in particular of the applicability of its Article 6, paragraph 2, dealing with determination of the boundary of the continental shelf adjacent to the territories of two adjacent States—has dominated the whole proceedings in the present cases: it was raised in the written pleadings and again in the course of the oral proceedings. Thus it seems only logical to deal with this issue first. Moreover, the need to seek solutions outside Article 6, paragraph 2, or outside the Convention as a whole, will arise only if the reply as to their applicability is negative.
8 The substance and meaning of Article 6, paragraph 2, are determined by the interrelation of its three elements: agreement—equidistance—special circumstances. To consider them in that order:
(a) The paragraph specifies that in the first place it is by agreement, that the boundary is to be determined. This does not mean, however, that it imposes any more far-reaching obligation than the duty to negotiate of which certain other instruments speak and which, as is well-known, constitutes one of the general principles of contemporary international law. Thus this provision may not be construed as imposing an absolute obligation to reach agreement, but rather as emphasizing the obligation to make every possible effort in that direction: the parties concerned are to endeavour to resolve their differences round a conference table.
It is, then, essential that they open negotiations. The substance of the agreement is left to their discretion; they are perfectly free to decide on its basis and constituents. They may agree to apply one of the other two elements of Article 6, or find another basis for determining the boundary. The law on the subject does not impose any restrictions upon them except those that are essential in all negotiations; in other words, all that is required is that the negotiations be conducted in good faith. Hence the parties can move within the general limits imposed by law.
(b) The second element of Article 6, paragraph 2, is that of equidistance. The words “shall be determined” are used twice in that paragraph: once in relation to the agreement between the parties, and a second time providing for the application of equidistance “in the absence of agreement”. This latter term obviously refers to two situations: either the failure of negotiations or the fact that none took place. For one can very well imagine that two neighbouring States may not even enter into negotiations; there may be compelling reasons which prevent both, or one of them, from doing so. Should the boundary in such event remain uncertain, with all the resulting inconveniences, or even risks? There is no juridical basis for such an inference. Equidistance is also applicable if there are no “special circumstances” justifying another solution.
Not only the text but also the discussion that took place in the International Law Commission should dispel all doubts as to the true bearing of the notion of equidistance. When the Special Rapporteur suggested the addition of the words “as a general rule”, one of the members of the Commission (Lauterpacht) opposed it as “it was at least arguable that they deprived the rule of its legal character”. He argued that “No judge or arbitrator could interpret a text so worded, because any party to a dispute could always argue that its case did not fall within the general rule, but formed an exception to it”. It was then that the words “unless special circumstances should justify … [another] delimitation” were introduced. They were linked with the deletion of the words “as a rule”. And the chairman made the point quite clear by stating that the amendment “stressed the exceptions rather than the rule” (Yearbook of the International Law Commission, 1953, Vol. I, pp. 128, 131, 133). The intention of the drafters is further elucidated in the commentary of the Commission:
“The rule thus proposed is subject to such modifications as may be agreed upon by the parties. Moreover, while … the rule of equidistance is the general rule, it is subject to modification in cases in which another boundary line is justified by special circumstances.” (Yearbook of the International Law Commission, 1953, Vol. II, p. 216, para. 82.)The decision taken at the Geneva Conference is based on the conclusions of the International Law Commission. The rejection of the Vene zuelan amendment (“the boundary of the continental shelf appertaining to such States shall be determined by agreement between them or by other means recognized by international law”) demonstrated the determination of States to accept a clear and definitive rule; no uncertainty was to be allowed on the subject. In no way did it affect the basic concept of what was to become Article 6 of the Convention.
(c) In the logical order I ought now to deal with the third element of Article 6, paragraph 2, namely “special circumstances”. However, this being an exception to the general rule, I shall dwell on its applicability at a later stage.
9 These clarifications seem to go to the essence of the matter. Their purpose, as suggested above, is to elicit the true significance of the notion of equidistance within the framework of Article 6, while placing the latter in its true perspective and establishing its proper relationship to Articles 1 and 2 of the Convention.
10 For, in cases “where the same continental shelf is adjacent to the territories of two adjacent States”, thus where a boundary problem arises, the exercise of the rights defined in Article 2 is conditioned (if not wholly, certainly in some degree) by the application of Article 6, paragraph 2. One may therefore view it as laying down the rules concerning the implementation of Article 2 in specific circumstances. To this extent it has an inescapable impact on Article 2.
11 Having analysed what to my mind is the real meaning and scope of the notion of equidistance, I do not propose to dwell on its virtues or advantages. It may suffice to say that it is practical and concrete. It thus qualifies as a rule, and I shall henceforth so term it. It is admitted that no other principle or rule of delimitation partakes of the same facility and convenience of application and certainty of results. At this stage I would merely add that by the entry into force of the Convention on the Continental Shelf the equidistance rule has become part of the treaty law on the subject.
12 Only two States (the Kingdom of Denmark and the Kingdom of the Netherlands) appearing before the Court in the present cases are parties to the Convention. The Federal Republic, not having ratified it, is not contractually bound by it. In fact no claim in that sense has been advanced.
13 The question which arises, therefore, is whether the rules expressed in Article 6, paragraph 2, of the Geneva Convention of 1958 on the Continental Shelf have acquired a wider status, so as to be applicable to States not parties to the Convention, in particular whether they were susceptible of becoming and have in fact become part of general international law.
14 Both these contentions have been advanced, and both have been denied. To substantiate these denials the history of the Article has been invoked. Special stress is laid on the facts that hesitations accompanied the adoption of the equidistance rule, that other possible solutions were discussed and that the equidistance rule was adopted only at a later stage, on the basis of non-legal considerations.
15 True as these facts may be, they are not conclusive. They constitute but part of the history, above referred to, of how Article 6, paragraph 2, came into being. Doubts and hesitations did exist. But is the same not true of many new rules of law? Even in science, a successful experiment is frequently greeted with suspicion. Some laws of nature, self-evident today, were once viewed as heresy. How much more is this true in the sphere of man-made law, and in particular when a new chapter of law is brought into being?
16 It is all to the credit of the International Law Commission that it discussed the issues involved in Article 6 at such length before adopting its final text. Meanwhile the comments of governments were invited and received. In fact it took three years (from 1953 to 1956) until that text was finalized and submitted to the General Assembly of the United Nations. It passed through all the stages contemplated by the Statute of the International Law Commission for its work in implementation of Article 13, paragraph 1 (a), of the Charter. At the Geneva Conference itself it was the subject of further discussion—before being finally voted into the Convention.
17 Even if it be conceded that the Committee of Experts, in which the equidistance rule originated, was guided by considerations of practical convenience and cartography, this can have no effect on its legal validity. There are scores of rules of law in the formation of which non-legal factors have played an important part. Whenever law is confronted with facts of nature or technology, its solutions must rely on criteria derived from them. For law is intended to resolve problems posed by such facts and it is herein that the link between law and the realities of life is manifest. It is not legal theory which provides answers to such problems; all it does is to select and adapt the one which best serves its purposes, and integrate it within the framework of law. This, for example, is how medium filum aquae has been recognized as the boundary rule for non-navigable rivers, and the rule of the “talweg” for navigable rivers dividing two States. Geography, likewise, lies at the basis of the rules concerning bays (Article 7, paragraph 2, of the Convention on the Territorial Sea). Many illustrations can be derived from other chapters of international law.
18 Nor can the insertion of the primary obligation to determine the boundary by agreement cast doubt on the character of the provision. It is true that this general principle of international law is not normally stated. Yet one can find a similar stipulation in the Projet de Convention sur la Navigation des Fleuves Internationaux drafted 90 years ago: “In the absence of any stipulation to the contrary, the frontier of States separated by a river corresponds to the talweg, i.e., the median line of the channel” [translation by the Registry] (Engelhardt, Du régime conventionnel des fleuves internationaux, Paris, 1879, pp. 228 f.). Reference may also be made to the provisions of Article 12 of the Geneva Convention on the Territorial Sea and the Contiguous Zone.
19 It is also stated that the faculty of making reservations to Article 6, provided by Article 12, paragraph 1, of the Convention, while not preventing the equidistance rule from becoming general law, creates considerable difficulties in this respect. Here we touch the very essence of the institution of reservations. There can be little doubt that its birth and development have been closely linked with the change in the process of elaboration of multilateral treaties, the transition from the unanimity to the majority rule at international conferences.
20 This new institution reflected a new historical tendency towards a greater rapprochement and co-operation of States and it was intended to serve this purpose by opening the door to the participation in treaties of the greatest possible number of States. Within this process, reservations were not intended to undermine well-established and existing principles and rules of international law, nor to jeopardize the object of the treaty in question. Thus they could not imply an unlimited right to exclude or vary essential provisions of that treaty. Otherwise, instead of serving international co-operation the new institution would hamper