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[p.3]
The Court,
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 [p6]
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.
Articles 1 to 3 of the Special Agreement between the Governments of Denmark
and the Federal Republic of Germany are as follows:
"Article 1
(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?
(2) The Governments of the Kingdom of Denmark and of the Federal Republic of
Germany shall delimit the continental shelf in the North Sea as between
their countries by agreement in pursuance of the decision requested from the
International Court of Justice.
Article 2
(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;
3. a German Reply followed by a Danish 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.
(3) The foregoing order of presentation is without prejudice to any question
of burden of proof which might arise.
Article 3
The present Agreement shall enter into force on the day of signature
thereof."
Articles 1 to 3 of the Special Agreement between the Governments of the
Federal Republic of Germany and the Netherlands are as follows:
"Article 1
(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?[p7]
(2) The Governments of the Federal Republic of Germany and of the Kingdom of
the Netherlands shall delimit the continental shelf of the North Sea as
between their countries by agreement in pursuance of the decision requested
from the International Court of Justice.
Article 2
(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.
(3) The foregoing order of presentation is without prejudice to any question
of burden of proof which might arise.
Article 3
The present Agreement shall enter into force on the day of signature
thereof."
The Protocol between the three Governments reads as follows:
"Protocol
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, paragraph 5, 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
non-member States entitled to appear before the Court.[p8]
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 Den-mark 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
time-limits 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.[p9]
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.
2. (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.
3. (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 [p10]
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 above-mentioned
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.[p11]
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.
2. (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.
3. (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.[p12]
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 delimita[p13]tion 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 [p14] 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 un-agreed 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.
*
[p15]
Map 1
[p16]
Map 3
[p17]
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 [p18] 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-memoire, 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 [p19] 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 [p20] 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 [p21] 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 facade, 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 justitia 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 [p22]
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 Con-vention,
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 seabed and exploiting its natural resources. In short, there
is here an inherent 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.[p23]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 un-[p24]derlies 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 mea-sured."[p25]
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 regime 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 regime 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 [p26] 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 regime, 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 regime, 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 regime 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 [p27] 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
regime 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 [p28] 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
con[p29]tinental 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 [p30]
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 appurte-nance 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 [p31]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,
deter-minant. 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 [p32] 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 denned, 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 posi[p33]tive 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.[p34]
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
ad-jacent 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 be-tween 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".[p35]
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 [p36] 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 dif[p37]ference 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.[p38]
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[p39]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 interna-tional
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 [p40] 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
far-reaching, 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.[p 41]
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. Their action
or inaction cannot affect the right of other Slates to enter reservations to
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 crystallize 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-spccial
circumstances basis. A rule was of course embodied in Article 6 of the
Convention, 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
con[p42]cerned 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 ubstracto 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.[p43]
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 Con-vention, 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[p44]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 [p45] 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 [p46]
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 circum-stances 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 regime 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 [p47]
delimitation of adjacent continental shelves—that is to say, rules binding
upon States for all delimitations;—in 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 regime 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 dis-putes 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 [p48] 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 [p49] 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 im-perative 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 [p50] 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
[p51] 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 regime. 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 regime
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 [p52] 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.
***[p53]
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 regime of the continental shelf, have been
examined for that purpose only. This regime 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,
The Court,
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 regime 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:[p54]
(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.,
President.
(Signed) S. Aquarone,
Registrar.
Judge Sir Muhammad Zafrulla Khan makes the following declaration:
I am in agreement with the Judgment throughout but would wish to add the
following observations.
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.
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 [p55] second paragraph
of that 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.
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".
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 regime 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
regime, 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."
If it were correct that the doctrine of the coastal State's exclusive rights
over the adjacent continental shelf was in process of formation [p56]
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
regime 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:
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.[p58]
Separate Opinion of President J.L. Bustamante Y Rivero
[Translation]
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 regime 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.[p58]
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 [p59]
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 I
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 inter[p60]mediate 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.[p 61]
(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 regime. 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 [p62]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 [p63] 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 regime 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 1 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 [p64]
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 [p65] 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 [p66]
Separate opinion of Judge Jessup
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.
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.
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.
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.
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.
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 [p67] naturally hesitated to make the very large investments required
FN1 until the enactment of national laws revealed the terms on which
concessions would be granted FN2 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.
---------------------------------------------------------------------------------------------------------------------
FN1 E.g., the cost for a fixed platform in 100 ft. of water has been
estimated at $3,500,000; in 500 ft. of water, at 814,250,000. Another
estimate is for £6,000 a day during drilling operations. The pipe-line from
the productive wells on Leman Bank to the shore terminal in Great Britain, a
distance of some 30-40 miles, is said to have cost £7 million to £8 million.
FN2 The United Kingdom and German orders, laws or decrees were not in effect
until mid-1964 and final Dutch regulations were operative only in 1967. The
Federal Republic faced difficulties like those encountered in the United
States, that is to say. the respective rights of the Federal Government and
of the separate States or Lander.
---------------------------------------------------------------------------------------------------------------------
The Federal Republic of Germany
The Memorial of the Federal Republic, in Part I, 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).
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 [p68] 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."
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" FN1.
----------------------------------------------------------------------------------------------------------
FN1 The citations could be supplemented by reference to the prestigious
authority of Gidel (A/CN. 4/32), by Admiral Mouton's reiteration of his view
in his article in Marineblad. January 1959 and in his Tehran lectures in
October 1959. and by the opinions of Pearcy, Geographer of the United States
Department of State and Commander Kennedy (IV Whiteman's Digest, 329 and
913).
------------------------------------------------------------------------------------------------------------
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
Estuary FN2.
---------------------------------------------------------------------------------------------------------------------
FN2 In 1963 this co-operative arrangement was applied on a fifty-fifty basis
to gas wells on the German side of the line near Groothusen and on the Dutch
side near Bierum, according to Petroleum Press Service, 1963, p. 377 and
1964, p. 332. On the adjacent land areas, there is the great Groningen field
in the Netherlands, and the large German resources found between the
Netherlands frontier and the Ems and further eastward to the Wcser.
----------------------------------------------------------------------------------------------------------------
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".
In the Reply (section 31) there is a discussion of allegations in the [p69]
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.
Denmark
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.
M!!!oller 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 company FN1 was planning to drill
outside the German territorial sea. [p70]
--------------------------------------------------------------------------------------------------------------
FN1 Presumably Amoseas.
-------------------------------------------------------------------------------------------------------------------
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.
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.
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 line FN1
---------------------------------------------------------------------------------------------------------------------
FN1 The Special Agreement between the United Kingdom and the Netherlands of
6 October 1965 concerning the exploitation of a single geological structure,
is not mentioned.
---------------------------------------------------------------------------------------------------------------
The Netherlands
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".
Further licences have been issued since the new Netherlands legislation went
into effect in early 1967. Figure 2 on page 315 of the Netherlands
[p71]Counter-Memorial shows the charting of the blocks for which licences
are granted.
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".
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".
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".
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."
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 . . ."[p72]
—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".
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".
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.
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.
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."
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?"
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 [p73] 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 regime 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."
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 con-siderable
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.
Subsequently, on the same day, the German Agent made the following
comments:[p74]
"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.)
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."
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."
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 [p75] xtensive 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."
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."
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.
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 [p76] some crude oil” FN1 . As for Denmark, its economic position-
---------------------------------------------------------------------------------------------------------------
FN1 The reserves in the Slochteren gas field have been estimated at more
than 40 million million cubic feet. It is probably the second or third
largest field in the world.
----------------------------------------------------------------------------------------------------------
"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".
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 indicate FN2.
----------------------------------------------------------------------------------------------------------------
FN2 The documents furnished in response to a request from the Court contain
only excerpts from the governmental records.
--------------------------------------------------------------------------------------------------------------
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 [p77]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.
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.)
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.
According to a Danish Government memorandum dated 17 February 1965:
"At a meeting held to deal with the question of continuing the
[p78]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.
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.
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 main [p79]land 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.
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.)
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.
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 ah initio. Rather, I think there should be applied
the following conclusion of the Arbitral Tribunal which, in the Grisbadarna
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
[p80]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).
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.)
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 [p81]
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 Gris-badarna
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.
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 situa-tions
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).
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 cooperation 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-[p82]Norway Agreement of 10 March
1965 there is again provision for consulting any licensees.
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.
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.
Nor is it irrelevant to recall that the principle of international
cooperation 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—
". . . that the nature of the problems involved in the conservation of the
living resources of the high seas is such that there is a clear necessity
that they be solved, whenever possible, on the basis of international
co-operation through the concerted action of all the States concerned . .
.".[p83]
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).
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.
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 coordinating 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).)
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 ap-propriate
safeguards concerning future exploitation, might undertake the requisite
wildcat operations.
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 [p84]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.)
I wish to state also that I associate myself with the points made in the
Declaration of Judge Sir Muhammad Zafrulla Khan.
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. [p85]
Separate Opinion of Judge Padilla Nervo
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.
***
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.
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.
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.
The Federal Republic of Germany contends that the Convention is not
applicable, since it has not ratified it.
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.
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.[p86]
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.
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.
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.
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.
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.
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.[p87]
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.
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.
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.
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.
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.
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.
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.
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.
The criterion of equidistance is a technical norm which should aim at [p
88]realizing what is just according to the natural law of nations. (Article
38 (1) (c) of the Court's Statute.)
The Convention includes some technical rules which cannot yet be regarded as
principles of international law.
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 he
determined by agreement".
"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.
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.
Geographical realities may justify a deviation from a rigid application of
the equidistance principle.
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.
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.
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.[p 89]
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.
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.
Representatives wishing to permit reservations had been reproached for
defending national interests; but, in fact, they were attending the
Conference for that very purpose.
The debate showed that if an absolute prohibition of the making of
reservations were pressed there could be no agreement.
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.
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.
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.
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.
Geographically, the North Sea constitutes what for purely practical purposes
may be called an "internal" sea, in the sense that while it has [p 90]some
outlets to the ocean it is bordered along almost the whole of its periphery
by the territories of a number of coastal States.
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.
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.
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.
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.
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.
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.[p 91]
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.
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.
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.
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.
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.
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.
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.
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.
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. [p 92]
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.
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.
The obligation to negotiate is an obligation of tracto continuo; it never
ends and is potentially present in all relations and dealings between
States.
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.
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.
The question arises: do geographical realities justify a deviation from the
rigid application of the equidistance rule? I believe they do justify such
deviation.
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.
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.
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.
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. [p 93]
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."
This is also confirmed by the commentary which the International Law
Commission added to Article 72 of its draft (subsequently Article 6 of the
Continental Shelf Convention):
". . . 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.)
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.
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.
M. W. Mouton, "The Continental Shelf", Recueil des Cours, Volume 85 (1954,
I), page 420:
"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."
Colombos, The International Law of the Sea, 1959, page 70:
"The rule, however, admits of some elasticity in the case of [p 94] islands
or navigable channels as well as in the case of an exceptional configuration
of the coast."
Olivier de Ferron, Le droit de la mer, Vol. II, page 202:
"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.]
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.
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.
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.
The equidistance method cannot be considered as a rule derived from
fundamental principles of general acceptance.[p 95]
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.
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 [p 96] 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.
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.
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.
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.[p 97]
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.
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.
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 1945 FN1) 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.
---------------------------------------------------------------------------------------------------------------------
FN1 Presidential Declaration with respect to continental shelf, 29 October
1945: "[The continental shelf] clearly forms an integral part of the
continental countries and it is not wise, prudent or possible for Mexico to
renounce jurisdiction and control over and utilization of that part of the
shelf which adjoins its territory in both oceans.
………………………………………………………………………………………………………
For these reasons the Government of the Republic lays claim to the whole of
the continental platform or shelf adjoining its coast line and to each and
all of the natural resources existing there, whether known or unknown, and
is taking steps to supervise, utilize and control the closed fishing zones
necessary for the conservation of this source of well-being.
The foregoing does not mean that the Mexican Government seeks to disregard
the lawful rights of third parties, based on reciprocity, or that the rights
of free navigation on the high seas are affected, as the sole purpose is to
conserve these resources for the well-being of the nation, the continent and
the world." [Translation by the U.N. Secretariat.]
See also Articles 27, 42 and 48 of the Mexican Constitution, as amended by
Decree of 20 January 1960 (Diario Oficial, Vol. CCXXXVII, No. 16) "The
national territory comprises . . . [inter alia] the continental shelf and
the submarine shelf of the islands, keys and reefs" (Art. 42). [Translation
by the U.N. Secretariat.]
---------------------------------------------------------------------------------------------------------------------
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 [p
98]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.
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.
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.
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".
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.
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.
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.
***
In my opinion, paragraphs 71 to 75 of the Court's considerations contain—in
their application to the present case—the statement of the[p99]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.
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 norm-creating
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.)
***
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.
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.
I believe furthermore that the Judgment of the Court in the North Sea
Continental Shelf cases will also he 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. [p100]
Separate opinion of Judge Fouad Ammoun
[Translation]
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 controversy FN1 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 comprehensive FN2. 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 concept FN3". This observation, coming from
one of the Parties, is fraught with con-sequences, 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 shelf FN4 and as to its outer limits FN5.
---------------------------------------------------------------------------------------------------------------------
FN1 See statements to the Conference made by the representatives of France,
Greece, and the Federal Republic of Germany (Official Records, Vol. VI, p. 1
and pp. 5-7).
FN2 Report of the Ad Hoc Committee to the General Assembly of the United
Nations. 1968.
FN3 Address of 5 November 1968.
FN4 Infra, para. 17.
FN5 Infra, para. 7.
--------------------------------------------------------------------------------------------------------------------
[p 101]
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 question 1; 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 FN1
---------------------------------------------------------------------------------------------------------------------
FN1 Infra, para. 15.
---------------------------------------------------------------------------------------------------------------------
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 regime 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 genera]
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 [p 102]
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 or in-dependent.
It is true that, in O'rder 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 FN1, 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 [p 103] 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 Convention FN1".
---------------------------------------------------------------------------------------------------------------------
FN1 As to the effects of the unilateral declaration, see infra, para. 21.
FN1 Memorial, para. 8.
---------------------------------------------------------------------------------------------------------------------
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 [p 104] 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 Gentilis FN1 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.
---------------------------------------------------------------------------------------------------------------------
FN1 A. Gentilis: The law of nations is ". . . the product of prolonged
agreement between peoples, established by usage, which itself is revealed by
history".
---------------------------------------------------------------------------------------------------------------------
*
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
[p 105] 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 jurist FN1 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
consulting 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".
---------------------------------------------------------------------------------------------------------------------
FN1
G. Scelle, Plateau continental et droit international. 1955, pp. 35 and 36.
--------------------------------------------------------------------------------------------------------------------
The representatives of certain countries echoed this doctrinal point of view
at the Geneva Conference on the Law of the Sea in 1958 FN2.
---------------------------------------------------------------------------------------------------------------------
FN2 Supra, note 1. p. 100.
---------------------------------------------------------------------------------------------------------------------
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 Pro-[p 106] clamation, 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 or 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 reservations FN1 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.
---------------------------------------------------------------------------------------------------------------------
FN1
Supra, note 1, p. 100.
--------------------------------------------------------------------------------------------------------------------
***
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 sea FN2 ?”
---------------------------------------------------------------------------------------------------------------------
FN2 Address of 5 November 1968.
---------------------------------------------------------------------------------------------------------------------
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. [p 107]
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 metres FN1, 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 coast FN2,
and left by others without any limits whatever.
---------------------------------------------------------------------------------------------------------------------
FN1 Geneva Conference, Preparatory documents. Vol. 1, pp. 39-40.
FN2 The 200-mile limit is well within the extreme width of the continental
shelf which in certain regions is as much as 1,300 kilometres.
---------------------------------------------------------------------------------------------------------------------
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
protected FN3. 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 world FN4.
---------------------------------------------------------------------------------------------------------------------
FN33 Quoted by G. Scelle, op. cit., p. 46.
FN4 Cf. M. W. Mouton, The Continental Shelf, p. 80, who states as follows:
"Peru has an extra reason, because the fish form the food for guano birds,
which are an economic asset to the country."
The decisions of municipal courts of Peru have confirmed this view: judgment
of the Tribunal of Piata of 26 November 1954, in the case of the ships,
Olympic, Victor and others.
---------------------------------------------------------------------------------------------------------------------
Thus a common declaration by Peru, Chile and Ecuador proceeded to reinforce
this claim in the following terms: [p 108]
"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 protestFN1. 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
[p109] one of a very small extent FN1 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
whethct the objections of the maritime Powers were not in consequence
belated.
---------------------------------------------------------------------------------------------------------------------
FN1 United States Protest Notes of 2 July 1948 to Peru. Chile and Argentina,
of 12 December 1950 to El Salvador and 7 June 1951 to Ecuador; United
Kingdom Notes of 6 February 1948 to Peru and Chile, of 9 February 1950 to
Costa Rica, of 12 February 1950 to El Salvador, of 23 April 1951 to Honduras
and of 14 September to Ecuador. France, which was asked by the United
Kingdom to make its position known, in its reply of 7 April 1951 gave its
support to the positions taken up by the two other great maritime Powers.
However, the American Professor L. Henkin, concurring with the views of the
Latin American countries, writes: "The United States . . . might consider
also a declaration, alone or with others, that under the Convention (of
Geneva) it claims a shelf out to the 600, 1,000, 2,000 or even 3,000 metres
isobath, or out to 50, 100 or more miles from shore." (The Mineral Resources
of the Seas. pp. 38-39).
Professor Henkin reports furthermore that the United States has granted
permits for exploitation on the high seas which he lists as follows: "The
U.S. has issued phosphate leases some 40 miles from the California coast in
the Forty-Mile Bank area in 240 to 4,000 ft. of water . . . Oil and gas
leases some 30 miles off the Oregon coast in about 1,500 ft. of water; and .
.. (has) threatened litigation against creation of a new island by private
parties on Cortez Bank, about 50 miles from San Clemente Island off the
coast of California, or about 100 miles from the mainland. Each of the
California areas is separated from the coast by trenches as much as 4,000 to
5,000 ft. deep. Additionally, the Department of the Interior has, by
publishing OCS leasing maps, indicated an interest to assume jurisdiction
over the ocean bottom as far as 100 miles off the Southern California coast
in water depths as great as 6,000 ft." (Op. cit. p. 38, note 117.)
FN1 At the 67th Session of the International Law Commission in 1950, J. L.
Brierly said: ". . . if the Commission was of the opinion that the right of
control and jurisdiction depended on the presence of the continental shelf,
it was committing an injustice towards certain countries, such as Chile,
that possessed no continental shelf." G. Amado and J. Spiropoulos supported
the same argument, and the former proposed a lineal limitation of waters 20
miles from the coasts. At the 117th Session of the I.L.C. in 1951, J. M.
Yépés submitted a draft to this effect, "with Peru and Chile in mind".
--------------------------------------------------------------------------------------------------------------------
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 FN2. 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.
---------------------------------------------------------------------------------------------------------------------
FN2
Common Rejoinder, Annex 7.
---------------------------------------------------------------------------------------------------------------------
The second fact is the claim by Saudi Arabia over the depths of the Red Sea,
which has just been announced FN3. The Red Sea had been kept [p110] 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.
---------------------------------------------------------------------------------------------------------------------
FN3
Le Monde, 30 October 1968.
Beneath the Red Sea there are metalliferous muds, rich in copper, zinc, etc.
. . . In some of its deeps there are hot brines. The deposits in solution,
as well as the geothermal energy associated with these hot brines offer
resources that may become available in the not too distant future (Report of
the Ad Hoc Committee mentioned on p. 100, note 2).
---------------------------------------------------------------------------------------------------------------------
*
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 sea FN1".
---------------------------------------------------------------------------------------------------------------------
FN1
Geneva Conference, Vol. VI, p. 24, paras. 20 and 22.
---------------------------------------------------------------------------------------------------------------------
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 countries FN2".
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.
---------------------------------------------------------------------------------------------------------------------
FN2
Idem., p. II, para. 22.
---------------------------------------------------------------------------------------------------------------------
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 shelfFN3". 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 fairer FN4". 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 StateFN5 ".
Yugoslavia made a formal proposal for a limit situated 100 miles [p 111]
---------------------------------------------------------------------------------------------------------------------
FN3 Idem., p. 27, para. 7.
FN4 Idem., p. 5, para. 21.
FN5 Idem., p. 31, para. 2.
--------------------------------------------------------------------------------------------------------------------
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 exploitation FN1
---------------------------------------------------------------------------------------------------------------------
FN1
Idem., p. 32. para. 7, p. 42. para. 15, and proposal (A/CONF.13/C.4,L.I2).
---------------------------------------------------------------------------------------------------------------------
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 slope FN2:". Finally the Netherlands proposed, "in
line with statements made by several representatives, in-cluding 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 articles FN3" of the
Convention.
---------------------------------------------------------------------------------------------------------------------
FN2
Idem., p. 5. para. 24.
FN3 Idem., p. 35, para. 6.
---------------------------------------------------------------------------------------------------------------------
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
regime of the sea FN4".
---------------------------------------------------------------------------------------------------------------------
FN4
Idem., p. 132. Doc. A/CONF. 13 /L.50.
Attention should be directed also to the reservations made in 1968 by these
three States and also by Argentina. Brazil and El Salvador on the occasion
of the report of the Working Group to the Ad Hoc Committee set up by the
General Assembly of the United Nations to study the peaceful uses of the
seabed and the ocean floor, "understanding, in particular, that the
conclusions reached by the Working Group in no way constitute a prejudgment
concerning the legal aspects of the question".
--------------------------------------------------------------------------------------------------------------------
*
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 coasts FN5. [p112]
---------------------------------------------------------------------------------------------------------------------
FN5
Cf. L. Henkin, The Mineral Resources of the Seas. p. 23: ". . . since
geology was not crucial to the legal doctrine, it was difficult to resist
claims of coastal States that had no geological shelf, whether in the
Persian Gulf or in Latin America."
--------------------------------------------------------------------------------------------------------------------
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 equity
FN1. 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.
---------------------------------------------------------------------------------------------------------------------
FN1
Cf. C. del Vecchio, Philosophie du droit, p. 282, note 1.
-------------------------------------------------------------------------------------------------------------------
*
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 seasFN2
-----------------------------------------------------------------------------------------------------------
FN2
The historic character of the Gulf of Aqaba was disputed in the General
Assembly of the United Nations in February 1957. The United States declared
however that, should the case arise, it would accept the decision of the
International Court of Justice (Memorandum of 11 February 1957 to Israel and
Declaration by Secretary of State Dean Rusk of 5 March 1957). The former
states that: "In the absence of some overriding decision to the contrary, as
by the International Court of Justice, the United States, on behalf of
vessels of United States registry, is prepared to exercise the right of free
and innocent passage and to join with others to secure general recognition
of this right", and the latter states that: ". . . The United States view is
that the passage should be open unless there is a contrary decision by the
International Court of Justice."
-----------------------------------------------------------------------------------------------------------
(b) Sedentary fisheries and fisheries with fixed equipment, the customary
rules relating to
which were adopted by the General Convention of [p113]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 East FN1
-----------------------------------------------------------------------------------------------------------
FN1
The pearl oyster fisheries of Ceylon and Bahrain had already received the
attention of Vattel (The Law of Nations, 1758). P. C. Jessup (The Law of
Territorial Waters, 1927, p. 15), also recalled that the pearl fisheries of
Ceylon go back in history as far as to the sixth century B.C. Whilst those
of the Arabian-Persian Gulf were, as is well known, mentioned about the year
1000 in the Arabian Nights.
M. W. Mouton was thus able to write: "We believe, that prescriptive rights
could develop quietly, and had existed long enough to be respected when
people became conscious of the freedom of the seas" (op. cit., p. 145).
-----------------------------------------------------------------------------------------------------------.
(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. FN2
----------------------------------------------------------------------------------------------------------
FN2 Cf. L. Henkin, op. cit., p. 26: "Some writers saw in the cases on
sedentary fisheries and submarine mining a basis in customary law for the
Truman proclamation and for the later Convention on the continental shelf."
Ibid., p. 27: "Some of them (the cases cited against res communis) occurred
before the freedom of the sea was established as a principle of the
international law. In the few cases involving pearl or oyster fisheries the
claims were based not on occupation, but on prescription or historic
rights."
-----------------------------------------------------------------------------------------------------------
*
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
movere FN3, and take shelter behind situations consolidated by time FN4
which have changed into rules of law, no longer admitting for the future of
any possible protests FN5. The feeling of society, it must be concluded, [p
114] 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.
---------------------------------------------------------------------------------------------------------------------
FN3
See Arbitral Award of 13 October 1909 in the Grisbadarna case between Sweden
and Norway, where it is stated that "it is a settled principle . . . that a
state of things which actually exists and has existed for a long time should
be changed as little as possible". This is a principle of general law
supported particularly by G. Gidel, Le droit international public de la mer.
Vol. III, p. 634. It is also the case in Muslim law, Majallat El Ahkam, Art.
5.
FN4 The Arbitral Tribunal, in the North Atlantic Coast Fisheries case,
recognized in its award of 27 January 1909 that "conventions and established
usage might be considered as the basis for claiming as territorial those
bays which on this ground might be called historic bays".
FN5 Cf. Ch. de Visscher, Problèmes d'interprétation judiciaire en droit
international public, p. 176.
---------------------------------------------------------------------------------------------------------------------
*
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 simultaneously FN1. The Declaration by
Mexico of 29 October 1945 claiming exclusive fishing zones beyond the
continental shelf has been interpreted as expressing the same conception
FN2. 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.
---------------------------------------------------------------------------------------------------------------------
FN1
The said Declaration reads: "It is hereby declared that the Argentine epicontinental sea and continental shelf are subject to the sovereign power
of the nation."
FN2 Cf. M. W. Mouton, The Continental Shelf, p. 74.
--------------------------------------------------------------------------------------------------------------------
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? [p 115]
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 docu-ments of the
International Law Commission and the Committee of Experts. On the other
hand, the use of the term "adjacent" is natural!> 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 [p 116] 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) FN1, or over
the epicontinental platform (Mexico, Argentine, Peru) FN2. The authority of
legal writers is generally favourable to it FN3, and the International Law
Commission made it its own.
---------------------------------------------------------------------------------------------------------------------
FN1
The Truman Proclamation provides in its fourth paragraph: ". . . since the
continental shelf may be regarded as an extension of the land-mass of the
coastal nation and thus naturally appurtenant to it."
FN2 These States used terms similar to those which appear in the Truman
Declaration. The following wording is used: "The continental shelf forms a
single morphological and geological unity with the continent."
FN3 Cf. the writers mentioned by M. W. Mouton, op. cit., p. 33.
---------------------------------------------------------------------------------------------------------------------
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 regime. 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
[p117]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.
*[p 118]
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 epicontinental 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 sover-eignty 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 therein FN1
---------------------------------------------------------------------------------------------------------------------
FN1
This reasoning does not seem to be that followed by the Ad Hoc Committee set
up by the United Nations to study the peaceful uses of the seabed and the
ocean floor.
--------------------------------------------------------------------------------------------------------------------.
*
20. It will hereinafter be established that the three Parties to the
present case are bound by the provisions of the aforementioned Article 2
[p119] 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 Convention FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
Supra, para. 3.
---------------------------------------------------------------------------------------------------------------------
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 regime, by reason of past conduct, declarations, etc.,
which not only clearly and consistently evinced acceptance of that regime
but also had caused Denmark or the Netherlands, in reliance on such conduct,
detrimentally to change position or suffer some prejudice".[p 120]
The Judgment does not take into account a well-settled doctrine that a State
may be bound by a unilateral act FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
E. Suy, Les actes juridiques internationaux, 1962, pp. 148 and 152.
---------------------------------------------------------------------------------------------------------------------
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 regime of Article 6".
While agreeing with the Judgment that Article 6, as such, is not applicable
to the delimitations envisaged in the present cases, 1 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
1964 FN2, 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.
---------------------------------------------------------------------------------------------------------------------
FN2
Memorial, Annex 4.
---------------------------------------------------------------------------------------------------------------------
*
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 law FN3—is numbered among
the general principles of law accepted by international law as [p 121]
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.
---------------------------------------------------------------------------------------------------------------------
FN3
Majallat El Ahkam, Art. 100.
---------------------------------------------------------------------------------------------------------------------
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 1965 FN1 that "as regards the further
course of the dividing line, each Contracting Party reserves its legal
standpoint".
---------------------------------------------------------------------------------------------------------------------
FN1
Memorial, Annex 7.
---------------------------------------------------------------------------------------------------------------------
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 meaning FN2". It should also be remarked that the
German-Danish treaty allegedly includes only one equidistance point, the
terminal of the partial boundary FN3.
-
--------------------------------------------------------------------------------------------------------------------
FN2
Advisory Opinion of 28 May 1948 on Admission of a Stale to Membership in the
United Nations; Advisory Opinion of 3 March 1950 on the Competence of the
General Assembly for the Admission of a State to the United Nations;
Judgment in the Asylum case of 20 November 1950; Advisory Opinion of 8 June
1960 on the Constitution of the Maritime Safety Committee.
FN3 Reply, para. 29.
---------------------------------------------------------------------------------------------------------------------
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 expos!!!e 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 claim FN4. 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 [p 122]we will
suppose to be efficacious, the status of a customary law rule which it does
not possess FN1.
---------------------------------------------------------------------------------------------------------------------
FN4 Counter-Memorial of the Danish Government, para. 24 and Counter-Memorial
of the Netherlands Government, para. 25.
FN1 Infra, paras. 24-30.
---------------------------------------------------------------------------------------------------------------------
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 [p 123]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
ferenda, 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 [p 124]
become a universally recognized custom. The voices of authoritative writers
FN1 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.
---------------------------------------------------------------------------------------------------------------------
FN1
In particular, those of G. Scelle and A. de Lapradelle; the representative
of the Federal Republic of Germany. Dr. Münch, still said of the continental
shelf rule at the Geneva Conference that "many authorities reject it de lege
lata and de lege ferenda."
---------------------------------------------------------------------------------------------------------------------
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 States FN2. 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 . . .".
---------------------------------------------------------------------------------------------------------------------
FN2
Supra, para. 15.
---------------------------------------------------------------------------------------------------------------------
On the other hand, it is obvious that boundary lines dividing rivers should
not be selected as precedents. Moreover, such boundary lines [p.125] 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 States FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
Convention on the Territorial Sea, Article 12; on the Contiguous Zone,
Article 24; on Fishing and Conservation of the Living Resources of the High
Seas, Article 7, which refers to Article 12 of the Convention on the
Territorial Sea.
---------------------------------------------------------------------------------------------------------------------
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 [p.126] 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 [p 127] 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 [p 128]
bases custom on State 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 [p 130] 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 line FN1". 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.
---------------------------------------------------------------------------------------------------------------------
FN1
Rejoinder, para. 72.
---------------------------------------------------------------------------------------------------------------------
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 denied FN2.
---------------------------------------------------------------------------------------------------------------------
FN2 para. 21, on the effect of unilateral declarations.
---------------------------------------------------------------------------------------------------------------------
Furthermore, since the European Fisheries Convention of London of 24 March
1964 adopted the equidistance formula on the model of the [p 130]Geneva
Conventions on the Territorial Sea, the Contiguous Zone and Fishing Zones
FN1, 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.
---------------------------------------------------------------------------------------------------------------------
FN1
Supra, para. 22.
---------------------------------------------------------------------------------------------------------------------
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 FN2—it is not the same with a regional customary rule, having [p
131] 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 Party FN1."
---------------------------------------------------------------------------------------------------------------------
FN2
Thus the right of countries becoming independent, which have not
participated in the formation of rules which they consider incompatible with
the new state of affairs, is preserved.
FN1 In support of this opinion, cf. I.C.J., Asylum case, Judgment of 20
November 1950; and the Judgment of 27 August 1953 in the Rights of Nationals
of the United States of America in Morocco case.
---------------------------------------------------------------------------------------------------------------------
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 delimitation FN2.
---------------------------------------------------------------------------------------------------------------------
FN2
Counter-Memorial of the Netherlands and Denmark, Annex 10. Exposé des motifs
of the German Bill on the Provisional Determination of Rights over the
Continental Shelf.
---------------------------------------------------------------------------------------------------------------------
***
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. [p 132]
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 law FN1
---------------------------------------------------------------------------------------------------------------------
FN1
S. Krylov, in his dissenting opinion in the case of Reparation for Injuries
Suffered in the Service of the United Nations, decided on 11 April 1949,
omits the word "civilized" when referring to the general principles of law.
He does not however give reasons for this omission. But in his course of
lectures at The Hague Academy of International Law in 1947, he raised his
voice against the arbitrary treatment given to the so-called native States
(Recueil des Cours, 1947, I. p. 449).
---------------------------------------------------------------------------------------------------------------------
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 [p 133] 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, Bandyo-padhyoy, 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 foreigners FN1, or to its power to ensure the
protection of the fundamental rights of the human person FN2, it is
impossible to avoid the thought that the colonial regime should not have
been excluded from the factors of assessment belonging to one or other of
these criteria, since the colonized were foreigners vis-a-vis the
colonizers, and had been deprived of certain of their fundamental rights
FN3.
---------------------------------------------------------------------------------------------------------------------
FN1
Westlake and R. Y. Jennings.
FN2 A. Favre.
FN3 W. Jenks recalls that at an earlier period, the Latin American writers
had had a similar reaction in face of the law of Europe (The Common Law of
Mankind, p. 74).
---------------------------------------------------------------------------------------------------------------------
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 [p 134] 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 it 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 analogy FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
See in particular the decisions of the Permanent Court of Arbitration of 11
November 1912 in the Russian Indemnity case and of 13 October 1922 in the
Norwegian Shipowners' Claim case.
---------------------------------------------------------------------------------------------------------------------
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 Justice FN2.
---------------------------------------------------------------------------------------------------------------------
FN2 Cf. W. Jenks, The Common Law of Mankind, p. 79.
---------------------------------------------------------------------------------------------------------------------
.
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—[p 135] 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 con-tinental
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 contra
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" FN1. 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 [p 136] 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.
---------------------------------------------------------------------------------------------------------------------
FN1
As was pointed out by the American-Norwegian Tribunal in 1922 in the
Norwegian Shipowners' Claim case.
---------------------------------------------------------------------------------------------------------------------
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
faute, 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 cause FN1, as well as good faith "which
is no more than a reflection of equity and which was born from equity FN 2".
---------------------------------------------------------------------------------------------------------------------
FN1
French case-law, which initialed the principle of non-misuse of right,
clearly drew inspiration from equity. See Judgment of the Cour de Cassation
of 18 January 1892 which refers to "the action . . . based on the principle
of equity which forbids enrichment at the expense of another".
The case-law of the Lebanon, before enrichissement sans cause appeared in
its new code of obligations, deduced the concept from the rules of equity of
Majallat el Ahkam. the Muslim code of civil law which was there in force.
FN2 Expression of K. Strupp. Course at The Hague Academy of International
Law, Recueil des Cours, 1930, Vol. III, p. 462.
Cf. M. P. Fabreguettes, La logique jiudiciaire. p. 399, who writes: "In a
higher legal sense, equity (from aequitas, from acquis, equal), is
distributive justice, which forbids any respecting of persons, or being
guided by reasons other than those of law."
Cf. also Ch. de Visscher, Theory and Reality in Public International Law
(trans. P. Corbett. Princeton, 1957), p. 357, who in turn stresses that "it
is significant that in the . . . cases in which members of the Court have
expressly invoked 'the general principles", they have clone so under cover
of some of the most elevated and most general categories of the legal order,
such as 'justice' or 'equity'."
See decision of 11 November 1912 of the Arbitral Tribunal in the Russian
Indemnity case, which refers to equity in order to assess the
responsibility of a State, and its implementation.
---------------------------------------------------------------------------------------------------------------------
***[p 137]
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 Paul FN1. 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 equitable FN2. 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 it FN3. 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 meta-juridical, become isolated
from international realities and their progressive institutions: ubi
societas. ibi jus.
---------------------------------------------------------------------------------------------------------------------
FN1
P. Roubier, former Director of the School of Law of Beirut, Théorie générale
du Droit, p. 129.
FN2 It should be recalled that Plato and Aristotle, who were so to speak
reason personified, offered justification for slavery, against all equity,
and it was not definitively condemned in the name of equality between man
and man until the coming of Christianity. Even then it was tolerated as
reasonable up to the French Revolution.
Let it not be overlooked also that colonialism, so inequitable as between
nations, was considered reasonable by great Western jurists right up to very
recent times. The same could be said of the social and economic inequalities
existing at all times and in all places.
Finally public feeling in many very developed countries still finds it
reasonable that there should be inequality between wife and husband in the
enjoyment or exercise of certain civic, civil or family rights.
FN3 N. Politis. in La morale internationale, p. 26, recalls the saying of
Cicero, quid leges sine moribus, and relates the moral basis of modern
international law back to Ulpian of Tyre, who was himself inspired, as P.
Roubier observes {ibid., p. 128, note I) by that other Phoenician, Zeno, the
founder of the stoic school, and his disciples Seneca and Marcus Aurelius.
p. 51 : honeste vivere, alterum non laedere, suum cuique tribuere.
---------------------------------------------------------------------------------------------------------------------
***[p138]
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 cases FN1. 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 his FN2, or as the art of
that which is good and equitable FN3, or whether the law should draw
inspiration from the idea of justice and tend to its realization FN4.
---------------------------------------------------------------------------------------------------------------------
FN1
Aristotle, Nicomachean Ethics, quoted by G. del Vecchio, Philosophic du
droit, p. 282. See also K. Strupp, Course at The Hague Academy of
International Law, Recueil des Cours, 1930, Vol. III, p. 462.
FN2 Ulpian: Justitia est constans et perpetua voluntas jus suum cuique
tribuendi.
FN3 Ulpian following Celsus: Jus est ars boni et aequi. Equity was in fact
no stranger to the jus civile: cf. P. Arminjon, B. Nolde and M. Wolff,
Traitéde droit compare, p. 528.
FN4 Since Accarias.
---------------------------------------------------------------------------------------------------------------------
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 parlies, 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 cases [FN5]. 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 Hudson [FN6]. 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 [p 139]
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.]
---------------------------------------------------------------------------------------------------------------------
[FN5]
The Award of 25 June 1914 by the arbitrator C. E. Lardy, in the dispute
concerning the boundaries in the Island of Timor, in which the arbitrator
was requested by the arbitration agreement to decide on the basis of the
treaties and the general principles of international law, stated as follows:
"If one takes the point of view of equity, which it is important not to lose
from view in international relations . . ."
[FN6] Judge Hudson said ". . . under Article 38 of the Statute, if not
independently of that article, the Court has some freedom to consider
principles of equity as part of the international law which it must apply".
---------------------------------------------------------------------------------------------------------------------
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 [FN1] in Muslim
law which is placed on the basis of equity (and more particularly on its
equivalent, equality [FN2]) by the Koran [FN3] and the teaching of the four
great jurisconsults of Islam condensed in the Shari'a [FN4], which
comprises, among the sources of law, the istihsan, which authorizes
equity-judg-ments; Chinese law, with its primacy for the moral law and the
common sense of equity, in harmony with the Marxist-Leninist philosophy
[FN5]; Soviet law, which quite clearly provides a place for considerations
of equity [FN6]; 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 [FN7]"; finally the
law of [p 140] the other Asian countries, and of the African countries, the
customs of which particularly urge thejudge not to diverge from equity FN1
and of which "the conciliating role and the equitable nature FN2" 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 conscience FN3; and in the former French possessions, jointly with the
law of Western Europe, steeped in Roman law.
---------------------------------------------------------------------------------------------------------------------
[FN1]
See K. Strupp, Course at The Hague Academy of International Law. Recueil des
Cours, 1930, Vol. III, p. 468.
[FN2] Equity, as a principle of equality already perceived by the
Phoenician-Roman jurisconsults, is to be found even in the terminology of
the law of Islam. English law in turn was to say that "Equality is equity".
[FN3] Among others, Sura IV, verse 61 and Sura V, verses 42 and 46: "If thou
judge, then judge with fairness and equity."
[FN4] See Majallat el Ahkam, Arts. 87 and 88, which implement the principle
of equality mentioned in the note above.
[FN5] Cf. Chan Nay Chow, La doctrine du droit international chez Confucius,
emphasizing the virtue of equity in the social, economic and judicial
field, as well as on the international level, pp. 50, 51, 55, 56 and 60. Cf.
also René David, Les grands systèmes de droit contemporain, pp. 534 and 540.
[FN6] René David, ibid., p. 122.
[FN7] Ibid., p. 152.
FN1 Cf. T. O. Elias, The Nature of African Customary Law, p. 272; and M.
Gluck-man, The Judicial Process Among the Barotse of Northern Rhodesia, pp.
202-206.
FN2 René David, Les grands systèmes de droit contemporain, p. 572.
FN3 Ibid., p. 568. This formula has been interpreted by English judges as
referring to the common 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 justice FN4.
---------------------------------------------------------------------------------------------------------------------
FN4
Cf. Sir Hersch Lauterpacht, The Development of International Law by the
International Court, p. 213: "Adjudication ex aequo et bono is a species of
legislative activity. It differs clearly from the application of rules of
equity in their wider sense. For inasmuch as these are identical with
principles of good faith, they form part of international law as, indeed, of
any system of law."
---------------------------------------------------------------------------------------------------------------------
***
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 principles [FN5]". 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 principles [FN6]. 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 justice [ FN7].
Finally, for the Iranian Empire, "if differences of opinion arise over the
[p 141] limits of the Iranian continental shelf, these differences shall be
solved in conformity with the rules of equity FN1". [English translation
from Reply, Annex, Section A. 16, p. 449. ]
---------------------------------------------------------------------------------------------------------------------
[FN5]
Proclamation of 28 September 1945.
[FN6] Royal pronouncement of 28 May 1949.
[FN7] Successive proclamations of 5, 8, 10, 12, 14, 16, 17 and 20 June 1949.
FN1 Decree of 10 May 1949 and Act of 19 June 1955.
---------------------------------------------------------------------------------------------------------------------
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 regime 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 [p 142]
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 coast FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 Report of the International Law Commission on the proceedings of its
eighth session, p. 24, commentary 1 on Article 72, which became Article 6.
---------------------------------------------------------------------------------------------------------------------
***
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 publicists FN2, 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 floor FN3.
---------------------------------------------------------------------------------------------------------------------
FN2
One might quote among others: B. S. Murty, in Manual of International Law,
edited by M. Sørensen, p. 691: "Equity, in the sense of general rules
dictated by fairness, impartiality and justice, may be said to form part of
international law, serving to temper the application of strict rules, and a
tribunal may include equity, in this sense, in the law it applies, even in
the absence of express authorization."
Ch. de Visscher, Theory and Reality in Public International Law (trans. P.
E. Cor-bett, Princeton, 1957), p. 336: "Equity can be something other than
an independent basis of decision, as when, in a decision which in other
respects is founded on positive law (infra legem), the judge chooses among
several possible interpretations of the rule the one which appears to him,
having regard to the particular circumstances of the case, most in harmony
with the demands of justice. . . . Clearly the requirement of special
agreement between the Parties does not refer to this neces-sary function of
equity."
FN3 Report of the Ad Hoc Committee to the General Assembly, pp. 18, 46-47,
63-64.
---------------------------------------------------------------------------------------------------------------------
International decisions have in turn had occasion to refer to the principle
of equity praeter legem FN4.
---------------------------------------------------------------------------------------------------------------------
FN4 The Anglo-Turkish Arbitral Tribunal, in the case of W. J. Armstrong &
Co. Ltd. v. Vickers Ltd. (1928) placed on the basis of rules of equity the
general principle of law, accepted by international law, forbidding unjust
enrichment.
The Franco-Venezuelan Mixed Commission, in the Frederick & Co. case (1902),
assimilating equity with equality under the inspiration of Roman law,
expressed itself as follows: "If the conditions on both sides are regarded
as producing an equilibrium, justice is done." This is also a concept of
Muslim law (supra, note 1. p. 136).
---------------------------------------------------------------------------------------------------------------------
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.
***[p143]
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 second FN1. 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.
---------------------------------------------------------------------------------------------------------------------
FN1
Memorial, para. 91, subject to the sector theory and its effect on the area.
Figure 2, p. 27. Figure 21, p. 85.
---------------------------------------------------------------------------------------------------------------------
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?[p144]
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 view FN1. The Court cannot do otherwise.
---------------------------------------------------------------------------------------------------------------------
FN1 Memorial, para. 70.
---------------------------------------------------------------------------------------------------------------------
***
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 [p.145]
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 applicable FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
Hearing of 8 November 1968.
---------------------------------------------------------------------------------------------------------------------
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 [p.146]
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 stated FN1 on
the principle affirmed by the International Court of Justice in its
Judg-ment 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.
---------------------------------------------------------------------------------------------------------------------
FN1
Supra, para. 16.
---------------------------------------------------------------------------------------------------------------------
***
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 [p147] 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 delimi-tation 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.
*[p.148]
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 practice FN1 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.
---------------------------------------------------------------------------------------------------------------------
FN1
In particular the precedents mentioned in para. 26.
---------------------------------------------------------------------------------------------------------------------
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
[p.149] 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 mentioned FN1, 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.
---------------------------------------------------------------------------------------------------------------------
FN1
Supra, para. 43.
---------------------------------------------------------------------------------------------------------------------
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 stated
FN2. 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.
---------------------------------------------------------------------------------------------------------------------
FN2
Supra, para. 46.
---------------------------------------------------------------------------------------------------------------------
*
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 [p.150] 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 shelf FN1, it is this front which forms the basis of the shelf
extending under the high seas.
---------------------------------------------------------------------------------------------------------------------
FN1
Supra, para. 15.
---------------------------------------------------------------------------------------------------------------------
An attempt has been made to justify the contiguity criterion and thus the
equidistance line as an imperative rule of inter national 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 State FN2. 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.
---------------------------------------------------------------------------------------------------------------------
FN2
Address of 31 October 1968 on behalf of the Netherlands.
---------------------------------------------------------------------------------------------------------------------
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 [p.151]
jagged and indented nature of the two coasts, and the economic factor which
is present in both cases FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
Article 4 of the Geneva Convention on the Territorial Sea, which concerns
straight baselines, is based upon economic interests, which are even more
prominent in the case of the continental shelf. Cf. L. Cavaré, Droit
international public, Vol. I, p. 231.
---------------------------------------------------------------------------------------------------------------------
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 fir-ma 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 indentations FN2 and troughs FN3
forming interruptions in the bed of the continental shelf.
---------------------------------------------------------------------------------------------------------------------
FN2
Geneva Conference, Prep, docs., p. 44, para. 37.
FN3 R. Young, cited by L. Cavaré, Droit international public, Vol. II, p.
235.
---------------------------------------------------------------------------------------------------------------------
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 regime 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 [p.152]
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 solution FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
Reply, paras. 49, 65-67, 71, 74-76.
---------------------------------------------------------------------------------------------------------------------
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 inter section 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
[p.153]
[Map]
[p.154]
Dissenting opinion of vice-president Koretsky
To my great regret, I am unable to concur in the Court's Judgment, for the
reasons which I state below.
***
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.
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 [p155] 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.
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.
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.
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.
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
[p156]
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).
***
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 1 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.
Contemporary international law has developed not only quantitatively but
more especially qualitatively.
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 Com-mission,
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 International 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.
Where it used to be considered indispensable, for determining certain
[p.157] 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.
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.
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.
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 Regime of the High Seas, ST/LEG/ SER.B/1).
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 [p158] 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.
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).
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 R!!!egime 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). [p159]
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 1 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.
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.
In relation to a contiguous zone the coastal State has certain rights in
connection with a delimited maritime area.
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 airspace
above these waters".
Thus, there has occurred some kind of bifurcation of the legal regimes 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 [p.160] terrestre") FN1. 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.
---------------------------------------------------------------------------------------------------------------------
FN1
Cf. Grisbadarna award: "the fundamental principles of the law of nations,
both ancient and modern, according to which the maritime territory is
essentially an appurtenance of a land territory" [translation by the
Registry]. (U.N.R.I.A.A., XI, p. 159.)
---------------------------------------------------------------------------------------------------------------------
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).
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 Francois, 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).
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 [p.161]
Shelf—formulated very similar and, in substance, even identical principles
and rules for the delimitation of both the territorial sea and the
continental shelf FN1. 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).
---------------------------------------------------------------------------------------------------------------------
FN1
It may also be noted that the delegate of the Federal Republic of Germany to
the Geneva Conference of 1958, Professor Munch, declared that he was in
agreement with the wording of Article 6, paragraphs 1 and 2, "subject to an
interpretation of the words 'special circumstances' as meaning that any
exceptional delimitation of the territorial waters would affect the
delimitation of the continental shelf" (U.N. Conference on the Law of the
Sea, Official Records, VI, 4th Committee, p. 98).
---------------------------------------------------------------------------------------------------------------------
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.
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.
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 [p162] 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.
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.
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.
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 [p163]
***
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.
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 1 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.
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.
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 [p164] in the actual
drawing of the line but without, of course, substituting an alternative
basis of delimitation 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).
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 equidistance FN1. 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).
---------------------------------------------------------------------------------------------------------------------
FN1
It is worthy of note that, at the conference on the Law of the Sea, the
Delegation of Yugoslavia proposed to delete from Article 72 (now Article 6)
the words "and unless another boundary line is justified by special
circumstances" (A/CONF. 13/42, p. 130) and the Delegation of the United
Kingdom, in its amended draft of the same Article, omitted the same words
(ibid., p. 134).
---------------------------------------------------------------------------------------------------------------------
***
What are, in effect, the principles and what has been the practice, with
regard to the delimitation of the territorial sea?
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.
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.
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, per [p.165] pendiculars,
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 equidistance FN1, 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.
---------------------------------------------------------------------------------------------------------------------
FN1
A typical attitude is expressed in the following extract from a letter
addressed by the French Ministry of Foreign Affairs to the International Law
Commission on 2 August 1953: "If. . . the International Law Commission were
to deem indispensable a choice between the three definitions" it has
"proposed, the French Government considers that delimitation by means of a
line every point of which is equidistant from the nearest points on the
coastline of each of the two adjacent States should be chosen, as being
likely to yield the best solution in the greatest number of cases"
[translation by the Registry] (Doc. A/CN./4'71/Add.2; I.L.C. Yearbook, 1953,
Vol. II, pp. 88 f., in fine).
---------------------------------------------------------------------------------------------------------------------
***
The Judgment (paragraphs 88 if.) 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.[p.166]
This negative fact seems to indicate that States are somewhat averse to
resorting to this procedure FN1 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.
---------------------------------------------------------------------------------------------------------------------
FN1 It may be recalled as an example that, in its letter to the
International Law Commission concerning the delimitation of the territorial
sea, the Government of the United Kingdom stated: "4. Where the adjacent
States are unable to reach agreement . . . Her Majesty's Government consider
that as a rule recourse should be had to judicial settlement. Such
settlement should be according to international law rather than ex aequo et
bono" (I.L.C. Yearbook, 1953, Vol. II, p. 85).
---------------------------------------------------------------------------------------------------------------------
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) FN2. 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).
---------------------------------------------------------------------------------------------------------------------
FN2
Professor Max Huber understands it "as a basis independent of law"
[translation by the Registry] (Annuaire de l'Institut de droit
international, 1934, p. 233).
---------------------------------------------------------------------------------------------------------------------
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.
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 [p167]
that the boundaries "will be determined in accordance with equitable
principles by Our Government FN1 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 FN1 with the neighbouring States" (U.N. Legislative
Series, Laws and Regulations on the Regime of the High Seas, ST/LEG/SER.
B/l).
---------------------------------------------------------------------------------------------------------------------
FN1
Italics supplied.
---------------------------------------------------------------------------------------------------------------------
***
The Court, rejecting the application of the equidistance method FN2 in these
cases and observing that there is no other single method of delimitation
the use of which is in all circumstances obligatory FN3, has found that
"delimitation is to be effected by agreement in accordance with equitable
principles" (Judgment, paragraph 101 (C) (1)) 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).
---------------------------------------------------------------------------------------------------------------------
FN2
The Convention speaks of the equidistance principle but the Court uses the
term "equidistance method", thereby reducing the significance of the
principle to that of a technical means.
FN3 It may be noted that the Court was asked to indicate not a method of
delimitation which could be applied in any or all circumstances, but the
principles and rules of international law which are applicable in the
circumstances that were indicated in these cases and referred to in the
Special Agreements.
---------------------------------------------------------------------------------------------------------------------
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.
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 [p.168] 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 questions FN1."
---------------------------------------------------------------------------------------------------------------------
FN1
See Proceedings of The Hague Peace Conferences. Conference of 1907, Vol. II,
New York, 1921, p. 319, where the text is given more fully.
---------------------------------------------------------------------------------------------------------------------
***
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, equally FN2". 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) FN3.
---------------------------------------------------------------------------------------------------------------------
FN2
Italics supplied.
FN3 It may be appropriate to mention here that, when analysing the former
Judgments of the Court on "Contestations relatives au tracé de la
frontière", Professor Suzanne Bastid has noted that in them "can be
discerned certain tendencies showing that there is a distinction to be made
between conflicts concerning frontiers and those to do with the attribution
of a territory" [translation by the Registry] (Recueil des Cours de
l'Académie de droit international, Vol. 107 (1962), p. 452).
---------------------------------------------------------------------------------------------------------------------
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.
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 (EmsDollard 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.).[p.169]
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.
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.
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).
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.
***
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.
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
prin-[p.170] ciples 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.
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. [p.197]
Dissenting Opinion of Judge Morelli
[Translation ]
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 [p.198]
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 [p199] 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
[p.200] whole constitutes or constituted something held in common, such a
regime 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 [p.201] 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 [p202]
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
[p203] 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 1 consider that on this
parti-[p.204] cular 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
[p.205] 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 [p.206]
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 [p.207] 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 con-tinental 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. [p.208]
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 con-[p.209] sequence 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 novo 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.
***[p.210]
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-a-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 [p.211] 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 [p.212] 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
[p.213]
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
[p.214] 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 1 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.[p.215]
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 [p.216] 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.[p217]
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. [p171]
Dissenting Opinion of Judge Tanaka
I
In spite of my great respect for the Court, 1 am unable, to my deep regret,
to share the views of the Court concerning some important points in the
operative part as well as in the reasons of the Judgment.
What is requested of the International Court of Justice by virtue of the two
Special Agreements (Article 1, paragraph 1) is to give a decision on the
question:
"What principles and rules of international law are applicable to the
delimitation as between the Partie of the areas of the continental shelf in
the North Sea which appertain to each of them beyond the partial
[boundaries] determined [in the previous agreements concluded by them
namely: the Convention of 9 June 1965 between the Kingdom of Denmark and the
Federal Republic of Germany and the Convention of 1 December 1964 between
the Federal Republic of Germany and the Kingdom of the Netherlands]?"
From the Special Agreements it is clear that what is requested constitutes
the "principles and rules of international law" applicable to the said
delimitation of the continental shelf and nothing else.
The cases before the Court are concerned with disputes relative to the
delimitation of the continental shelf in the North Sea areas. The fact that
such disputes arose and the decision of the Court was asked indicates the
following fact. An originally geological and geographical concept, i.e.,
that of the continental shelf, by reason of its intrinsic economic interests
(natural resources, particularly minerals such as oil, gas from the subsoil
of the seabed) which have become susceptible of exploration and
exploitation as the result of recent technological development, has been
vested with legal interest and presents itself as a subject-matter of rights
and duties subject to the rule of law and constituting an institution
belonging to international law.
It is beyond the slightest doubt that this original field of international
maritime law involves many new and difficult questions. The fact that after
the "Truman Proclamation" of September 1945 there followed a succession of
unilateral declarations, decrees and other acts issued by coastal States
declaring their exclusive sovereign rights over the adjacent continental
shelves was without the slightest doubt a main motive for starting the
legislative work of the Geneva Conference on the Continental [p.172]
Shelf prepared by the International Law Commission of the United Nations. By
the Geneva Convention of 1958, the system of the continental shelf
definitively acquired the status of a legal institution.
As to the idea and the fundamental principle which govern the continental
shelf as a legal institution, it is evidently the realization of harmony
between the two interests: the one the interest of individual coastal States
for exploration of their continental shelves and exploitation of natural
resources; the other the interest of the international community,
particularly the safeguarding of the freedom of the high seas.
In this context one point must be emphasized, namely that the institution
of the continental shelf adopts as fundamental principles that the coastal
State exercises over the continental shelf sovereign rights for the purpose
of exploring it and exploiting its natural resources, that these rights are
exclusive and that these rights do not depend on occupation, effective or
notional, or on any express proclamation (Article 2, paragraphs 1-3, of the
Geneva Convention). It must be noted that this fundamental concept of the
continental shelf, being established as customary international law,
exercises an important influence upon the decision of the question of
delimitation of the continental shelf, as we shall see below.
The necessity for legal regulation on the matter of delimitation of the
continental shelf between coastal States can naturally be understood from
the fact that boundary disputes between them as a result of extending their
jurisdiction over areas of the continental shelf may involve a serious
threat to international peace, as in case of disputes over land boundaries.
On the contrary, peaceful co-existence of well-ordered activities of
exploration and exploitation of the seabed and subsoil natural resources by
the States concerned would enormously contribute to the welfare of mankind.
From the above-mentioned viewpoint it becomes clear that the matter
concerning the delimitation of the same continental shelf between two or
more opposite States or between two adjacent States plays a very important
role—the question which is provided in Article 6, paragraphs 1 and 2, of the
said Convention. In the present cases this question is involved. In respect
of the delimitation of the continental shelf, as well as of the continental
shelf as a whole, rule of law and not anarchy must prevail.
II
On the matter of the delimitation, the opinions of the Parties, one the
Federal Republic of Germany and the other the Kingdoms of Denmark and the
Netherlands, are radically opposed. The former denies the application of
equidistance to the present cases; the latter approves its [p.173]
application. The core of the present cases constitutes the question of the
opposability or non-opposability to the Federal Republic of Article 6,
paragraph 2, which provides for the principle of equidistance.
It is evident that the 1958 Convention on the Continental Shelf,
particularly its Article 6, is not opposable as such to the Federal Republic
for the reason of absence of her consent. It is true that she positively
participated in the work of the Convention and became one of the signatory
States on 30 October 1958, but she did not ratify the Convention. This lack
of ratification is the reason for the denial of her contractual obligation
regarding the Convention as a whole or in part, and therefore makes it
unopposable to her. Although the Geneva Convention of 1958, as a kind of
"law-making" treaty, has a great number of States parties, still it cannot
bind outsiders to the Convention, among which the Federal Republic belongs.
The fact that the two Kingdoms on the contrary ratified the Convention does
not alter this unopposability vis-à-vis the Federal Republic. This is not
contested by the two Governments. Therefore it seems unnecessary to deal
with this matter further. Still I consider it to have some significance in
relation to other contexts.
The following circumstances, namely in addition to the afore-mentioned
German positive participation in the work of the Convention and its
signature, are to be noted:
The Government Proclamation of 20 January 1964, the expose des motifs to the
Bill for the Provisional Determination of Rights over the Continental Shelf
of 15 May 1964, and the conclusion of the two "partial boundary" treaties
between the Federal Republic and the Netherlands of 1 December 1964 and
between the Federal Republic and Denmark of 9 June 1965; in particular, the
Proclamation of 20 January 1964 is extremely significant in the sense that
the Federal Republic expressly recognized the Geneva Convention as the basis
for the exclusive sovereign rights on her continental shelf. Furthermore,
the conclusion of the last two treaties regarding the delimitation of the
continental shelf, seems to approve the provision of Article 6, paragraph 2,
of the Geneva Convention.
These circumstances, operating as a whole, contribute to justification of
the binding power of the equidistance principle provided in Article 6,
paragraph 2, vis-a-vis the Federal Republic should she be bound by a ground
other than contractual obligation, namely by the customary law character of
the Convention.
As to whether a situation of estoppel exists or not, I hesitate to
recognize this latter because there is no evidence that Denmark and the
Netherlands were caused to change position or suffer some prejudice in
[p.174] reliance on the conduct of the Federal Republic, as is properly
stated by the Court's Judgment.
If, in the first place, the Geneva Convention, including Article 6,
paragraph 2, is as such not opposable to the Federal Republic, the Court, in
the second place, is confronted with the task of examining the contention
put forward by the two Kingdoms as to the existence of the customary law
character (Article 38, paragraph 1 (b), of the Statute) of the Convention as
a whole or the equidistance principle of Article 6, paragraph 2, of the
Convention. If the customary law character of the Geneva Convention and the
principle of equidistance is established, the latter principle can be
applied to the present cases, and that will be the end of the matter.
The history of the continental shelf as a legal institution indicated by the
above-mentioned Truman Proclamation of 28 September 1945, does not appear to
be long enough to have enabled more or less complete customary international
law to have been formulated on this matter. The practical necessity of
regulating a great number of claims of coastal States on their adjacent
continental shelf so as to avoid a chaotic situation which may be caused by
competition and conflict among them, seemed to be a primary consideration of
the international community. In 1949 the International Law Commission,
representing the main legal systems of the world, took the initiative by
appointing the Committee of Experts for the question relating to the
territorial sea including the continental shelf. This Committee of Experts
terminated its Report, to which reference has been made above, in 1953.
Parallel with the efforts of the International Law Commission, various
governmental and non-governmental, as well as academic organizations and
institutions, contributed to promoting the legislative work on the
continental shelf by study, examination and preparation of drafts.
The efforts of the International Law Commission were crowned by the birth of
the Convention on the Continental Shelf adopted on 26 April 1958 by the
Geneva Conference which was attended by 86 delegations.
That 46 States have signed and 39 States ratified or acceded to the
Convention is already an important achievement towards the recognition of
customary international law on the matter of the continental shelf.
To decide whether the equidistance principle of Article 6, paragraph 2, of
the Convention can be recognized as customary international law, it is
necessary to observe State practice since the Geneva Convention of 1958. In
this respect it may be enough to indicate the following five Agreements as
examples of the application of the equidistance principle concerning the
North Sea continental shelf:
(a) United Kingdom-Norway of 10 March 1965;
(b) Netherlands-United Kingdom of 6 October 1965;
(c) Denmark-Norway of 8 December 1965; [p.175]
(d) Denmark-United Kingdom of 3 March 1966;
(e) Netherlands-Denmark of 31 March 1966.
I must also mention the two partial boundary treaties concluded by the
Federal Republic already indicated.
It must be noted that Norway, who is a party to two of these Agreements,
acted on the basis of the equidistance principle notwithstanding the fact
that she has not yet acceded to the Geneva Convention, that the Netherlands
adopted the equidistance principle in her Agreement with the United Kingdom
at a time when she had not yet ratified the Convention and that Belgium had
recently adopted the equidistance principle for the delimitation of her
continental shelf boundaries, although she is not a party to the Convention
(23 October 1967 "Projet de Loi", Art. 2).
It is not certain that before 1958 the equidistance principle existed as a
rule of customary international law, and was as such incorporated in Article
6, paragraph 2, of the Convention, but it is certain that equidistance in
its median line form has long been known in international law for drawing
the boundary lines in sea, lake or river, that, therefore, it is not the
simple invention of the experts of the International Law Commission and
that this rule has finally acquired the status of customary international
law accelerated by the legislative function of the Geneva Convention.
The formation of a customary law in a given society, be it municipal or
international, is a complex psychological and sociological process, and
therefore, it is not an easy matter to decide. The first factor of customary
law, which can be called its corpus, constitutes a usage or a continuous
repetition of the same kind of acts; in customary international law State
practice is required. It represents a quantitative factor of customary law.
The second factor of customary law, which can be called its animus,
constitutes opinio juris sive necessitatis by which a simple usage can be
transformed into a custom with the binding power. It represents a
qualitative factor of customary law.
To decide whether these two factors in the formative process of a customary
law exist or not, is a delicate and difficult matter. The repetition, the
number of examples of State practice, the duration of time required for the
generation of customary law cannot be mathematically and uniformly decided.
Each fact requires to be evaluated relatively according to the different
occasions and circumstances. Nor is the situation the same in different
fields of law such as family law, property law, commercial law,
constitutional law, etc. It cannot be denied that the question of repetition
is a matter of quantity; therefore there is no alternative to denying the
formation of customary law on the continental shelf in general and the
equidistance principle if this requirement of quantity is not fulfilled.
What I want to emphasize is that what is impor-[p.176]tant in the matter at
issue is not the number or figure of ratifications of and accessions to the
Convention or of examples of subsequent State practice, but the meaning
which they would imply in the particular circumstances. We cannot evaluate
the ratification of the Convention by a large maritime country or the State
practice represented by its concluding an agreement on the basis of the
equidistance principle, as having exactly the same importance as similar
acts by a land-locked country which possesses no particular interest in the
delimitation of the continental shelf.
Next, so far as the qualitative factor, namely opinio juris sive
necessitatis is concerned, it is extremely difficult to get evidence of its
existence in concrete cases. This factor, relating to internal motivation
and being of a psychological nature, cannot be ascertained very easily,
particularly when diverse legislative and executive organs of a government
participate in an internal process of decision-making in respect of
ratification or other State acts. There is no other way than to ascertain
the existence of opinio juris from the fact of the external existence of a
certain custom and its necessity felt in the international community, rather
than to seek evidence as to the subjective motives for each example of State
practice, which is something which is impossible of achievement.
Therefore, the two factors required for the formation of customary law on
matters relating to the delimitation of the continental shelf must not be
interpreted too rigidly. The appraisal of factors must be relative to the
circumstances and therefore elastic; it requires the teleological approach.
As stated above, the generation of customary law is a sociological process.
This process itself develops in a society and does not fail to reflect its
characteristic upon the manner of generation of customary law. This is the
question of the tempo which has to be considered.
Here can be enumerated some sociological factors which may be deemed to have
played a positive role in the speedy formation of customary international
law on the subject-matter of the continental shelf, including the principle
of equidistance.
First, the existence of the Geneva Convention itself plays an important role
in the process of the formation of a customary international law in respect
of the principle of equidistance. The Geneva Convention constitutes the
terminal point of the first stage in the development of law concerning the
continental shelf. It consolidated and systematized principles and rules on
this matter although its validity did not extend beyond the States parties
to the Convention. Furthermore, the Convention constitutes the starting
point of the second stage in the [p.177]
development of law concerning the continental shelf. It has without doubt
provided the necessary support and impetus for the growth of law on this
matter.
The coming into existence of the Geneva Convention itself would
psychologically and politically facilitate the adherence of non-party States
to the Convention or the introduction of the equidistance principle into
their practice.
The role played by the existence of a world-wide international organization
like the United Nations, its agency the International Law Commission, and
their activities generally do not fail to accelerate the rapid formation of
a customary law. It is similar to the way in which a customary commercial
law speedily evolves from a standard contract drafted by experts of business
circles to a universal commercial custom. The Geneva Convention of 1958 on
the Continental Shelf, first lex ex contractu among the States parties, has
been promoted by the subsequent practice of a number of other States through
agreements, unilateral acts and acquiescence to the law of the international
community which is nothing else but world law or universal law.
Secondly, the legal, scientific and technical, and less political character
of the Convention, and the fact that its birth is mainly due to the
activities of the International Law Commission composed of highly qualified
internationally well-known legal scholars representing the main legal
systems of the world in collaboration with a group of experts, would not
fail to exercise rapidly a positive influence for the formation of opinio
juris sive necessitatis in the international community.
Thirdly, the urgent necessity of avoiding international conflict and
disorder which may be feared to occur between coastal States in proportion
to the rapidly increasing economic necessity of the exploration and
exploitation of natural resources in the subsoil of submarine areas, has
become a matter of serious preoccupation not only to coastal States, but to
the whole international community in which consciousness of solidarity is
more than ever intensified.
Fourthly, it can be recognized that the speedy tempo of present
international life promoted by highly developed communication and
transportation had minimized the importance of the time factor and has made
possible the acceleration of the formation of customary international law.
What required a hundred years in former days now may require less than ten
years.
Fifthly, the circumstance that with regard to the continental shelf,
including the equidistance principle, there had been no legal system in
existence, either written or customary law, and that therefore a legal
vacuum had existed, has certainly facilitated the realization of the Geneva
Convention on the Continental Shelf and customary law on the[p.178]same
matter. Similar circumstances can be recognized in the fields of air law and
space law.
In short, the process of generation of a customary law is relative in its
manner according to the different fields of law, as I have indicated above.
The time factor, namely the duration of custom, is relative; the same with
factor of number, namely State practice. Not only must each factor
generating a customary law be appraised according to the occasion and
circumstances, but the formation as a whole must be considered as an organic
and dynamic process. We must not scrutinize formalistically the conditions
required for customary law and forget the social necessity, namely the
importance of the aims and purposes to be realized by the customary law in
question.
The attitude which one takes vis-à-vis customary international law has been
influenced by one's view on international law or legal philosophy in
general. Those who belong to the school of positivism and voluntarism wish
to seek the explanation of the binding power of international law in the
sovereign will of States, and consequently, their attitude in recognizing
the evidence of customary law is rigid and formalistic. On the other hand,
those who advocate the objective existence of law apart from the will of
States, are inclined to take a more liberal and elastic attitude in
recognizing the formation of a customary law attributing more importance to
the evaluation of the content of law than to the process of its formation. I
wish to share the latter view. The reason for that is derived from the
essence of law, namely that law, being an objective order vis-à-vis those
who are subject to it, and governing above them, does not constitute their
"auto-limitation" (Jellinek), even in the case of international law, in
which the sovereign will of States plays an extremely important role.
In this context, I venture to quote the statements of two eminent writers
which appear to be valuable for the affirmative conclusion on the formation
of customary international law concerning the matter of the continental
shelf.
J. L. Brierly, in The Law of Nations, 6th edition, 1963, page 62:
"The growth of a new custom is always a slow process, and the character of
international society makes it particularly slow in the international
sphere. The progress of the law therefore has come to be more and more bound
up with that of the law-making treaty. But it is possible even today for new
customs to develop and to win acceptance as law when the need is
sufficiently clear and urgent. A striking recent illustration of this is the
rapid development of the principle of sovereignty over the air."[p.179]
D. P. O'Connell, in International Law, I, 1965, pages 20-21:
"Much of the traditional discussion of customary law suffers from the
rigidity and narrow-mindedness of nineteenth-century positivism, which was
itself the product of a static conception of society. The emphasis that the
positivist places on the will of the State over-formalises the law and
obscures its basic evolutionary tendency. He looks to positive practice
without possessing the criteria for evaluating it, and hence is powerless to
explain the mystical process of lex ferenda, which he is compelled to
distinguish sharply, and improperly, from lex lata . . ."
III
In the event that the customary law character of the principle of
equidistance cannot be proved, there exists another reason which seems more
cogent for recognizing this character. That is the deduction of the
necessity of this principle from the fundamental concept of the continental
shelf.
The starting point is the concept of the continental shelf. This concept is
clearly expressed in Articles 1-3 of the Geneva Convention.
Before we examine this concept, we shall clarify its nature, namely its
customary law character.
There is no doubt that Articles 1-3, which constitute the fundamental
concept of the continental shelf, are mainly formulated on the basis of the
State practice established since President Truman's Proclamation of
September 1945, and that, accordingly, they have the character of customary
law. Therefore, even those States which have not ratified or acceded to the
Convention could not deny the validity of these provisions against them.
Denying the principles enunciated in Articles 1-3 would deprive the
non-contracting States of the basis of all rights over their continental
shelves.
The fundamental principle upon which the institution of the continental
shelf is based constitutes the recognition of the sovereign rights of the
coastal State for the purpose of its exploration and the exploitation of its
natural resources (Article 2, paragraph 1, of the Convention). These
sovereign rights are exclusive in the sense that if the coastal State does
not explore or exploit its natural resources, no one may undertake these
activities, or make a claim to the continental shelf, without the express
consent of the coastal State (Article 2, paragraph 2, of the Convention).
These rights of the coastal State do not depend on occupation, effective or
notional, or on any express proclamation (Article 2, paragraph 3, of the
Convention).
The fact that the coastal State exercises over the continental shelf
exclusive sovereign rights, and that these rights do not depend on
oc-[p.180] cupation or any express proclamation, explains eloquently the
legal status of the continental shelf as an institution. First, the
continental shelf does not constitute res nullius which is susceptible of
occupation by any State—not only an adjacent coastal State but any other
State. Next, the continental shelf does not constitute a res communis of the
coastal States which must be jointly exploited or divided by them. The
continental shelf belongs exclusively to the coastal State according to the
principle fixed by law which gives the definition of the continental shelf.
According to Article 1 of the Convention, the term "continental shelf" is
used as referring to the seabed and subsoil of the submarine areas adjacent
to the coast. By this provision the law prescribes the only condition for a
coastal State to be able to have sovereign rights over the continental
shelf. This condition is of a geographical nature; the existence of the
relationship of adjacency between the continental shelf and the coastal
State is required.
The criterion of adjacency—or proximity, propinquity, contiguity— seems a
most reasonable one if one adopts the principle of the sovereign rights of
the coastal State, excluding the regime of res nullius or res communis. The
idea that the continental shelf constitutes the natural continuation or
extension of the coastal State is most natural and reasonable from the
geographical and economic viewpoints.
The principle which governs the delimitation of the continental shelf and
which is provided for in Article 6 is the corollary of the concept declared
in Articles 1 and 2. The present cases are related to Article 6, paragraph
2. This stipulates:
"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 ter-ritorial sea of each State is measured."
The equidistance principle which is incorporated in Article 6, paragraph 2,
flows from the fundamental concept of the continental shelf as the logical
conclusion on the matter of the delimitation of the continental shelf. The
equidistance principle is integrated in the concept of the continental
shelf. The former is inherent in the latter, being inseparably connected
with it. Therefore, if the law of the continental shelf were devoid of the
provision concerning delimitation by means of the equidistance principle,
satisfactory functioning of the institution of the continental shelf could
not be expected.
The Federal Republic denies the opposability of the Geneva Convention as a
whole, and consequently denies the opposability of its part, namely Article
6, paragraph 2. However, the Federal Republic has not the slightest doubt
that she exercises sovereign rights over the continental shelf of the
disputed area. But on what title can she exercise such rights?[p.181]
There should be no other possibility of justification other than by
customary law on the matter of the continental shelf. And indeed she
recognizes the applicability of Articles 1-3 of the Geneva Convention
vis-a-vis herself on a customary law basis. Can the Federal Republic deny
the application of Article 6, paragraph 2, concerning the delimitation of
the continental shelf which she claims as her own? The answer is in the
negative.
The viewpoint of the Federal Republic is to consider the question of
delimitation separately from the fundamental concept of the continental
shelf. However, the rule with regard to delimitation by means of the
equidistance principle constitutes an integral part of the continental shelf
as a legal institution of teleological construction. For the existence of
the continental shelf as a legal institution presupposes delimitation
between the adjacent continental shelves of coastal States. The
delimitation itself is a logical consequence of the concept of the
continental shelf that coastal States exercise sovereign rights over their
own continental shelves. Next, the equidistance principle constitutes the
method which is the result of the principle of proximity or natural
continuation of land territory, which is inseparable from the concept of
continental shelf. Delimitation itself and delimitation by the equidistance
principle serve to realize the aims and purposes of the continental shelf as
a legal institution. The Federal Republic, in so far as she insists upon her
rights on the continental shelf, cannot deny the application of its
delimitation by means of the equidistance principle. As I have said above,
the equidistance principle provided for in Article 6, paragraph 2, of the
Convention, is inherent in the concept of the continental shelf, in the
sense that without this provision the institution as a whole cannot attain
its own end.
The doctrine that the equidistance principle is inherent in the institution
of the continental shelf would certainly make a highly controversial
impression. However, even if Article 6, paragraph 2, did not exist or is not
opposable to the Federal Republic, the interpretation of Articles 1-3 would
produce the same conclusion. Customary law, being vague and containing gaps
compared with written law, requires precision and completion about its
content. This task, in its nature being interpretative, would be incumbent
upon the Court.
The method of logical and teleological interpretation can be applied in the
case of customary law as in the case of written law. Even if the Federal
Republic recognizes the customary law character of only the fundamental
concept incorporated in Articles 1-3 of the Convention, and denies it in
respect of other matters, she cannot escape from the application of what is
derived as a logical conclusion from the fundamental concept,—a conclusion
which, in respect of the delimitation of the continental shelf, would reach
the same result as Article 6, paragraph 2, of the Convention.
***[p.182]
The Federal Republic, referring to the right of the States parties to the
Convention to make reservations to articles other than to Articles 1-3
(Article 12 of the Convention), argues in favour of the non-applicability a
fortiori of Article 6 to the Federal Republic, which is not a State party to
the Convention. This question has been very extensively discussed. However,
if a reservation were concerned with the equidistance principle, it would
not necessarily have a negative effect upon the formation of customary
international law, because in this case the reservation would in itself be
null and void as contrary to an essential principle of the continental shelf
institution which must be recognized as jus cogens. It is certain that this
institution cannot properly function without being completed by some method
of delimitation provided by law. It is obvious that a State party to the
Convention cannot exclude by reservation the application of the provision
for settlement by agreement, since this is required by general international
law, notwithstanding the fact that Article 12 of the Convention does not
expressly exclude Article 6, paragraphs 1 and 2, from the exercise of the
reservation faculty. The possibility of reservation could apply to the
application of the special-circumstances clause, but not to that of the
equidistance principle, which, as indicated above, constitutes an integral
part of the continental shelf regime. In short, a reservation to Article 6,
paragraph 2, so far as the application of the equidistance principle is
concerned, is not permissible, because it would produce a legal vacuum and
thus prevent normal functioning of the institution of the continental shelf.
The Danish and Netherlands Governments have sought to establish their claim
to apply the equidistance principle either by way of the applicability of
Article 6, paragraph 2, of the Convention, or by way of direct inference
from the fundamental concept of the continental shelf which is supposed to
be inherent in Articles 1 and 2 of the Convention.
For the reasons mentioned above, the contention of the Danish and
Netherlands Governments as to the customary law character of the
equidistance rule applicable to non-contracting States of the Convention,
including the Federal Republic, is well-founded.
The equidistance principle provides a method of delimiting the continental
shelf which must be deemed most practical and appropriate. Specifically,
concerning a boundary matter, it is desirable that the method be objective
and clear. This is the requirement from the standpoint of the international
community's need for certainty.
In this connection I would like to make some observations on the logical
relationship between law and technique for the purpose of considering the
nature of the equidistance rule.
We have before us a technical norm of a geometrical nature, which is called
the equidistance rule, and may serve a geographical purpose. This norm,
being in itself of a technical nature, constitutes a norm of [p.183]
expediency which is of an optional, i.e., not obligatory character, and the
non-observation of which does not produce any further effect than failure to
achieve the result it would have rendered possible. This technical norm of a
geometrical nature can be used as a method for delimiting the continental
shelf. The legislator, being aware of the utility of this method for legal
purposes, has adopted it as the content of a legal norm.
Thus the equidistance method as a simple technique is embodied in law,
whether in Article 6, paragraph 2, of the Geneva Convention or in
corresponding customary international law. By being submitted to a juridical
evaluation and invested with the character of a legal norm, it has acquired
an obligatory force which it did not have as a simple technical norm.
The incorporation of the equidistance rule as a geometrical technique into a
legal norm exemplifies an extremely widespread phenomenon which can be
observed in regard to several kinds of extra-legal, social and cultural
norms and in such fields as usage, ethics and technique which has drawn the
attention of Professor Gustav Radbruch, who characterizes it as the
investing of one and the same material with a dual axiological character
(Umkleidung desselben Materials mit doppelten Wertcharakter:
Rechtsphilosophie, 3rd ed., 1932, p. 43). He has also described the same
phenomenon as "naturalization"'. In the case of the equidistance principle,
a technical norm of geometrical nature, after being submitted to juridical
evaluation has become incorporated or naturalized in law as a legal norm
vested with obligatory force.
This distinction between the rule of equidistance as a mere technique and as
a norm of law is very important in relation to the correct discharge by the
Court of the task laid upon it by the Special Agreements.
In the present context, I would like to add that there is a wider
possibility of applying scientifico-technical methods to the delimitation
of territorial sea and continental shelf areas than in the case of
frontier-demarcation on land. This is because in the former the particular
and individual features in the historical, ethnological, social and cultural
sense, which are usually to be found in the latter, do not exist. Here
technique can have full play, as in the case of the delimitation and
division of newly discovered and uninhabited territories, which permit of
automatic demarcation by the drawing of geometrical lines.
Therefore technique, particularly geometrical technique, can have particular
importance for the delimitation of the territorial sea and continental
shelf. It is understandable that in the maritime field the relation between
law and techniques should be more intimate than in the field of the
delimitation of land territory, that elements of uniformity and abstraction
should be prevalent, and that the role of technique utilized by law should
be an outstanding one.[p.184]
In short, law can be more consistent with its idea of objectivity and
certainty in maritime international law than in other fields of law.
The following opinion of Lord McNair in the Fisheries case (I.C.J. Reports
1951, p. 161) may be appropriately cited in justification of the
applicability of the equidistance principle in the present cases:
"The method of delimiting territorial waters is an objective one and, while
the coastal State is free to make minor adjustments in its maritime frontier
when required in the interests of clarity and its practical object, it is
not authorized by the law to manipulate its maritime frontier in order to
give effect to its economic and other social interests. There is an
overwhelming consensus of opinion amongst maritime States to the effect that
the baseline of territorial waters, ... is a line which follows the
coastline along low-water mark and not a series of imaginary lines drawn by
the coastal State for the purpose of giving effect, even within reasonable
limits, to its economic and other social interests and to other subjective
factors."
IV
Article 6, paragraph 2, of the Geneva Convention provides:
"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."
This provision determines the application of the equidistance principle.
However, this application is not absolute and immediate. It presupposes the
existence of two negative conditions: namely the absence of agreement and
the absence of special circumstances. The one is of a procedural, the other
of a substantive nature.
The boundary of the continental shelf shall in the first place be
determined by agreement between the two States before recourse to other
means. The principle thus recognized by the said provision is fully in the
spirit of the Charter of the United Nations, Article 33 (1) of which lays
down that "the parties to any dispute . . . shall, first of all, seek a
solution by negotiation", it is also appropriate from the psychological and
political viewpoint. Besides, the validity of an agreement concerning
delimitation as between two States can be justified on the ground that the
interests involved are of a disposable nature between them.[p.185]
For the settlement of a dispute on delimitation, therefore, the r!!!egime of
the continental shelf requires, as a necessary step for the application of
the principle of equidistance, an agreement between the parties to the
dispute. This agreement must be preceded by negotiations.
This requirement is evident. If we adhere too closely to the wording of the
Article, the conclusion would be that the simple fact of the nonexistence
of agreement would always authorize the application of the equidistance
principle. But this mere parsing of the words is surely insufficient to
elicit the real meaning of the provision. It is a precondition that genuine
negotiations must have taken place and that, notwithstanding, no agreement
was reached.
Regarding the present cases, no difference of view appears to exist
concerning the above-mentioned interpretation of the phrase "in the absence
of agreement" and the prior holding of effective negotiation between the
States concerned.
The second condition for the application of the equidistance principle is
the absence of special circumstances justifying another boundary line.
The raison d'!!!etre of this provision is that the mechanical application of
the equidistance principle would sometimes produce an unpalatable result for
a State concerned. Hence the necessity of supplementing the prescription of
the equidistance principle with a clause that provides for special
circumstances and constitutes an exception to the main principle of
equidistance.
It is argued on behalf of the Federal Republic that the
special-circumstances clause does not constitute an exception to the
principle of equidistance, but that these two rules are valid on an equal
footing, so that the equidistance principle has no priority over the
special-circumstances clause. However, it may be submitted that it could not
have been the intention of the legislator to leave the matter in a legal
vacuum, to be decided by the nebulous criteria of justice and equitableness,
but that, to ensure certainty and stability, he would have prescribed some
precise rule to be applied in principle for so long as the existence of
exceptional circumstances did not exclude its application.
It follows from the foregoing that the condition of the non-existence of
special circumstances for the application of the equidistance principle has
quite a different significance from that of the condition of the absence of
agreement. The latter condition is a sine qua non for the application;
therefore the absence of agreement despite genuine negotiations must be
proved by the party wanting to rely on the equidistance principle; it is
not, on the contrary, necessary that such party prove the former condition,
namely the non-existence of special circumstances, because the equidistance
principle is available to immediately and automatically fill the gap
produced by the absence of agreement.
From what is stated above, the limit and scope of the application of the
special-circumstances clause should be apparent. The Federal
Republic,[p.186] minimizing the significance of the equidistance principle,
advocates a broad interpretation of this clause, covering the case where a
so-called "macrogeographical configuration would give rise, on the
equidistance basis, to an unjust and inequitable apportionment. On the other
hand, it is argued on behalf of the two Kingdoms that the application of
this clause should be limited to such cases as the existence of
insignificant islands, promontories, etc., which should be ignored in
drawing the equidistance line. This view seems well-founded. The clause
does not constitute an independent principle which can replace equidistance,
but it means the adaptation of this principle to concrete circumstances. If
for the foregoing reasons the exceptional nature of this clause is admitted,
the logical consequence would be its strict interpretation. Exceptiones sunt
strictissimae interpretationis. Accordingly, the configuration of the
German coastline which by application of the two equidistance lines would
produce unsatisfactory consequences for the Federal Republic, cannot be
recognized as special circumstances within the meaning of Article 6,
paragraph 2, of the Convention.
It is maintained on behalf of the Federal Republic, from the viewpoint of
just and equitable apportionment on which her arguments are based, that the
special circumstances clause constitutes an expression of the just and
equitable principle, and it is sought to deny the relationship of major
principle and exception existing between the equidistance principle and the
special circumstances clause.
It is certain that the equidistance principle, being of a technical nature,
does not possess in itself a moral qualification such as justness or
equita-bleness. However, when this principle was incorporated in the
Convention as a legal norm, it must have been the intention of the
legislator that in ordinary cases the automatic application of this
principle would bring a just and equitable result. Accordingly, it would not
be very far from the truth if we say that the consideration of just and
equitable apportionment is inherent in the equidistance principle. But this
does not mean that there is no need of an exception which constitutes the
special circumstances clause.
The special circumstances clause presents itself as a manifestation of the
same spirit of the main principle. This clause implies some degree of
correction or, as I have said above, adaptation intended to attain what is
really sought by the equidistance principle. The special circumstances
clause, therefore, does not abolish or overrule the main principle, but is
intended to make its functioning more perfect.
In short, the special circumstances clause in Article 6, paragraph 2, second
sentence, does not signify an independent principle which may compete with
the equidistance principle on an equal footing, but constitutes an exception
recognized in concrete cases to correct the possible harsh effect which may
be produced by the automatic application of the equidistance method. This
conclusion is clear from the wording of Article 6,[p.187] paragraph 2,
second sentence which provides ". . . and unless another line is justified
by special circumstances". [Italics added.] This only means correction in
special, individual cases by drawing another line and not the substitution
of another principle in place of the equidistance principle.
V
If what has been said above is correct, and the equidistance principle is,
on a customary law basis, binding vis-a-vis the Federal Republic, this is
the end of the matter and there would be no need to examine certain other
questions which were energetically discussed during the course of the
written and oral proceedings. Among these questions, two must be considered.
The first question is concerned with the alternatives of delimitation and
just and equitable apportionment or share. The second question is concerned
with the indivisibility of the two cases before the Court and the combined
effect of the two Danish-German and German-Netherlands boundary lines.
Although to answer these questions is not absolutely necessary for the
purpose of deciding the present cases, I consider it to be significant to
deal with them, because they are fundamentally related with the German
contention that the application of the equidistance principle should be
replaced by just and equitable apportionment in the present cases and
therefore their consideration assists in the understanding of the intrinsic
value of the equidistance principle.
First, we shall consider the question of whether the present cases are
concerned with the question of delimitation or that of just and equitable
apportionment.
The two Kingdoms take their stand on delimitation by the equidistance
principle. The Government of the Federal Republic on the other hand,
advocates the principle of just and equitable apportionment.
As we have seen above, delimitation by the equidistance principle
constitutes a logical conclusion derived from the fundamental concept of the
continental shelf provided in Articles 1-3 of the Geneva Convention. It is
aimed at the delimitation, namely the drawing of a boundary line, between
the continental shelves already belonging to two States, and not to
division.
It can be said that delimitation constitutes an act of a bilateral nature.
If more than two States are interested in the same continental shelf and
participate in the common negotiation, the solution must be not of a
multilateral nature but of a bilateral nature, namely a combination of
bilateral relationships.
Consequently, the delimitation is individualistic in the sense that it is
made between two parties without regard to a third party. If it is carried
out by the application of the equidistance principle, delimitation would be
effected in an automatic and neutral way in so far as special circumstances
do not exist.[p.188]
On the other hand, the alleged principle of just and equitable
apportionment which is contended for on behalf of the Federal Republic
seems to be collectivistic. It implies the concept that delimitation is not
demarcation of two sovereign spheres already belonging to two different
States, but an act of division, or sharing among more than two States of res
nullius or res communis. Therefore, the concept of apportionment is
necessarily constitutive and multilateral. It requires some criteria for the
purpose of the apportionment of the continental shelf among the States
concerned. It can be said abstractly that the apportionment should be just
and equitable; however, it is not easy to demonstrate in what way
apportionment is, under given circumstances, in conformity with justice and
equitableness.
That the present cases are not concerned with the apportionment of the
continental shelf but its delimitation, is derived from the fundamental
concept of the continental shelf. Besides, the Special Agreements request
from the Court a decision on the principles and rules of international law
applicable to delimitation and not to apportionment.
The Judgment of the Court is right in rejecting the argument of the Federal
Republic which maintains the viewpoint of apportionment and not
delimitation.
It is to be noted that the Federal Republic complains of the unjust and
inequitable consequences of delimitation by the equidistance principle
applied to the present cases; she does not limit herself to the correction
of the alleged injustice and inequitableness resulting from such
delimitation, but puts forward a quite new claim for just and equitable
apportionment, which belongs to an entirely different concept from
delimitation, as I have indicated above.
First, it is necessary to examine whether the application of the
equidistance principle to the present cases would really produce injustice
and inequitableness at the expense of the Federal Republic, as she argues.
What are the reasons why the application of the equidistance principle would
result in an inequitable effect on the German part in the delimitation of
the continental shelf in the North Sea and why is the Federal Republic
opposing the application of this principle to the present cases?
The reasons may be summarized as follows:
First: The German part of the continental shelf would be reduced, by the
effect of the two equidistance lines, to a small fraction of the whole North
Sea area, not corresponding to the extent of its contact with the North Sea
(Memorial, p. 73, figure 18).
Secondly: The German part would extend only half-way to the centre of the
North Sea, where the parts of Great Britain, Norway, Denmark and the
Netherlands meet (Reply, p. 430, figure 5).
Thirdly: The area of the German part compared with the Danish or the
Netherlands part would amount only to roughly 40 per cent, of the area of
Denmark's or the Netherlands' part respectively. This would be [p.189] out
of proportion to the breadth of their respective coastal front facing the
North Sea (Hearing of 23 October 1968). The shares of the Federal Republic,
Denmark and the Netherlands would be in the ratio 6:9:9 respectively if they
are measured by the breadth of contact of the coast with the sea—the
country's coastal frontage (Memorial, para. 78, p. 77).
Are these reasons put forward on behalf of the Federal Republic
well-founded?
1 consider that the German contention is a simple assertion without
foundation because the German part constitutes a consequence of the natural
configuration (concavity) of the coastline, namely the rectangular bend in
the Danish-German-Netherlands coastline that causes both equidistance lines
to meet before the German coast thereby limiting the German share.
Furthermore, such a geographical configuration cannot be considered as
causing this case to constitute an example of the application of the
special-circumstances clause provided in Article 6. paragraph 2, of the
Convention.
Examples are not lacking of a large State, because of being given too small
a window on the open sea as a result of a special geographic configuration,
getting a very small portion of the continental shelf quite disproportionate
to its large land territory (for instance, Syria, Congo, Guatemala,
Romania). (Sketch map E, submitted by the Agent for Denmark, Hearing of 7
November 1968.)
Moreover, the alleged proportionate smallness of the German part compared
with the Danish or the Netherlands part is not to be considered as the
result of the two equidistance lines only, but is caused by other factors:
relations on the one hand between Denmark and Norway (Agreement of 8
December 1965), and on the other hand between the Netherlands, Belgium
(Projet de Loi of 23 October 1967, Article 2 determining Belgium's boundary
with the United Kingdon and France and the Netherlands), and the United
Kingdom (Agreement of 6 October 1965). The treaties on the delimitation of
the continental shelf between these States are not concerned with the
present cases. Accordingly what seems to make the Danish and the Netherlands
parts bigger in comparison with the German part largely comes from
elsewhere, not at the cost of German sacrifice.
For the above-indicated reasons, the contention on behalf of the Federal
Republic that the application of the equidistance principle to the
delimitation of the continental shelf in the present cases produces
injustice and inequitableness, is not, I consider, well-founded.
The Federal Republic however, on the hypothesis that delimitation on the
basis of the equidistance principle is unjust and inequitable, put forward a
contention for the replacement of this principle. This is the idea of just
and equitable apportionment or sharing.[p.190]
It is not clear whether the Federal Republic presses this idea consistently
or whether she would be satisfied simply to replace the equidistance
principle by some other methods. At any rate, she proposes first the
so-called coastal frontage, namely a straight baseline between the extreme
points at either end of the coast concerned, taking into account the special
configuration of the German coast. Then the sector principle is proposed in
consideration of the particularity of the North Sea.
It seems that these proposals are intended indirectly or directly to realize
the principle of just and equitable apportionment. However, so far as the
coastal frontage is concerned, this imaginary line cannot be recognized as a
basis for the delimitation of the continental shelf of the States concerned,
the sea area being unable to be treated identically with a solid land-mass
from the concept of the continental shelf, namely the natural prolongation
or continuation of the land territory of the coastal State. So far as the
sector principle is concerned, this idea seems directly derived from the
principle of just and equitable apportionment, and involves the
re-examination and rewriting of boundary agreements on the continental shelf
of the North Sea, not only between the States parties to the present cases
but between them and third States. Such consequences cannot be tolerated.
The standpoint which conceives the delimitation of the continental shelf as
a bilateral relationship independent of the relationship with a third State
and recognizes the effect thereof, may certainly be exposed to the criticism
that it would result in prior in tempore, potior in jure. Of course every
agreement between States on boundary matters must be in conformity with
international law, therefore it cannot infringe the rights of a third party.
However, since boundary demarcation of the continental shelf can be made by
bilateral agreement, there is no reason to deny that the agreements
concluded between Denmark or the Netherlands and a third State, or between
third States on matters of delimitation of the continental shelf in the
North Sea should be prima facie valid erga omnes. For the sake of the
security of the international legal order, the situation must be avoided
whereby the validity of an earlier agreement might be questioned because it
would produce an unsatisfactory effect from the point of view of a third
party effecting a subsequent act. Such unsatisfactory effect must be
tolerated so far as the present system of delimitation of the continental
shelf is based on the principle of the priority of agreement by negotiations
on this matter (Article 6, paragraphs 1 and 2).
In the event of the principle of just and equitable apportionment instead
of the delimitation by the equidistance principle being applied, what would
be the criteria for dividing the continental shelf among the coastal States
of the North Sea? Besides the above-mentioned principles of the coastal
frontage and sector many other factors could enter into consideration, for
instance, length of the coastline, continuation of the land frontier,
vertical line drawn on the general direction of the coastline[p.191]
proportion of size of land territories of the States concerned, etc. Finally
the distribution of subsoil natural resources and the unity of the deposit
might also become an important factor for consideration. The
reconsideration and rewriting of the existing continental shelf boundary
lines between the North Sea States are a very complicated matter. It is the
same with the three States Parties to the present cases. Consequently, the
application of the principle of equidistance can be highly appreciated even
from the standpoint of its negative function, namely the avoidance of
complications which might be produced by the introduction of the idea of
apportionment.
For the above-mentioned reasons, the German contention that the delimitation
of the continental shelf between the Parties in the North Sea should be
governed by the principle of just and equitable apportionment is not
well-founded.
From what is said above, the following questions, which presuppose the
application of just and equitable apportionment or at least the just and
equitable principle, are to be set aside from the examination as irrelevant
for the purpose of deciding the present cases:
(a) Questions which are concerned with the boundary agreements on the
continental shelf concluded between Denmark or the Netherlands and a third
State, i.e., the United Kingdom or Norway.
(b) Questions which are concerned with the validity of the boundary
agreement on the continental shelf between Denmark and the Netherlands.
(c) Questions which are concerned with the details of the definition of the
continental shelf, and its outer limits.
(d) Questions which are concerned with the particularity of the North Sea
continental shelf.
(e) Questions which are concerned with the nature and the location of
natural resources of the seabed and subsoil of the North Sea.
(f) Questions which are concerned with the joint exploitation of a deposit
situated on both sides of the boundary of the States concerned.
VI
The second question which is now to be considered is related to the
indivisibility of the two cases before the Court and the combined effect of
the two Danish-German and German-Netherlands boundary lines, or whether the
two cases should be considered separately.
First, it must be noted that this question is essentially linked with the
foregoing one, namely the question of delimitation as against just and
equitable apportionment. If the answer to the latter question is in favour
of delimitation, the answer to the former must be the recognition of the
divisibility of the two cases. If the answer to the latter is in favour of
the apportionment, the answer to the former must be the recognition of the
combined effect.[p.192]
It is evident that two cases are pending before the Court: one between
Denmark and the Federal Republic and the other between the Federal Republic
and the Netherlands. They are concerned with different areas of the North
Sea continental shelf. They were brought before the Court simultaneously but
by separate Special Agreements. However, the questions at issue in these
cases are legally identical, and Denmark and the Netherlands are in the same
interest. That is the reason that the Court ordered (26 April 1968), in
implementation of the tripartite Protocol, the joinder of the proceedings in
the two cases and the appointment of one Judge ad hoc by the Governments of
Denmark and of the Netherlands.
But the joinder of the two cases from the viewpoint of procedural expediency
does not imply that there is from the substantive viewpoint one case instead
of two cases. There is not one and the same case as occurred with the South
West Africa cases.
In reality the two cases with which the Court has to deal are concerned with
two different boundary lines, namely the Dano-German and the
German-Netherlands lines. The result of this is that, in dealing with the
merits of the two cases, the Court should not take into consideration the
simultaneous existence and mutual relationship or "combined effect" of the
two lines which from a procedural point of view does not exist.
Nevertheless, the arguments on behalf of the Federal Republic, which
constitute the contention of unjustness and inequitableness, are based on
the doctrine of the combined effect. What the Federal Republic complains of
is concerned with an area which is delimited by the two equidistance lines
and which seems to be unsatisfactory to her.
We must pay attention to the fact that there was no necessity for
simultaneous presentation of the two cases to the Court. If the two
Governments could have foreseen that their procedural co-operation might
produce, by reason of the "combined effect", an unfavourable result, they
would have preferred to adopt the procedure of postponing for some years the
presentation of one case to the Court or presenting the two cases with some
interval between them.
For the reasons mentioned above, the two cases must not be considered, from
a substantive viewpoint, as one and the same case, but be conceived as
separate and independent ones.
VII
One of the issues which I consider as important is concerned with the
hierarchical relationship between two kinds of legal norms, namely that
between natural law and positive law. It may be worth while to draw the
attention of students of law to the fact that this time-honoured academic
theme has found its way into the written pleadings and oral arguments as a
contention on behalf of the Federal Republic.[p.193]
The Federal Republic denied, in the first place, the opposability of the
equidistance principle incorporated in Article 6, paragraph 2. Next she
sought to deny also its character as customary international law. Finally,
she tried to attain the same effect from legal-philosophical con-siderations
concerning the two kinds of norms: natural law and positive law.
According to the contention of behalf of the Federal Republic, the
application of Article 6, paragraph 2, of the Convention, which
incorporates the equidistance principle, should be subordinated to a higher
norm of law which is nothing but the principle of just and equitable
apportionment deriving from the idea of "distributive justice" (justitia
distributiva) (Memorial, para. 30, p. 30), "the general principles of law
recognized by civilized nations" (Article 38, paragraph 1 (c)) and the
so-called natural law of nations (Hearing of 5 November 1968).
Briefly, the Federal Republic seems to deny the application of Article 6,
paragraph 2, of the Convention for the reason that this would produce a
harsh effect and insists that the norm of just and equitable apportionment
be applied overruling the equidistance principle. This contention reminds us
of an appeal to the mitigating role of equity versus common law in English
law. In the present cases the Federal Republic appeals to the corrective or
complementary function of natural law with regard to positive law.
However, from the viewpoint of traditional natural law doctrine, the
overruling of a positive law rule by a natural law principle does not seem
to include such issue in question. Natural law does not venture to interfere
with positive law except in the case that positive law rules are manifestly
immoral and violate the principles of natural law. Such a case cannot occur
in the matter of the equidistance principle. Natural law should not very
easily permit the validity of positive law rules to be contested by invoking
natural law to the effect that such rules are not in conformity with the
idea of justice and equity, and therefore contrary to natural law. It should
not open a door to all subjective and arbitrary contentions denying the
validity of positive law at the expense of security and expediency. If a
positive law rule is supposed to produce a harsh or inconvenient effect, the
correct course is not to deny the validity of this rule on account of its
unjustness and inequitableness, but to propose its amendment.
In the present cases the application of the equidistance principle produces
neither injustice nor inequitableness as is argued on behalf of the Federal
Republic. In reality, the question regarding the equidistance principle is
concerned with that of expediency, namely what method is more practical and
convenient for the purpose of delimitation of the continental shelf and
therefore it is of a technical character and not of a character subject to
moral evaluation and overruling by a natural law[p.194] principle. Of
course, the application of the technical rule of equidistance may produce an
unjust and inequitable result. The Federal Republic insists on the existence
of such a result in the present cases. However, as it has been indicated
above, such unjust and inequitable result cannot be recognized in the
application of the equidistance principle to the delimitation of the present
cases.
Incidentally, one of the three Aristotelean justices, justitia distributiva
which was referred to on behalf of the Federal Republic, appears to have
only very slight association with her cause. Justitia distributiva is to
govern the relationship between a corporate body and its members, namely the
obligation of a corporation versus its members. If we wish to apply some
category of justitia, it would be the justitia commutativa which prevails in
the relationships between individual members in a corporate body, because
the issue is concerned with justice between individual States in the
international community and not an obligation in the international community
versus individual States as its members.
In short, the reference by the Federal Republic to natural law or
distributive justice as a basis for the principle of just and equitable
apportionment does not mean more than asserting the idea: jus est ars boni
et aequi.
The Federal Republic puts forth an argument, namely the principle of just
and equitable delimitation, as an alternative to the principle of just and
equitable apportionment for the purpose of denying the exclusive application
of the equidistance principle. It seems to me that the difference between
the two alternatives is only nominal in the sense that just and equitable
delimitation implies in itself the idea of apportionment. We can see it from
the fact that in both cases the factors to enter into consideration to
achieve justness and equitableness are identical. Therefore, I venture to
say that the above-stated reasons denying the principle of just and
equitable apportionment advocated on behalf of the Federal Republic can be
mutatis mutandis applied to the principle of just and equitable
delimitation.
In this context we must recall that the Judgment has categorically rejected
the principle of just and equitable apportionment. However, so far as the
Judgment recognizes the factors to be considered which were put forth by the
Federal Republic under the said principle, there is no substantial
difference from recognizing that principle itself. The principle of just and
equitable delimitation does not mean more than the repetition of the idea of
law.
Next the same can be said concerning the Federal Republic's reference to
Article 38, paragraph 1 (c), as a basis for the principle of just and
equitable apportionment in the sense that this principle being vague and
abstract cannot offer any criterion for the decision of the present cases.
The character of "general principles of law" is more notably to be
[p.195]recognized in the principle of equidistance than in the alleged
principle of just and equitable apportionment. I consider that the
legislative process of the Geneva Convention and, parallel with it, the
formation of customary international law on the matter of the equidistance
principle indicate the existence of a principle or method of a technical,
therefore universal character on this matter as a common denominator for
conventional law and customary law.
My conclusion is that the application of the principle of equidistance is
not overruled by the principle of just and equitable apportionment or
delimitation. The reference of the Federal Republic to natural law doctrine
or the general principles of law is out of place.
***
For the reasons indicated above, my conclusion is as follows:
1. The first principle of international law to be applied to the
delimitation as between the Parties of the areas of the continental shelf
in the North Sea is that of obligation to enter into negotiations with a
view to arriving at an agreement as I stated above. Accordingly, I agree on
this point with the view of the Court, which is incontrovertible. This
conclusion cannot be denied by the fact that the presentation of the two
Special Agreements was preceded by detailed negotiations between the
Governments of the States Parties. The repeated effort to arrive at
agreement by effective negotiation is not excluded at this stage, but is
obligatory.
2. The priority of negotiation and agreement is a principle of a procedural
nature. A question arises concerning what kind of substantive principle must
prevail in the matter of delimitation of the continental shelf: the
equidistance principle or the equitable principle?
I regret that, contrary to the Court's decision, I share the view in favour
of the equidistance principle instead of the equitable principle for the
reasons indicated above. Particularly, I cannot agree with the Court's view
of the application of the latter principle to the present cases by the
reason that it amounts to the following three points:
First, the Court recognizes that delimitation by the application of the
equidistance principle would produce in the present cases an unjust and
inequitable effect detrimental to the Federal Republic of Germany, which is
not the case, as stated above.
Secondly, on this hypothesis, the Court admits in favour of the Federal
Republic an appeal to higher ideas of law such as justice, equity or
equitableness, and reasonableness, which are self-evident but which, owing
to their general and abstract character, are unable to furnish any[p.196]
concrete criteria for delimitation in the present cases. Reference to the
equitable principle is nothing else but begging the question.
Thirdly, the factors which may be taken into consideration to carry out the
equitable principle are of diverse nature and susceptible of different
evaluations. Consequently, it appears extremely doubtful whether the
negotiations could be expected to achieve a successful result, and more
likely that they would engender new complications and chaos.
It may be said that the Court's answer amounts to the suggestion to the
Parties that they settle their dispute by negotiations according to ex aequo
et bono without any indication as to what are the "principles and rules of
international law", namely juridical principles and rules vested with
obligatory power rather than considerations of expediency— factors or
criteria—which are not incorporated in the legal norm and about which the
Parties did not request an answer.
It may be said also that the Court seems, by this decision, to be making a
legislative consideration on the apportionment of the continental shelf
which is not of declaratory but of constitutive nature contrary to the
concept of the delimitation and which has been denied by it.
The important matter in connection with the present cases is that the
Parties should have a guarantee of being able to terminate the possibly
endless repetition of detailed negotiations by the final application of the
equidistance principle. Another important matter should be that, the Court
by according the equidistance principle the status of a world law would make
a contribution to the progressive development of international law.
(Signed) Kotaro Tanaka.
[p.218]
Dissenting Opinion of Judge Lachs
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.
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.
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).
I
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.
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.
The need for a legal regulation of the exploration and exploitation
of[p.219] 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.
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.
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 [p220] 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 circum-stances." (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 Venezuelan 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.
*[p.221]
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.
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.
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.
II
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
ad-vanced.
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.
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.[p.222]
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?
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.
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.
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 r!!!egime conventional des
fleuves internationaux, Paris, 1879, pp. 228 f.). Reference may [p.223] also
be made to the provisions of Article 12 of the Geneva Convention on the
Territorial Sea and the Contiguous Zone.
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.
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 it by reducing the substance
of some treaties to mere formality.
Such was, indeed, the view of this Court when it stated that "the object and
purpose of the Convention thus limit both the freedom of making reservations
and that of objecting to them" (Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J.
Reports 1951, p. 24).
These considerations apply to all multilateral treaties, the Convention on
the Continental Shelf being no exception. Special attention should be drawn
to the fact that it reflects elements of codification and progressive
development of international law, both closely interwoven.
As for Article 6, paragraph 2, the right to make reservations is determined
by the three elements of which it is composed. First: can a reservation be
made to the provision that the boundary of the continental shelf "shall be
determined by agreement between" the States concerned? Can any State
contract out of the obligation to seek agreement by consent? Obviously not,
for, as was indicated earlier, this stipulation should be read as the
application ad casum of a general obligation of States.
Can the reservation apply to the remaining part of the paragraph? In view of
a special situation a State may claim that in the relationship between rule
(equidistance line) and exception (special circumstances) the latter should
prevail. It may also be that a State recording a reservation aims at the
exclusion of "special circumstances" and thus states its [p224] opposition
to any exception from the rule. No better proof can be offered that the
possibilities of reservation are limited to these two than the practice of
States. Such was, indeed, the object of the reservations made by Venezuela
and France on the one hand (a special definition of "special circumstances"
is reflected in the reservation made by Iran). On the other hand the
reservation made by Yugoslavia shows the desire to strengthen the rule by
excluding any exceptions to it. (But even here the scope of the reservations
is not unlimited, as objections to some of them indicate.)
These considerations lead to the conclusion that the very substance of
paragraph 2 of Article 6 does not admit of reservations which purport "to
exclude . . . the legal effects" of its provisions, but only of those which
may "vary" those legal effects (Draft Articles of the Law of Treaties,
Article 2).
The right to make reservations to Article 6 could not have been intended as
creating an unlimited freedom of action of the parties to the Convention.
This would have opened the door to making it wholly ineffective, with the
obvious result of creating a serious loophole in the Convention.
This is confirmed by the practice, covering as it does a period of ten
years.
This practice:
(a) constitutes important evidence as to the interpretation of the faculty
to make reservations to Article 6;
(b) indicates that the provisions of Article 6 have been generally accepted
without reservation by the parties to the Convention.
As to the wider issue, there is evidence that reservations made to important
law-making or codifying conventions have not prevented their provisions from
being generally accepted as law. Five States made reservations to the
Fourth Hague Convention (1907), yet the principles it incor-porated have
with the passage of time become part of general international law, binding
upon all States.
The Geneva Convention on the High Seas is another case in point. It contains
no clause expressly permitting reservations, but neither does it follow the
example of the Convention on Slavery of 7 September 1956 (Article 9) and
prohibit them. In fact, more reservations have been made to it than to the
Continental Shelf Convention. Yet the Geneva Convention on the High Seas is
obviously a codifying instrument par excellence: its Preamble speaks of
"desiring to codify the rules" and describes the ensuing provisions as
"generally declaratory of established principles of international law".
The Convention on Certain Questions Relating to the Conflict of Nationality
Laws, signed at The Hague on 12 April 1930 (League of Nations Treaty Series,
Vol. 179, pp. 91-113, No. 4137), was, to use its [p.225] own words, "a first
attempt at progressive codification" (Preamble, para. 4) in that field. Yet
its Article 20 authorized reservations to all of its substantive provisions.
After a lapse of over 38 years, no more than 14 States are parties to
it—with six reservations and two declarations. This notwithstanding, this
Court has relied on the practice based, inter alia, on its provisions
(Articles 1 and 5), even though the parties to the case were not parties to
the Convention (Nottebohm, Second Phase, Judgments, I.C.J. Reports 1955, pp.
22 f.). It was also relied upon by the Italian/United States Conciliation
Commission (Merig!!!e claim (I.L.R., 22 (1955), p. 450) and also
Flegenheimer claim (I.L.R., 25 (1958—1), p. 149)).
A further illustration is provided by Article 20 of the United Nations
Convention on the Elimination of All Forms of Racial Discrimination, adopted
by the General Assembly on 21 December 1965: the new test therein introduced
concerning the incompatibility of reservations with the object and purpose
of the Convention has no bearing on the principle itself.
To summarize the foregoing observations: from the manner in which the
Convention as a whole was prepared, from its obvious purpose to become
universally accepted, from the structure and clear meaning of Article 6,
paragraph 2, as a whole, from the genesis of the equidistance rule and from
the fact that it has been enshrined in no less than four provisions of three
conventions signed in Geneva in 1958,I find it difficult to infer that it
was proposed by the International Law Commission in an impromptu and
contingent manner or on an experimental basis, and adopted by the Geneva
Conference on that understanding. Nor is there anything—including Article
12—that can disqualify the equidistance rule from becoming a rule of general
law or constitute an obstacle to that process. Furthermore, there are no
other known factors which may have had this effect.
III
It is generally recognized that provisions of international instruments may
acquire the status of general rules of international law. Even unratified
treaties may constitute a point of departure for a legal practice. Treaties
binding many States are, a fortiori, capable of producing this effect, a
phenomenon not unknown in international relations.
I shall therefore now endeavour to ascertain whether the transformation of
the provisions of Article 6, paragraph 2, of the Geneva Convention on the
Continental Shelf, and in particular the equidistance rule, into generally
accepted law has in fact taken place. This calls for an analysis of State
practice, of the time factor, and of what is traditionally understood to
constitute opinio juris.[p.226]
Ten years have elapsed since the Convention on the Continental Shelf was
signed, and 39 States are today parties to it.
Delay in the ratification of and accession to multilateral treaties is a
well-known phenomenon in contemporary treaty practice. (According to a
recent study conducted by the United Nations Institute for Training and
Research, 55 out of 179 multilateral treaties in respect of which the
Secretary-General of the United Nations performs depositary functions had
received an average of only about 27 per cent, of possible acceptances.) It
is self-evident that in many cases substantive reasons are at the root of
these delays. However, experience indicates that in most cases they are
caused by factors extraneous to the substance and objective of the
instrument in question. Often the slowness and inherent complication of
constitutional procedures, the need for interdepartmental consultations and
co-ordination, are responsible (lack of ratification does not, however,
prevent States from applying the provisions of such conventions).
Frequently, again, there is procrastination, due to the lack of any sense of
urgency, or of immediate interest in the problems dealt with by the treaty,
for so long as there are other important issues to deal with. This may be
illustrated by a comparison between the Convention on Diplomatic Relations
(signed at Vienna on 24 April 1961) and the Convention on the High Seas
(signed at Geneva on 29 April 1958). Both are eminently instruments which
codify existing law. Yet the first, within a period of about seven years,
had received 77 ratifications, accessions or notifications of succession,
while after a lapse of ten years only 42 States had become parties to the
latter. The reasons seem self-evident: the Convention on Diplomatic
Relations is of direct, daily interest for every State. It took ten years
for an instrument codifying existing law, the Convention on the Prevention
and Repression of the Crime of Genocide (adopted by the General Assembly of
the United Nations on 9 December 1948), to obtain 59 ratifications and
accessions, while by the end of 1967—20 years after its adoption—71 States
had become parties to it.
These overlong delays in ratification and their causes, not related to the
substance of the instruments concerned, are factors for which due allowance
has to be made.
I may have dwelt on this point at excessive length. I have done so because
it is relevant to the issue now before the Court. For it indicates that the
number of ratifications and accessions cannot, in itself, be considered
conclusive with regard to the general acceptance of a given instrument.
In the case of the Convention on the Continental Shelf, there are other
elements that must be given their due weight. In particular, 31 States came
into existence during the period between its signature (28 June 1958) and
its entry into force (10 June 1964), while 13 other nations have since
acceded to independence. Thus the time during which these [p.227] 44 States
could have completed the necessary procedure enabling them to become parties
to the Convention has been rather limited, in some cases very limited.
Taking into account the great and urgent problems each of them had to face,
one cannot be surprised that many of them did not consider it a matter of
priority. This notwithstanding, nine of those States have acceded to the
Convention. Twenty-six of the total number of States in existence are
moreover land-locked and cannot be considered as having a special and
immediate interest in speedy accession to the Convention (only five of them
have in fact acceded).
Finally, it is noteworthy that about 70 States are at present engaged in the
exploration and exploitation of continental shelf areas.
It is the above analysis which is relevant, not the straight comparison
between the total number of States in existence and the number of parties to
the Convention. It reveals in fact that the number of parties to the
Convention on the Continental Shelf is very impressive, including as it does
the majority of States actively engaged in the exploration of continental
shelves.
Again, it is noteworthy that while 39 States are parties, initial steps
towards the acceptance of the Convention have been taken by 46 States, who
have signed it: half of them have ratified it. Thus to the figure of 39 that
of 23 States is to be added, i.e., those States which by signing it have
acquired a provisional status vis-a-vis the Convention, each of them being
"obliged to refrain from acts which would defeat the object and purpose of
the treaty . . ." until it "shall have made its intention clear not to
become a party to the treaty" (Article 15a of the Draft Articles of the Law
of Treaties, prepared by the I.L.C., as amended and adopted by the Committee
of the Whole of the Conference on the Law of Treaties; Doc. A/CONF. 39/C.
1/L.370/Add. 4, p. 8).
This mathematical computation, important as it is in itself, should be
supplemented by, so to speak, a spectral analysis of the representa-tivity
of the States parties to the Convention.
For in the world today an essential factor in the formation of a new rule of
general international law is to be taken into account: namely that States
with different political, economic and legal systems, States of all
continents, participate in the process. No more can a general rule of
international law be established by the fiat of one or of a few, or—as it
was once claimed—by the consensus of European States only.
This development was broadly reflected in the composition of the Geneva
Conference on the Law of the Sea; it is now similarly reflected within the
number of States which are parties to the Convention on the Continental
Shelf. These include States of all continents, among them States of various
political systems, with both new and old States representing the main legal
systems of the world.[p.228]
It may therefore be said that, from the viewpoints both of number and of
representativity, the participation in the Convention constitutes a solid
basis for the formation of a general rule of law. It is upon that basis that
further, more extensive practice has developed:
(a) A considerable number of States, both parties and not parties to the
Convention (and quite apart from the Parties to the present cases), have
concluded agreements delimiting their continental shelves. Several of these
make specific reference to the Geneva Convention ("having regard to . . .",
"bearing in mind . . ." or "in accordance with the Geneva Convention on the
Continental Shelf", "bearing in mind Article 6 of the Geneva Convention on
the Continental Shelf" or "in accordance with the principles laid down in
the Geneva Convention on the Continental Shelf of 1958, in particular its
Article 6"). At least six other agreements (registered with the United
Nations) have accepted as a basis the equidistance or median lines, though
without actually referring to the Convention. (Texts: United Nations Doc.
A/AC. 135/11, and Add. 1.)
(b) A considerable number of States (both parties and not parties to the
Convention) have passed special legislation concerning their continental
shelves, or included provisions on the subject in other instruments. Some
of them have enacted a unilateral delimitation of their continental shelf on
the basis of the equidistance rule. Fifteen have referred specifically to
the Convention of 1958, invoking it in a preamble or in individual articles,
or employing definitions derived from it (sometimes with slight
modifications). One instrument refers to "law and the provisions of
international treaties and agreements", "law or ratified international
treaties" (Guatemala), and another accepts the median line as a definitive
boundary (Norway). Another (U.S.S.R.) reproduces mutatis mutandis the full
text of Article 6 of the Convention, while three (Finland, Denmark and
Malaysia) make specific reference to that Article. Another, yet again,
invokes "established international practice sanctioned by the law of
nations" (Philippines). (Texts: U.N. Doc. A/AC. 135/11, and Add. 1.)
(c) In some cases the unilateral adoption of the equidistance rule has had a
direct bearing on its recognition by other States. To give but one instance:
Australia's Federal Petroleum (Submerged Lands) Act, 1967, which defines
adjacent areas (section 5) and their delimitation (Second Schedule), is
based on the application of the equidistance rule. This delimitation appears
to have been effected on the assumption that a neighbouring State could not
advance any claim beyond the equidistance line.
All this leads to the conclusion that the principles and rules enshrined in
the Convention, and in particular the equidistance rule, have
been[p.229]accepted not only by those States which are parties to the
Convention on the Continental Shelf, but also by those which have
subsequently followed it in agreements, or in their legislation, or have
acquiesced in it when faced with legislative acts of other States affecting
them. This can be viewed as evidence of a practice widespread enough to
satisfy the criteria for a general rule of law.
For to become binding, a rule or principle of international law need not
pass the test of universal acceptance. This is reflected in several
statements of the Court, e.g.: "generally . . . adopted in the practice of
States" (Fisheries, Judgment, I.C.J. Reports 1951, p. 128). Not all States
have, as I indicated earlier in a different context, an opportunity or
possibility of applying a given rule. The evidence should be sought in the
behaviour of a great number of States, possibly the majority of States, in
any case the great majority of the interested States.
Thus this test cannot be, nor is it, one endowed with any absolute
character: it is of its very nature relative. Criteria of frequency,
continuity and uniformity are involved. However, not all potential rules
are susceptible to verification by all these criteria. Frequency may be
invoked only in situations where there are many and successive
opportunities to apply a rule. This is not the case with delimitation,
which is a one-time act. Furthermore, as it produces lasting consequences,
it invariably implies an intention to satisfy the criterion of continuity.
As for uniformity, "too much importance need not be attached to" a "few
uncertainties or contradictions, real and apparent" (Fisheries, Judgment,
I.C.J. Reports 1951, p. 138).
Nor can a general rule which is not of the nature of jus cogens prevent some
States from adopting an attitude apart. They may have opposed the rule from
its inception and may, unilaterally, or in agreement with others, decide
upon different solutions of the problem involved. Article 6, paragraph 2, of
the Convention on the Continental Shelf, by virtue of the built-in
exceptions, actually opens the way to occasional departures from the
equidistance rule wherever special circumstances arise. Thus the fact that
some States, as pointed out in the course of the proceedings, have enacted
special legislation or concluded agreements at variance with the
equidistance rule and the practice confirming it represents a mere permitted
derogation and cannot be held to have disturbed the formation of a general
rule of law on delimitation.
***[p.230]
With regard to the time factor, the formation of law by State practice has
in the past frequently been associated with the passage of a long period of
time. There is no doubt that in some cases this may be justified.
However, the great acceleration of social and economic change, combined
with that of science and technology, have confronted law with a serious
challenge: one it must meet, lest it lag even farther behind events than it
has been wont to do.
To give a concrete example: the first instruments that man sent into outer
space traversed the airspace of States and circled above them in outer
space, yet the launching States sought no permission, nor did the other
States protest. This is how the freedom of movement into outer space, and in
it, came to be established and recognized as law within a remarkably short
period of time. Similar developments are affecting, or may affect, other
branches of international law.
Given the necessity of obviating serious differences between States, which
might lead to disputes, the new chapter of human activity concerning the
continental shelf could not have been left outside the framework of law for
very long.
Thus, under the pressure of events, a new institution has come into being.
By traditional standards this was no doubt a speedy development. But then
the dimension of time in law, being relative, must be commensurate with the
rate of movement of events which require legal regulation. A consequential
response is required. And so the short period within which the law on the
continental shelf has developed and matured does not constitute an obstacle
to recognizing its principles and rules, including the equidistance rule, as
part of general law.
***
Can the practice above summarized be considered as having been accepted as
law, having regard to the subjective element required? The process leading
to this effect is necessarily complex. There are certain areas of State
activity and international law which by their very character may only with
great difficulty engender general law, but there are others, both old and
new, which may do so with greater ease. Where continental shelf law is
concerned, some States have at first probably accepted the rules in
question, as States usually do, because they found them con-venient and
useful, the best possible solution for the problems involved. Others may
also have been convinced that the instrument elaborated within the framework
of the United Nations was intended to become and would in due course become
general law (the teleological element[p.231] is of no small importance in
the formation of law). Many States have followed suit under the conviction
that it was law.
Thus at the successive stages in the development of the rule the motives
which have prompted States to accept it have varied from case to case. It
could not be otherwise. At all events, to postulate that all States, even
those which initiate a given practice, believe themselves to be acting under
a legal obligation is to resort to a fiction—-and in fact to deny the
possibility of developing such rules. For the path may indeed start from
voluntary, unilateral acts relying on the confident expectation that they
will find acquiescence or be emulated; alternatively, the starting-point may
consist of a treaty to which more and more States accede and which is
followed by unilateral acceptance. It is only at a later stage that, by the
combined effect of individual or joint action, response and interaction in
the field concerned, i.e., of that reciprocity so essential in international
legal relations, there develops the chain-reaction productive of
international consensus.
In view of the complexity of this formative process and the differing
motivations possible at its various stages, it is surely over-exacting to
require proof that every State having applied a given rule did so because it
was conscious of an obligation to do so. What can be required is that the
party relying on an alleged general rule must prove that the rule invoked is
part of a general practice accepted as law by the States in question. No
further or more rigid form of evidence could or should be required.
In sum, the general practice of States should be recognized as prima facie
evidence that it is accepted as law. Such evidence may, of course, be
controverted—even on the test of practice itself, if it shows "much
uncertainty and contradiction" (Asylum, Judgment, I.C.J. Reports 1950, p.
277). It may also be controverted on the test of opinio juris with regard to
"the States in question" or the parties to the case.
In approaching this issue one has to take into account the great variety of
State activity—manifesting itself as it does today in many forms of
unilateral act or international instrument or in the decisions of
international organizations—, the multiplicity and interdependence of these
processes.
With the ever-increasing activities of States in international relations,
some rules of conduct begin to be accepted even before reaching that state
of precision which is normally required for a rule of law. If their binding
force is contested, courts operating within the traditional framework of
certitude may apply tests of perfection and clarity they could not possibly
pass. The alternative would be to fall back on some general and, it may be,
elusive principle. This may not be conducive to strengthening the edifice
of international law, which is so important for present[p232] day
international relations. One should of course avoid the risk of petrifying
rules before they have reached the necessary state of maturity and by doing
so endangering the stability of and confidence in law. It may, however, be
advisable, without entering the field of legislation, to apply more flexible
tests, which, like the substance of the law itself, have to be adapted to
changing conditions. The Court would thus take cognizance of the birth of a
new rule, once the general practice States have pursued has crossed the
threshold from haphazard and discretionary action into the sphere of law.
As to the cases before the Court, the situation leaves little room for
doubt. The conclusion by States of agreements in the field of
continental-shelf delimitation has self-evidently expressed their
willingness to accept the rules of the Convention "as law" and has in fact
represented a logical furtherance of the provisions of Article 6, paragraph
2. As for the unilateral acts concerned, they also, by their reference to
the Convention or borrowing of its very wording, have given recognition to
its provisions. Other States have done so by acquiescence.
The foregoing analysis leads to the conclusion that the provisions of
Article 6, paragraph 2, of the Geneva Convention on the Continental Shelf,
and more especially the equidistance rule, have attained the identifiable
status of a general law. This may be contested in a particular case by a
State denying its opposability to itself. Then, of course, the matter
becomes one of evidence.
IV
I now turn to the principal issue concerning the law applicable to the
present cases. Is the Federal Republic bound by Article 6, paragraph 2, of
the Geneva Convention?
The Federal Republic of Germany signed the Convention on the Continental
Shelf on 30 October 1958. This fact, as indicated earlier, cannot remain
without influence on that State's relationship to the Convention.
Admittedly it does not imply an obligation to ratify the instrument, nor is
it in itself sufficient to bind the Federal Republic to observance of its
provisions. However, it certainly implies a link between the State concerned
and the treaty to which it is not as yet a party.
The Court has made this perfectly clear by stating that "Without going into
the question of the legal effect of signing an international convention,
which necessarily varies in individual cases, the Court considers that
signature constitutes a first step to participation in the Convention"; and
the Court continued: "It is evident that without ratification, signature
[p233] does not make the signatory State a party to the Convention;
nevertheless it establishes a provisional status in favour of that State"
(Reservations to Genocide Convention, Advisory Opinion, I.C.J. Reports 1951,
p. 28). Consequently the Court recognized, in the context of the case it was
dealing with at the time, certain rights which "the signature confers upon
the signatory". This obviously also implies some obligations.
Now, at no time did the Federal Republic make a statement which could be
interpreted as a repudiation of the Convention or the abandonment of its
intention to ratify it. This was made clear even in the course of the
proceedings before the Court, by the admission that it had not "yet"
ratified the Convention (hearing of 23 October 1968).
There is no need to stress the obvious. As long as this ratification has not
been forthcoming, the Federal Republic cannot be considered as a party to
the Convention. The Government may have changed its view, as governments do;
parliament may eventually refuse ratification. However, the act of
signature has to be viewed in the context of other voluntary and positive
acts of the Federal Republic in this domain.
On 22 January 1964 the Federal Government issued a Proclamation which
stated, inter alia:
"The Federal Government will shortly submit to the Legislature an Accession
Bill on this Convention in order to create the constitutional basis for
ratification by the Federal Republic of Germany";
and further:
"In order to eliminate legal uncertainties that might arise in the present
situation until the Geneva Convention on the Continental Shelf comes into
force and until its ratification by the Federal Republic of Germany, the
Federal Government deems it necessary to affirm the following now:
1. In virtue of the development of general international law, as expressed
in recent State practice and in particular in the signing of the Geneva
Convention on the Continental Shelf, the Federal Government regards the
exploration and exploitation of the natural resources of the seabed and
subsoil of the submarine areas adjacent to the German coast but outside the
German territorial sea, to a depth of 200 metres and also—so far as the
depth of the superjacent waters admits of the exploitation of the natural
resources—beyond that, as an exclusive sovereign right of the Federal
Republic of Germany. In the individual case the delimitation of the German
continental shelf vis-à-vis the continental shelves of foreign States
[p.234] remains subject to agreement with those States." [Translation by the
Registry FN1].
---------------------------------------------------------------------------------------------------------------------
FN1"Die
Bundesregierung wird den gesetzgebenden Körperschaften in Kürze den Entwurf
eines Zustimmungsgesetzes zu dieser Konvention vorlegen, um die
verfassungsrechtliche Grundlage für die Ratifikation durch die
Bundesrepublik Deutschland zu schaffen." "Um Rechtsunklarheiten zu
beseitigen, die sich in der gegenwärtigen Situation bis zum Inkrafttreten
der Genfer Konvention über den Festlandsockel und bis zu ihrer Ratifikation
durch die Bundesrepublik Deutschland ergeben könnten, hält es die
Bundesregierung für erforderlich, schon jetzt folgendes festzustellen:
1. Die Bundesregierung sieht auf Grund der Entwicklung des allgemeinen
Völkerrechts, wie es in der neueren Staatenpraxis und insbesondere in der
Unterzeichnung der Genfer Konvention über den Festlandsockel zum Ausdruck
kommt, die Erforschung und Ausbeutung der Naturschätze des Meeresgrundes
und des Meeresuntergrundes der an die deutschen Meeresküsten grenzenden
Unterwasserzone ausserhalb des deutschen Küstenmeeres bis zu einer Tiefe von
200 m und—soweit die Tiefe des Darüber befindlichen Wassers die Ausbeutung
der Naturschätze gestattet—auch hierüber hinaus als ein ausschliessliches
Hoheitsrecht der Bundesrepublik Deutschland an. Im einzelnen bleibt die
Abgrenzung des deutschen Festlandsockels gegenüber dem Festlandsockel
auswärtiger Staaten Vereinbarungen mit diesen Staaten vorbehalten."
(Bundesgesetzblatt, Teil 11, Nr. 5, 6 February 1964.)
---------------------------------------------------------------------------------------------------------------------
In the exposé des motifs of the Bill on the Continental Shelf, 25 July 1964,
special reference is made to the Convention, as a manifest expression of a
change in the general approach to the problem of the continental shelf:
"For a long time the possibility of individual States' acquiring special
rights over the parts of the continental shelf lying off their coast had
been denied in the theory and practice of international law. In recent years
the opposite view, that the extraction and appropriation of the resources of
the marine subsoil are not free but reserved to the coastal States, has come
to prevail. A manifest expression of this change can in particular be seen
in the Convention on the Continental Shelf of 29 April 1958 (reproduced in
Archiv des Völkerrechts, Vol. 7, 1958-59, pp. 325 ff.), adopted at the
Geneva Conference on the Law of the Sea, which was signed by the Federal
Republic of Germany together with 45 other States and has since been
ratified by 21 of those States. According to its Article 11 this Convention
will come into force as soon as the next instrument of ratification is
deposited.
Considering the above, one may proceed on the assumption that, at least
since the Federal Government's Proclamation of 20 January 1964, which has
remained unchallenged, the Federal Republic holds sovereign rights,
coinciding as to content with those established for coastal States by the
Geneva Convention, in the domain of the German continental shelf."
[Translation by the Registry FN2].
---------------------------------------------------------------------------------------------------------------------
FN2
Lange Zeit hindurch war in der volkerrechtlichen Lehre und Praxis die
Möglichkeit des Erwerbs von Sonderrechten einzelner Staaten an den ihrer
Küste vorgelagerten Teilen des Festlandsockels verneint worden. In den
letzten Jahren setzte sich die gegentielige Auffassung durch, dass die
Gewinnung und Aneignung der Schätze des Meeresuntergrundes nicht frei,
vielmehr den Küstenstaaten vorbehalten seien. Als sichtbarer Ausdruck dieser
Wandlung kann namentlich die auf der Genfer Seerechtskonferenz zustande
gekommene Konvention über den Festlandsockel vom 29. April 1958 (abgedruckt
in Archiv des Völkerrechts Bd. 7 [1958/59] S. 325 ff.) gewertet werden, die
neben 45 anderen Staaten auch von der Bundesrepublik Deutschland
unterzeichnet und in der Zwischenzeit von 21 dieser Staaten ratifiziert
worden ist. Nach ihrem Artikel 11 wird diese Konvention bereits mit der
Hinterlegung der nächsten Ratifikationsurkunde in Kraft treten.
Es kann angesichts dessen davon ausgegangen werden, dass der Bundesrepublik
spätestens seit der ohne Widerspruch gebliebenen Proklamation der
Bundesregierung vom 20. Januar 1964 im Bereich des deutschen Festlandsockels
Hoheitsrechte zustehen, die sich inhaltlich mit den in der Genfer Konvention
zugunsten der Küstenstaaten festgelegten Rechten decken." (Verhandlungen des
deutschen Bundestages, 1964, Vol. 91, Drucksache IV/2341.)
--------------------------------------------------------------------------------------------------------------------
[p.235]
The Proclamation of the Federal Government of 22 January 1964 refers, then,
to "the development of general international law, as expressed in recent
State practice and in particular in the signing of the Geneva Convention on
the Continental Shelf". Here an opinion is expressed as to the character and
scope of the law on the continental shelf. It constitutes in fact a
value-judgment on the state of the law on the subject. Indeed it is
emphatically implied that the mere signing of that instrument, at a time
when it had not yet entered into force, was evidence of general
international law. The Federal Republic viewed its own signature as a
constituent element of that evidence, thus attaching to it far more
importance than is normal in the case of signatures to instruments requiring
ratification. If words have any meaning, these could be understood solely
as the recognition by the Federal Republic that the Geneva Convention
reflected general international law. Specific reference was made to State
practice. It deemed this practice, covering, up to the date of the
Proclamation, a period of over five years, to be adequate and sufficiently
uniform to be considered as evidence of general international law, for if
there had been variations within it, or it had been inadequate, no such
conclusion as to the definitive state of the law could have been drawn. The
Federal Government also linked the practice with the Geneva Convention.
Events after 22 January 1964 could in no circumstances be held to weaken an
official statement of this kind, but in fact they have only added to its
force. For the Geneva Convention has become law, and subsequent practice has
corroborated it further.
The Proclamation is, therefore, as binding upon the Federal Republic today
as it was at the time it was made. A value-judgment of so final a nature may
not be revoked. It should therefore be viewed as an unequi-[p236] vocal
expression of opinio juris, with all the consequences flowing therefrom.
Indeed, if it may be claimed that the opinio juris of certain other States
is in doubt or not fully proven, this is certainly not the case of the
Federal Republic. This is a decisive point in the present cases.
As for the exposé des motifs of the Bill on the Continental Shelf, it stands
on the Geneva Convention and the Federal Government's Proclamation of 20
January 1964, and states that: "The rules provided for in this Bill are to
be the municipal supplement to the effects of the Proclamation in the field
of international law" (Verhandlungen des deutschen Bundestages, 1964, Vol.
91, Drucksache 1V 2341). It refers to the Convention as a whole with no
exception or reservation. The great evidential weight attaching to documents
of this nature is surely incontrovertible. This Court has held a number of
expose des motifs "conclusive" in a case before it (Fisheries, Judgment,
I.C.J. Reports 1951, p. 135).
States may obviously change their intentions, conduct and policy, but it
would seriously undermine the worth of and reliance upon statements made by
governments if value-judgments of so important a nature were disregarded or
held as not binding upon the governments which made them. For, to use the
words which the Court employed in another context: "Language of this kind
can only be construed as the considered expression of a legal conception . .
." (Fisheries, Judgment, I.C.J. Reports 1951, p. 136).
It has been submitted that the two official statements did not specifically
cite Article 6. This is true; however, they did not exclude it either. The
Convention as a whole is referred to, and that undoubtedly implicates
Article 6. And although the actual wording of the first part of Article 6,
paragraph 2, was employed, this cannot be understood as excluding its
remaining provisions. Only a specific exclusion of the other parts of the
paragraph could have had the effect alleged by the Federal Government. Any
doubt as to this reasoning should be dispelled by the Proclamation's
specific statement that "The Federal Government will shortly submit an
Accession Bill on this Convention". There was no hint of any objections the
Federal Republic might raise to any provisions of the Convention—more
particularly Article 6, paragraph 2—, though this was surely the time and
context for placing them on record. There is not even the slightest evidence
that reservations to the paragraph, of whatever scope or nature, had been
contemplated. If agreement between the parties was mentioned, this, as the
Federal Republic has itself indicated (ut infra), was because the paragraph
in question refers to it "in the first place". This view is confirmed by a
further recognition of Article 6. to be found in the joint minutes of the
delegations of the Federal Republic and the [p.237] Netherlands, dated 4
August 1964 (Memorial, Annex 4). Though here, too, reference is specifically
made to the determination of the continental shelf "by agreement", this is
because agreement was the obvious objective of the conference contemplated
at the time by the Federal Government (which in no way implies rejection of
the other components of Article 6, paragraph 2).
This point has been confirmed by the Federal Government itself:
"At that time the Federal Republic could still expect to come to an amicable
agreement with its neighbours on the delimitation of the continental shelf
before its coast on equitable lines inasmuch as Article 6 expressly refers
the Parties to a settlement by agreement in the first place" (Reply, para.
27).
The Reply continues:
"the insistence on the equidistance line as the only valid rule for the
delimitation of the continental shelf, and the reliance on Article 6,
paragraph 2, of the Convention for this purpose by the Kingdom of Denmark
and the Kingdom of the Netherlands in the negotiations taken up on the
instance of the Federal Republic of Germany . . . caused the Government of
the Federal Republic to reconsider the advisability of ratifying the
Continental Shelf Convention as long as the interpretation of Article 6,
paragraph 2, is uncertain" (ibid.)
.
And yet the Federal Republic denies that it has ever recognized Article 6,
paragraph 2 (Reply, para. 28).
These statements call for some comment. For to refuse to recognize
provisions, and to take exception to a given interpretation of them, are
mutually exclusive positions. An interpretation is disputed in the name of a
contrary conception, in upholding which one in fact defends the provisions
as such. Thus either the Federal Republic has, as it claims, refused to
recognize Article 6, paragraph 2, of the Convention beyond its first
component (though this refusal leaves the binding force of its two official
statements wholly intact), or it must have held a conception thereof which
caused it to contest a particular interpretation. The two positions cannot
be equated, for interpretation must needs concern the paragraph as a whole,
which in no imaginable conception could have been reduced to a single
element, i.e., the determination of the boundary by agreement. The
difference of interpretation could in fact only have concerned the
relationship between the rule and the exception, between equidistance and
special circumstances.[p.238]
In sum, the fragility of the claim to have withheld recognition from Article
6, paragraph 2, as a whole is manifest. It is a claim which has been argued
from a change of position on the ratification issue the very purpose of
which was to explain away definitive and unambiguous statements conveying
such recognition. In fact the Federal Republic made clear its intention to
ratify the Convention simultaneously with the Proclamation acknowledging it
and the practice as expressive of "general international law". The link
between such recognition and ratification may have been more than merely
chronological, e.g. (the latter resulting from the former), one of cause and
effect. Subsequently the Federal Government had second thoughts about
ratifying the Convention. But, given the unreserved nature of the
Proclamation and expose des motifs, the expression of such second thoughts
cannot alter the fact that the Federal Republic—whether or not it ratifies
the Convention— has recognized the binding character of the rules concerned.
The whole of the Federal Republic's reasoning on the subject bears all the
marks of an ex post facto construction. It has obscured the true legal issue
in the present cases. It can have no effect on the recognition of the
Convention (and within it of Article 6, paragraph 2) and of State practice,
reflected in the two official statements placed on record by the Federal
Government.
***
Having thus analysed the position taken by the Federal Republic, I reach the
conclusion that it has recognized the provisions of the Convention on the
Continental Shelf and in particular its Article 6, paragraph 2, as binding.
Subsequent changes in its attitude, in view of the nature of its unequivocal
statements, can have no legal effect. For, in the circumstances, its
situation cannot be assimilated with that of a country which "has always
opposed any attempt to apply" a rule (Fisheries, Judgment, I.C.J. Reports
1951, p. 131), nor with that of one having "repudiated" the relevant treaty
(Asylum, Judgment, I.C.J. Reports 1950, p. 278).
***
In the light of all these facts and of the law, the real legal problem with
which the Court has been confronted is not that of the binding effect of the
equidistance rule upon the Federal Republic, for this is established, but
the question of whether there are special circumstances [p.239] which would
justify a departure from it in the present cases. Indeed, notwithstanding
all that may have been alleged to the contrary, this is the implicit burden
of the Federal Republic's claim.
Are there in fact any special circumstances justifying a departure from the
equidistance rule? Within the meaning of Article 6, paragraph 2, "special
circumstances" is to be understood as constituting merely an exception to
the general rule. This should not be interpreted otherwise than in a
restrictive manner. Indications to this effect were given by the
International Law Commission: "As in the case of the boundaries of coastal
waters, provision must be made for departures necessitated by any
exceptional configuration of the coast, as well as the presence of islands
or navigable channels" (Yearbook of the International Law Commission, 1953,
Vol. II, p. 216, para. 82. Similar and other views were expressed at the
Geneva Conference). There is furthermore room for the view that the presence
of natural resources should not be overlooked.
What are called "special circumstances" should at all events rest on sound
criteria. The term should not be made subject to vague and arbitrary
interpretation (Conference on the Law of the Sea, 1958, Official Records,
II, p. 93; VI, p. 91).
Nor should the concept of "special circumstances" be allowed to substitute
another rule for the equidistance rule. The provision should be thus
understood: that a special situation, created by "special circumstances"
calls for a special, ad hoc arrangement.
There must be, in other words, a combination of factual elements creating a
situation to ignore which would give rise to obvious hardship or
difficulties. Here, as elsewhere, the application of the rule, and the
admission of possible exceptions from it, call for a reasonable approach.
"Reasonableness" requires that the realities of a situation, as it affects
all the Parties, be fully taken into account.
The mere fact that on the application of the equidistance rule the area of
continental shelf allotted to the Federal Republic would be smaller than
those of Denmark or the Netherlands does not create a qualitatively
anomalous situation such as could be regarded as a "special circumstance".
For the area falling to the Federal Republic would not be inconsiderable.
Moreover, if the notion of "special circumstances" is to be taken to imply a
slanting reference to comparative bases, a much wider spectrum of factors
should be taken into account—e.g., the comparative wealth and economic
potential of the States concerned.
The evidence produced in the cases before the Court is not in fact
sufficient to justify an exemption from the rule. It has not been shown that
its application would, on account of the bend in the coast, expose the
Federal Republic to any special hardship, impose upon it any undue [p240]
burdens or create for it any serious difficulties. Thus I find no adequate
basis for exemption from the equidistance rule .
***
In the light of the grounds I have set forth, I deem it unnecessary to deal
with the other issues raised by the three Parties, or the Submissions made
by them. In particular, the question of the combined effect of the
delimitations concerned in each respective case does not arise, as each is
to be determined on the basis of the equidistance rule.
I conclude that 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 boundaries already determined by agreement is to be carried out
in accordance with the provisions of Article 6, paragraph 2, of the Geneva
Convention of 1958, and in particular by the application of the equidistance
rule. There are no special circumstances which justify any departure from
this rule.
To my great regret, therefore, I am unable to concur in the reasoning and
conclusions of the Judgment.
(Signed) Manfred Lachs.
[p241]
Dissenting Opinion of Judge Sorensen
To my great regret I find myself unable to concur in the decision of the
Court, and I wish to avail myself of the right under Article 57 of the
Statute to state the reasons for my dissent.
On certain points I agree with the Court. I do not think that the
equidistance principle—even subject to modification in special
circumstances—is inherent in the legal concept of the continental shelf or
part of that concept by necessary implication.
I also agree that the Federal Republic of Germany has not by her conduct
assumed the obligations under the Geneva Convention on the Continental
Shelf. As I shall indicate later, the conduct of the Federal Republic may be
considered relevant in another context, but I agree that the Convention is
not opposable to her on a contractual or quasi-contractual basis.
I do find, however, that the Convention, and in particular Article 6
thereof, is binding upon the Federal Republic on a different basis. In order
to substantiate this opinion I wish first to make some observations on the
Convention in general, and then afterwards to examine whether the
conclusions reached hold good with respect to Article 6 in particular.
***
It is generally recognized that the rules set forth in a treaty or
convention may become binding upon a non-contracting State as customary
rules of international law or as rules which have otherwise been generally
accepted as legally binding international norms. It is against this
particular background that regard should be had to the history of the
drafting and adoption of the Convention, to the subsequent attitudes of
States, and to the relation of its provisions to the rules of international
law in other, but connected, fields.
In that respect, however, I take a less narrow view than the Court as to the
conditions for attributing such effect to the rules set forth in a
convention. I agree, of course, that one should not lightly reach the
conclusion that a convention is binding upon a non-contracting State. But I
find it necessary to take account of the fact—to which the Court does not
give specific weight—that the Geneva Convention belongs to a particular
category of multilateral conventions, namely those which result from the
work of the United Nations in the field of codification [p242] and
progressive development of international law, under Article 13 of the
Charter.
Over a number of years, and following the procedure laid down in its
Statute, the International Law Commission had elaborated a comprehensive
set of draft articles on the law of the sea, including some on the
continental shelf. The Commission submitted the draft articles to the
General Assembly in the report of its eighth session in 1956. By resolution
1105 (XI) the General Assembly decided to convene a conference of
plenipotentiaries to examine the law of the sea on the basis of this draft,
and all States Members of the United Nations or the specialized agencies
were invited to participate. The conference met in Geneva in the early
months of 1958 and adopted four conventions on the law of the sea, one of
them being the Convention on the Continental Shelf, which were opened for
signature on 28 April 1958.
In assessing the legal effects of a convention adopted in such
circumstances, the distinction between the two notions of "codification"
and "progressive development" of international law may be taken as the point
of departure. According to Article 15 of the Statute of the Inter-national
Law Commission, the term "codification" is used in that Statute to mean "the
more precise formulation and systematization of rules of international law
in fields where there already has been extensive State practice, precedent
and doctrine". The term "progressive development", on the other hand, is
used to mean "the preparation of draft conventions on subjects which have
not yet been regulated by international law or in regard to which the law
has not yet been sufficiently developed in the practice of States".
There is no doubt that the distinction between these two categories is sound
in theory and relevant in practice. There are treaty provisions which simply
formulate rules of international law which have already been generally
accepted as part of international customary law, and it is beyond dispute
that the rules embodied and formulated in such provisions are applicable to
all States, whether or not they are parties to the treaty. On the other
hand, it is equally clear that there are treaty provisions which are
intended to modify the existing legal situation, whether they change the
content of existing rules or regulate matters which have not previously been
regulated by international law. Rules set forth in such treaty provisions
are neither binding upon nor can be invoked by non-contracting States.
It has come to be generally recognized, however, that this distinction
between codification and progressive development may be difficult to apply
rigorously to the facts of international legal relations. Although
theoretically clear and distinguishable, the two notions tend in practice to
overlap or to leave between them an intermediate area in which it is not
possible to indicate precisely where codification ends and progressive
development begins. The very act of formulating or restating [p243] an
existing customary rule may have the effect of defining its contents more
precisely and removing such doubts as may have existed as to its exact scope
or the modalities of its application. The opportunity may also be taken of
adapting the rule to contemporary conditions, whether factual or legal, in
the international community. On the other hand, a treaty purporting to
create new law may be based on a certain amount of State practice and
doctrinal opinion which has not yet crystallized into customary law. It may
start, not from tabula rasa, but from a customary rule in statu nascendi.
The International Law Commission itself has recognized that the distinction
between the process of codification and that of progressive development, as
defined in its Statute, gives rise to practical and theoretical
difficulties. The report of its eighth (1956) session contains, in the
introduction to the chapter on the law of the sea—which includes the draft
articles on the continental shelf—, the following statement:
"In preparing its rules on the law of the sea, the Commission has become
convinced that, in this domain at any rate, the distinction established in
the statute between these two activities can hardly be maintained. Not only
may there be wide differences of opinion as to whether a subject is already
'sufficiently developed in practice', but also several of the provisions
adopted by the Commission, based on a 'recognized principle of international
law', have been framed in such a way as to place them in the 'progressive
development' category. Although it tried at first to specify which Articles
fell into one and which into the other category, the Commission has had to
abandon the attempt, as several do not wholly belong to either." (I.L.C.,
VIII, Report, para. 26).
Considerations such as these are borne out by an examination of the process
by which rules of customary international law are created. Article 38 of the
Statute of the Court refers to international custom "as evidence of a
general practice accepted as law". According to classic doctrine such
practice must have been pursued over a certain length of time. There have
even been those who have maintained the necessity of "immemorial usage". In
its previous jurisprudence, however, the Court does not seem to have laid
down strict requirements as to the duration of the usage or practice which
may be accepted as law. In particular, it does not seem to have drawn any
conclusion in this respect from the ordinary meaning of the word "custom"
when used in other contexts. In the Asylum case the Court only required of
the Colombian Government that it should prove—[p.244]
"that the rule invoked by it is in accordance with a constant and uniform
usage practised by the States in question, and that this usage is the
expression of a right appertaining to the State granting asylum and a duty
incumbent on the territorial State". (I.C.J. Reports 1950, p. 276; also
quoted in the case concerning U.S. Nationals in Morocco, I.C.J. Reports
1952, p. 200).
The possibility has thus been reserved of recognizing the rapid emergence
of a new rule of customary law based on the recent practice of States. This
is particularly important in view of the extremely dynamic process of
evolution in which the international community is engaged at the present
stage of history. Whether the mainspring of this evolution is to be found in
the development of ideas, in social and economic factors, or in new
technology, it is characteristic of our time that new problems and
circumstances incessantly arise and imperatively call for legal regulation.
In situations of this nature, a convention adopted as part of the combined
process of codification and progressive development of international law
may well constitute, or come to constitute the decisive evidence of
generally accepted new rules of international law. The fact that it does not
purport simply to be declaratory of existing customary law is immaterial in
this context. The convention may serve as an authoritative guide for the
practice of States faced with the relevant new legal problems, and its
provisions thus become the nucleus around which a new set of generally
recognized legal rules may crystallize. The word "custom", with its
traditional time connotation, may not even be an adequate expression for the
purpose of describing this particular source of law.
This is not merely a question of terminology. If the provisions of a given
convention are recognized as generally accepted rules of law, this is likely
to have an important bearing upon any problem of interpretation which may
arise. In the absence of a convention of this nature, any question as to the
exact scope and implications of a customary rule must be answered on the
basis of a detailed analysis of the State practice out of which the
customary rule has emerged. If, on the other hand, the provisions of the
convention serve as evidence of generally accepted rules of law, it is
legitimate, or even necessary, to have recourse to ordinary principles of
treaty interpretation, including, if the circumstances so require, an
examination of travaux préparatoires.
Turning now to the Convention on the Continental Shelf, it is hardly
necessary to recall that the legal problems with which it deals have arisen
out of the rapidly increasing demand for sources of energy and the
development of new techniques permitting the extraction of resources from
the subsoil of submarine areas. As problems of international law, the
problems relating to the exploitation of the natural resources of the
[p.245] continental shelf are of recent origin. Although the seeds of the
contemporary doctrine of the continental shelf may be found in earlier
legal writings, it is only during the last quarter of a century that
technical developments have added practical significance to the problems.
The point of departure for the evolution of the legal doctrine relating to
the continental shelf was the proclamation issued by the President of the
United States on 28 September 1945.
On the basis of early State practice and the comments made by governments,
the International Law Commission hammered out the doctrine of the
continental shelf in legal provisions which were subsequently discussed and
adopted, with certain modifications, by the Geneva Conference in 1958. As
far as the main elements are concerned, the provisions of the Convention
circumscribed the doctrine on a number of points. The outer limits of the
continental shelf were defined, although according to alternative criteria,
one of which was the indeterminate criterion of exploitability. The rights
of the coastal State over the shelf area were characterized as "sovereign"
rights—which means that they include the ordinary legislative, executive and
judicial competence of the State on a territorial basis—but only for limited
purposes, namely the exploration and exploitation of natural resources.
These rights were declared to be exclusive, and it was further laid down
that they did not depend on occupation or any express proclamation. The term
"natural resources" was defined in great detail. In addition, the Convention
imposed certain duties on the coastal State for the purpose of safeguarding
the interest of other States in the use of the high seas, and provisions
were included for delimitation vis-à-vis neighbouring States FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
I use the expression “neighbouring States” in a wide and general sense,
covering all Stated adjacent to the same continental shelf, whether or not
they have a common land frontier.
---------------------------------------------------------------------------------------------------------------------
It is difficult to express any definite opinion as to the exact legal status
of the continental shelf in general international law prior to the Geneva
Conference. It may be argued that customary international law had by then
already developed to the point of authorizing a coastal State to exercise
some measure of sovereign rights over the adjacent area of the continental
shelf. But it can hardly be asserted that the doctrine of the continental
shelf, as formulated and circumscribed in considerable detail, first by the
International Law Commission in its draft of 1956, and then by the Geneva
Conference in 1958, was nothing more than a restatement of then existing
rules of customary international law. The provisions of the Convention were
not simply declaratory of already accepted international law in the matter.
This being so, the question remains whether the Convention may nevertheless
now be taken as evidence of generally accepted rules of international law.
In the Judgment, the Court has applied certain minimum conditions for
recognizing that a treaty provision attains the [p246] character of a
generally accepted rule of customary law. In a general way I agree that
these conditions reflect the elements or factors to be considered, except
that I also believe, as indicated above, that it should be considered as a
relevant element that a convention has been adopted in the process of
codification and development of international law under the United Nations
Charter. I do not, however, find the rather schematic approach adopted by
the Court entirely satisfactory. The conditions should not, in my view, be
considered as alternative conditions which could be examined and rejected
one by one. The proper approach, in my opinion, is to examine the relevant
elements as interlocking and mutually interdependent parts of a general
process.
Approaching the problems of the present cases in this manner, 1 think that
the decisive considerations may be summarized as follows. The adoption of
the Geneva Convention on the Continental Shelf was a very significant
element in the process of creating new rules of inter-national law in a
field which urgently required legal regulation. The Convention has been
ratified or acceded to by a quite considerable number of States, and there
is no reason to believe that the flow of ratifications has ceased. It is
significant that the States which have become parties to the Convention are
fairly representative of all geographical regions of the world and of
different economic and social systems. Not only the contracting parties, but
also other States, have adapted their action and attitudes so as to conform
to the Convention. No State which has exercised sovereign rights over its
continental shelf in conformity with the provisions of the Convention has
been met with protests by other States. True, there have been certain
controversies on such questions as the understanding of the term "natural
resources" and the delimitation of shelf areas between the States concerned,
a problem which will be examined further below. In general, however, such
controversies have revolved on the interpretation and application of the
provisions of the Convention, rather than the question whether those
provisions embody generally applicable rules of international law.
I do not find it necessary to go into the question of the opinio juris. This
is a problem of legal doctrine which may cause great difficulties in
international adjudication. In view of the manner in which international
relations are conducted, there may be numerous cases in which it is
practically impossible for one government to produce conclusive evidence of
the motives which have prompted the action and policy of other governments.
Without going into all aspects of the doctrinal debate on this issue, I
wish only to cite the following passage by one of the most qualified
commentators on the jurisprudence of the Court. Examining the conditions of
the opinio necessitatis juris Sir Hersch Lauterpacht writes: [p.247]
"Unless judicial activity is to result in reducing the legal significance
of the most potent source of rules of international law, namely, the conduct
of States, it would appear that the accurate principle on the subject
consists in regarding all uniform conduct of Governments (or, in appropriate
cases, abstention therefrom) as evidencing the opinio necessitatis juris
except when it is shown that the conduct in question was not accompanied by
any such intention." (Sir Hersch Lauterpacht: The Development of
International Law by the International Court, London 1958, p. 380.)
Applying these considerations to the circumstances of the present cases, I
think that the practice of States referred to above may be taken as
sufficient evidence of the existence of any necessary opinio juris.
In my opinion, the conclusion may therefore safely be drawn that as a result
of a continuous process over a quarter of a century, the rules embodied in
the Geneva Convention on the Continental Shelf have now attained the status
of generally accepted rules of international law.
That being so, it is nevertheless necessary to examine in particular the
attitude of the Federal Republic of Germany with regard to the Convention.
In the Fisheries case the Court said that the ten-mile rule would in any
event "appear to be inapplicable as against Norway inasmuch as she has
always opposed any attempt to apply it to the Norwegian coast" (I.C.J.
Reports 1951, p. 131). Similarly, it might be argued in the present cases
that the Convention on the Continental Shelf would be inapplicable as
against the Federal Republic, if she had consistently refused to recognize
it as an expression of generally accepted rules of international law and had
objected to its applicability as against her. But far from adopting such an
attitude, the Federal Republic has gone quite a long way towards recognizing
the Convention. It is part of the whole picture, though not decisive in
itself, that the Federal Republic signed the Convention in 1958, immediately
before the time-limit for signature under Article 8. More significant is the
fact that the Federal Republic has relied on the Convention for the purpose
of asserting her own rights in the continental shelf. The Proclamation of
the Federal Government, dated 20 January 1964, contained the following
passage:
"In order to eliminate legal uncertainties that might arise during the
present situation until the Geneva Convention on the Continental Shelf comes
into operation and is ratified by the Federal Republic of Germany, the
Federal Government deems it desirable already now to make the following
statement:
1. In view of the development of general international law as expressed in
recent State practice and in particular in the signing of the Geneva
Convention on the Continental Shelf, the Federal [p.248] Government regards
the exploration and exploitation of the natural resources of the seabed and
subsoil ... as the exclusive sovereign right of the Federal Republic of
Germany . . ."
Leaving aside for the moment the particular question of the delimitation of
the German area of the continental shelf vis-a-vis other States, to which I
shall revert later, this proclamation may be taken as conclusive evidence of
the attitude adopted by the Federal Republic towards the Convention. This
attitude is relevant, not so much in the context of the traditional legal
concepts of recognition, acquiescence or estoppel, as in the context of the
general process of creating international legal rules of universal
applicability. At a decisive stage of this formative process, an interested
State, which was not a party to the Convention, formally recorded its view
that the Convention was an expression of generally applicable international
law. This view being perfectly well founded, that State is not now in a
position to escape the authority of the Convention.
It has been asserted that the possibility, made available by Article 12, of
entering reservations to certain articles of the Convention, makes it
difficult to understand the articles in question as embodying generally
accepted rules of international law. I intend to revert to this question
below, with particular regard to Article 6. As a more general point I wish
to state that, in my view, the faculty of making reservations to a treaty
provision has no necessary connection with the question whether or not the
provision can be considered as expressing a generally recognized rule of
law. To substantiate this opinion it may be sufficient to point out that a
number of reservations have been made to provisions of the Convention on the
High Seas, although this Convention, according to its preamble, is
"generally declaratory of established principles of international law".
Some of these reservations have been objected to by other contracting
States, while other reservations have been tacitly accepted. The acceptance,
whether tacit or express, of a reservation made by a contracting party does
not have the effect of depriving the Convention as a whole, or the relevant
article in particular, of its declaratory character. It only has the effect
of establishing a special contractual relationship between the parties
concerned within the general framework of the customary law embodied in the
Convention. Provided the customary rule does not belong to the category of
jus cogens, a special contractual relationship of this nature is not invalid
as such. Consequently, there is no incompatibility between the faculty of
making reservations to certain articles of the Convention on the Continental
Shelf and the recognition of that Convention or the particular articles as
an expression of generally accepted rules of international law.
As a special proviso to the preceding general observations I only wish [p249]to add that the recognition of the Convention as an expression of
generally accepted international law should not prejudge an issue which has
arisen since the convention was adopted in 1958. The test of exploitability
for determining the outer limits of the continental shelf should not be
taken to imply that the status of the seabed and subsoil of the ocean depths
could be governed by the Convention. The legal concept of the continental
shelf cannot reasonably be understood, even in its widest connotation, as
extending far beyond the geological concept. The problem does not arise in
the present cases, and 1 therefore do not find it necessary to pursue it
further.
***
Once it has been concluded that the provisions of the Convention on the
Continental Shelf must be considered as generally accepted rules of
international law and that they are therefore applicable to the Federal
Republic even as a non-contracting State, it is necessary to look more
particularly at Article 6, which is the relevant article for the purpose of
the present cases. Although the provisions of the Convention in general are
considered to be binding on the Federal Republic, there might be special
grounds for holding that this general conclusion does not apply to a
particular article.
In examining this question, it must surely be held, by way of a
starting-point, that Article 6 can hardly be separated from the rest of the
Convention without upsetting the balance of the legal regime instituted by
the Convention, or breaking the unity and coherence of that regime. For once
it is recognized that the coastal State has sovereign rights for certain
purposes over the continental shelf adjacent to its coasts, a question of
delimitation in relation to the shelf areas of neighbouring States
necessarily arises—save only in the rare instances of island States which do
not share their continental shelf with other States. A convention on the
legal regime of the continental shelf would be incomplete if it left this
question of delimitation open. Consequently, there would have to be strong
reasons for not considering Article 6 as generally binding along with the
rest of the Convention. To put it otherwise, there is a strong presumption
in favour of considering the rules on the delimitation of the shelf areas as
having a similar legal effect to that of the rules on the extent and nature
of the rights of the coastal State.
Far from being invalidated, this presumption is upheld and confirmed by
other elements. The rules set forth in Article 6 conform to the rules which
are generally applied for the delimitation of maritime areas between
neighbouring States. The 1958 Geneva Conference faced this problem in three
different contexts, in addition to that of the continental shelf, namely the
territorial sea, the contiguous zone and the special fishery conservation
areas. For all three situations it adopted identical solutions, [p.250] as
formulated in Article 12 of the Convention on the Territorial Sea and the
Contiguous Zone. These solutions are substantially the same as that of
Article 6 of the Continental Shelf Convention. The European Fisheries
Convention of 9 March 1964 adopted the same solution for the delimitation of
exclusive fishing zones as between neighbouring States.
Furthermore, the practice of States since 1958 in matters concerning the
delimitation of shelf areas conforms to the rules of Article 6, and there is
no difference between the practice of States parties to the Convention and
that of non-contracting States. The main rule of the Article, the principle
of equidistance or the median line, has been followed in several bilateral
agreements between neighbouring States. It is true that some of these
bilateral agreements deviate from the geometrically exact line of
equidistance. In some cases the agreement has the effect of "straightening
out" the line. In other cases it has taken account of "special
circumstances" within the meaning of Article 6. However that may be, such
agreements are perfectly compatible with the provisions of Article 6.
Likewise, unilateral delimitations proclaimed by States, even before
becoming parties to the Convention, have been based on the equidistance
principle in conformity with Article 6. Although there are areas in certain
parts of the world where the delimitation is still the subject of
controversy, there seems to be no case where the delimitation, whether
undertaken bilaterally or unilaterally, cannot be considered as having taken
place within the framework of Article 6.
It has been argued by the Federal Government—and the Court has accepted that
line of argument—-that certain instances of State practice are irrelevant
for the purpose of the present cases, since they relate only to paragraph 1
of Article 6, namely the delimitation of shelf areas between opposite
coasts, and not to the delimitation as between adjacent States under
paragraph 2 of Article 6. In my opinion, this argument is not decisive. In
order to substantiate this opinion a closer analysis of the provisions of
Article 6 is called for.
The geographical terms used in the two paragraphs of Article 6 are not quite
precise. Paragraph I refers to two or more States "whose coasts are opposite
each other" while paragraph 2 refers to "adjacent States". These two
provisions thus seem to envisage two distinct types or models of
geographical configuration. The realities of geography, however, do not
always conform to such abstract models. The coastlines of adjacent States
(i.e., States having a common land frontier) may confront each other as
opposite coasts in their further course from the point where the common land
frontier meets the sea. Thus the same coastline may fall under the
provisions of both paragraphs. Neither expressly nor implicitly does Article
6 provide any exact and rational criterion for deciding when, and to what
extent, two coastlines are adjacent and when they are opposite.
The difficulties of drawing a clear-cut distinction between the two types
[p.251] of geographical situations were, in my opinion, well illustrated
during the oral proceedings by the production of a sketch map (marked D)
showing the area between Denmark and Germany in the westernmost part of the
Baltic Sea.
As a matter of legal principle, the distinction between "median line"
(paragraph 1) and "equidistance" (paragraph 2) seems to me to be fictitious,
and the juridico-technical terminology of the two paragraphs therefore
inadequate. In both paragraphs the decisive element is that the line in
question shall be drawn in such a manner that each point of it is
equidistant from the nearest points of the baselines from which the breadth
of the territorial sea of each State is measured. The geometrical technique
which is used for the drawing of the line is likewise identical in the two
cases.
The proceedings of the Geneva Conference seem to confirm that the legal
principle is the same in the two cases. In its draft articles the
International Law Commission had applied the distinction between "opposite
coasts" and "adjacent States" to the delimitation of the continental shelf
as well as of the territorial sea. Article 12 of the draft dealt with the
delimitation of the territorial sea in straits and off other opposite
coasts, while Article 14 dealt with the delimitation of the territorial sea
of two adjacent States. At the Conference, however, it was proposed by
Norway that the two rules be merged into one, and a new consolidated rule
was eventually adopted as Article 12 of the Convention on the Territorial
Sea and the Contiguous Zone. In support of the proposal it was argued that—
"the problems dealt with in the two articles [scil. Articles 12 and 14 of
the I.L.C. draft] were so closely interrelated as in some cases to be
practically indistinguishable—for instance where two States had a common
land frontier which met the sea at the head of a deep bay" (Official
Records, Vol. III, p. 188),
and also that—
"The merging of Articles 12 and 14 was merely a matter of drafting; the
substance of the two articles was so similar that they would be better
combined" (ibid., p. 190).
These arguments met with the general approval of the First Committee of the
Conference, dealing with the territorial sea and contiguous zone. In the
Fourth Committee, discussing the continental shelf, the delegate of Norway
drew attention to the fact that the problems dealt with in Article 72 of the
draft (which later became Article 6 of the Convention) were very similar to
those covered by other articles, particularly Articles 12 and 14, with
regard to which the Norwegian delegation had submitted proposals. Any
drafting changes in the texts of Articles 12, 14 and 66 [p.252](concerning
the contiguous zone, eventually Article 24 of the Convention on the
Territorial Sea and the Contiguous Zone) should therefore be taken into
consideration by the drafting committee (Official Records, Vol. VI, p. 92).
This suggestion, however, was not followed up, although nobody spoke against
it. Consequently, the differences which now exist between the provisions of
the two Conventions on this point seem to be due to insufficient
co-ordination in the drafting, rather than different views on the principles
involved. So far as Article 6 of the Convention on the Continental Shelf is
concerned, there is no difference of principle between paragraphs 1 and 2. A
more adequate formulation of that principle would have been a negative
formulation, on the model of Article 12 of the Convention on the Territorial
Sea, to the effect that "no State is entitled to extend its area of the
continental shelf beyond a line, every point of which is equidistant from
[etc.]" (it may be pointed out in passing that the aforesaid Article 12
employs the term "median line" with respect to both opposite and adjacent
coasts).
A formula such as the one just quoted would also be the only adequate
formula for dealing with complex situations, for instance where three or
more States are facing each other as opposite States. It seems obvious that
under the median line principle no State should be authorized to extend its
area into the area to be divided by two other States, and that the median
line between States A and B must stop where it intersects with the median
line between B and C, although this does not follow from the actual wording
of Article 6.
Although an international judge cannot rewrite the Convention on the
Continental Shelf, the preceding explanations seem to warrant the conclusion
that paragraphs 1 and 2 of Article 6 should be interpreted as expressions of
a single legal principle, and that no clear-cut distinction can be made
between the practice of States under one or the other of the two paragraphs.
In order to cover all aspects of the practice of States relating to Article
6, it is also necessary to consider the reservations which some States have
made to that Article. Such reservations are not inadmissible under Article
12 of the Convention, and their legal effects must therefore be determined
on the merits of each particular case. Some of the reservations have been
objected to by other States, but it is not for the Court in the present
cases to express an opinion on the legal effects of such objections. The
reservations made, and the objections entered against them, are relevant
only in so far as their total effect might be to disprove the thesis that
Article 6, as part of the Convention, has been accepted as generally binding
international law. In my opinion, however, this is not the case. First, only
four out of 39 States parties to the Convention have entered reservations to
Article 6. Secondly, having examined each of the reservations in detail, I
find it safe to consider them not as aiming at excluding the regime of
Article 6 as such, but at placing on record [p253] that the existence or
non-existence of special circumstances is claimed within the meaning of the
express terms of that Article.
In general, the reservations made to Article 6 do not seem to invalidate the
conclusion that the practice of States is in conformity with the provisions
of Article 6.
Now if the Federal Republic, in her relations with other North Sea States,
had consistently denied the applicability of Article 6, paragraph 2, to the
delimitation of her shelf area, the question might have arisen of whether
the provisions of that paragraph were opposable to the Federal Republic in
spite of her objections. Like the more general problem examined above
relating to her attitude to the Convention in general, this is a problem
concerning the attitude of the Federal Republic at the formative stage of a
new rule of generally applicable international law. Far from having denied
the applicability of Article 6, however, the Federal Republic has on one
occasion actually referred to it as being applicable. In the Joint Minutes,
signed in Bonn on 4 August 1964 by the respective leaders of a German and of
a Netherlands delegation (Memorial, Federal Republic/Netherlands, p. 104),
it is stated that the treaty which the two delegations would propose to
their Governments to conclude concerning the lateral delimitation of the
continental shelf near the coast would constitute "an agreement in
accordance with the first sentence of paragraph 2 of Article 6 of the Geneva
Convention". The same Joint Minutes embodied a statement to the effect that
the Federal Government was seeking to bring about a conference of North Sea
States—
"with a view to arriving at an appropriate division of the continental shelf
situated in the middle of 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".
Consequently, there is nothing to substantiate a conclusion that Article 6,
and in particular paragraph 2 thereof, has not become part of generally
accepted international law on an equal footing with the other provisions of
the Convention.
***
If, then, Article 6, paragraph 2, is held to be applicable, the next
question is: which of the specific rules set forth in that paragraph should
be applied in the present case?
The first sentence provides that the boundary shall be determined by
agreement between the States concerned. In the present cases, the Parties
have negotiated with a view to reaching agreement. These negotiations have
not been entirely unsuccessful, since partial agreements [p.254] concerning
the delimitation near the coast were concluded. No agreement could be
reached on delimitation farther out to sea. Each of the two Special
Agreements states in the preamble that the existing disagreement "could not
be settled by detailed negotiations". On the other hand, Article 1,
paragraph 2, or each Special Agreement provides that the Governments
concerned "shall delimit the continental shelf in the North Sea as between
their countries by agreement in pursuance of the decision requested from the
International Court of Justice". In their pleadings before the Court the
Parties have confirmed that at present the possibilities of negotiation have
been exhausted, and that no agreement will be possible for so long as the
Court has not decided what principles and rules are applicable. In my
opinion, the Court cannot but take cognizance of this declaration.
Consequently, the next question is whether the principle of equidistance
should be applied, or whether there are special circumstances which justify
another boundary line. A natural construction of the wording of the
provision, in particular the words "unless another boundary line is
justified . . .", seems to indicate that the principle of equidistance is
intended to be the main rule, and the drawing of another boundary line an
exception to this main rule. This general understanding of the provision
seems to be confirmed by the travaux préparatoires, including in particular
the 1953 report of the Committee of Experts and the reports of the
International Law Commission in 1953 and 1956. The problem, however, of the
degree to which the "special circumstances rule" should be considered as an
exception to the main rule, and of exactly how "exceptional" it should be,
is largely identical with the problem as to whether the words "special
circumstances" should be given a wide or a narrow construction, and as to
the nature of the "special circumstances" which could justify a departure
from the principle of equidistance.
This question is not only crucial to the settlement of the dispute between
the Parties, if, as I believe, Article 6 is applicable, but also the most
difficult question to answer. The ordinary and natural meaning of the words
in the context of Article 6 does not give any guidance. If one then turns to
the travaux préparatoires, some guidance is found in the debates and in the
reports of the International Law Commission. Mention is made of "any
exceptional configuration of the coast, as well as the presence of islands
or of navigable channels" (I.L.C. Report, 1953, Commentary on Article 82,
and Report, 1956, Commentary on Article 72). At the Geneva Conference, one
of the members of the 1953 Committee of Experts, Commander Kennedy, speaking
this time as a representative of the United Kingdom, mentioned as examples
of special circumstances "the presence of a small or large island in the
area to be apportioned", such islands to be "treated on their merits", of
"the possession by one of the two States concerned of special mineral
exploitation rights or fishery rights, or the presence of a navigable
channel" (Official Records, [p.255] Vol. VI, p. 93). As an element of the
travaux préparatoires the explanations of votes given by delegates at the
Conference when the Article was adopted may also be taken into
consideration. The representative of the Federal Republic stated that he had
voted in favour of the Article "subject to an interpretation of the words
'special circumstances' as meaning that any exceptional delimitation of
territorial waters would affect the delimitation of the continental shelf"
(ibid., p. 98). Although a declaration of this kind cannot be held against
the Federal Republic as justifying inferences a contrario, the statement is,
nevertheless, significant as evidence of the types of special circumstance
which were in the minds of delegates to the Conference. Incidentally, the
statement made by the German delegate takes account of the situations
obtaining in the Germano-Netherlands and Germano-Danish border areas, and
the two subsequent partial agreements of 1964 and 1965 may be taken to
recognize the existence of "special circumstances" in these two situations.
Nowhere in the travaux préparatoires, however, is any reference to be found
to geographical situations resembling the bend in the general direction of
the German North Sea coast.
It is true that the special circumstances clause was meant to apply in cases
where the equidistance principle would lead to inequitable or unreasonable
results. To indicate what is inequitable or unreasonable, however, is hardly
possible in the absence of any standard of evaluation. The Convention itself
does not offer any such standard, nor do the travaux préparatoires. There is
no basis in international law for maintaining that two or three
neighbouring States should have shelf areas of approximately the same size
measured in square kilometres. The idea of justifia distributiva, however
meritorious it may be as a moral or political principle, has not become part
of international law, as will be seen from a cursory glance at the
established international order with its patent factual inequalities between
States. Nor is there any basis for maintaining that the respective areas of
the continental shelf should be proportionate to the length of the coasts of
the States concerned, or to any such uncertain and hitherto unknown concept
as their "coastal fronts". In itself, the continental shelf area which
appertains to the Federal Republic under the equidistance principle is not
insignificant: it covers an area of 23,000 square kilometres (more than
two-thirds of the total land area of the Netherlands, and more than half of
that of Denmark), and its farthest point out to sea is at a distance of some
170 kilometres, or nearly 100 nautical miles, from the nearest points of the
German coast.
The fact that this area would have been larger, had it not been for the
combined effect of the Netherlands-German and Germano-Danish equidistance
lines, is immaterial in this context. This combined effect is the product of
the bend of the German coast as a geographical factor, and of the location
of the Federal Republic's land frontiers with her neighbours, as a legal and
political factor. Had the Netherlands-German [p.256] frontier lain farther
to the west, and the Germano-Danish frontier farther to the north, the two
equidistance lines would have met farther out to sea, or might not have met
at all, so that the "cutting-off" effect would have been reduced or entirely
removed. But the Court has to base its findings on the geographical and
political factors as they are, and not upon comparisons with hypothetical
situations. The politico-geographical circumstances of coastal States all
over the world, including those around the North Sea, are extremely
different and have the effect of producing great inequalities as to the
areas of continental shelf which each State could claim under the principle
of equidistance. The special circumstances clauses of Article 6 cannot
reasonably be understood as being designed to rectify any such inequalities
caused by elementary geographical factors in combination with the location
of political frontiers.
If anything, it might conceivably be argued that the areas to which
sovereign rights attach for the purpose of exploring and exploiting the
natural resources of the continental shelf should be delimited in such a way
as to apportion these resources equitably among the States concerned, taking
into account the structure and trends of their respective national
economies. The Convention, however, does not give any support for a solution
based on such considerations, and the Parties to the present cases have not
been able to provide relevant information as to the location of the natural
resources, if any, of the areas in question.
One final consideration appears to be relevant. The delimitation of maritime
areas between neighbouring States is a matter which may quite often cause
disagreement and give rise to international disputes. In accordance with the
function of law in the international community, the rules of international
law should be so framed and construed as to reduce such causes of
disagreement and dispute to a minimum. The clearer the rule, and the more
automatic its application, the less the seed of discord is sown. This is
particularly important in the absence of provision for the compulsory
adjudication of disputes between the parties. The Convention on the
Continental Shelf does not include any clause concerning the adjudication of
boundary disputes, as envisaged at a certain stage of the work of the
International Law Commission. Several of the States parties to the
Convention are not parties to the Optional Protocol concerning the
Compulsory Settlement of Disputes, adopted by the Geneva Conference, or to
any other instrument providing for compulsory adjudication. In such
circumstances, if the Court is faced with alternative ways of interpreting a
treaty provision, it would seem not only legitimate but also advisable to
give preference to the interpretation which will have the effect of
circumscribing more narrowly the possible area of dispute. As far as Article
6 of the Convention on the Continental Shelf is concerned, there is no doubt
that the principle of equidistance is one whose application is simple and
almost mechanical, [p.257] while the special circumstances clause, because
of its very vagueness, it fraught with potential conflict. Consequently, a
narrow interpretation of the term "special circumstances" should be
preferred.
Similar considerations are even more pertinent to the fundamental question,
whether or not the provisions of the Convention, and in particular Article
6, should be recognized as generally accepted international law. If this
question is answered in the negative, and the delimitation is to be
governed by a principle of equity only, considerable legal uncertainty will
ensue, and that in a field where legal certainty is in the interest not only
of the international community in general, but also—on balance—of the States
directly concerned.
For the reasons stated above, my opinion is that the question set forth in
the Special Agreements should have been answered as follows:
1. Article 6, paragraph 2, of the Convention on the Continental Shelf of 29
April 1958 is 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 lines already agreed upon.
2. Within the meaning of Article 6, paragraph 2, no special circumstances
exist which justify another boundary than that resulting from the
application of the principle of equidistance.
(Signed) Max Sorensen |
|
