court: icj

caseName: North Sea Continental Shelf (Federal Republic of Germany/Netherlands)

publisher: International Court of Justice

title: Judgment of 20 February 1969

text: INTERNATIONAL C O U R T O F JUSTICE

type: rubrik

text: YEAR 1969

text: 1969 !O February ieneral List:

type: stycke

text: 20 February 1969

text: gos. 51 & 52

text: NORTH SEA CONTINENTAL SHELF CASES

text: (FEDERAL REPUBLIC O F G E R M A N Y , ' D E N M A R K ; FEDERAL REPUBLIC O F GERMANYINETHERLANDS)

text: Continerrtal shelf' nreas in the h'orrli Sea-Delitriitatiori ers between aa'jacerit States-Advcitirages crnd disadvarrtyye.~ of tfie equidistance method--Theory of just and equitahle apportionrrlent-ltrron~patibility of this theory with the prirzciple of the natlrral appurtenance of the shelf to the coastal State-Task of the Court relates to deliniitntioti not apportiorriiirrlt. The eqiiidistance pririciple as errrhodied irr Article 6 of the 1958 Genrva Continer~tal Shelf Coiivc~nriori-Noti-opposahility of that provision to the Federal Republic of Gerrnar1y, either contrnctrrcrlly or or1 rl~c~ bnsis of'cor1duct or estoppel.

text: Equiclistcrnce atrd the pririciple of naturnl al~prirtenarrce-Miorz of closest pro.rir~iity-Critique of that notioii as not beiilg entailed hy the pririciple of appurtenance-Firndarnerltul clzaracter of the prirrciple of the continental shelf as being the natural prolorrgatioti of the laricl territory. Legal history of cl~li~~zircrtion-Trurna~r Procla~rratioti-lrlterr1atiorial Law Comrnissioïr-1958 Geneva Conferrrrce-Acceptarlce of c,quidistance as a prrrely convetitional rule not reflc~cting or c~stnllizirrg a rule of cristornary international law-Effect in this respect of r~.serïatioru mticle of Geneva Convention-Subsequent State practice insuficient IO conïrrf the corzvt~r~tioria/ rule into a rule of c~rstor~~ary irrternatiot~al I a ~ v T h e opinio juris sive necessitatis, how tnanifsstetl.

text: Staterlient of what are the applicable pririciples and r~rles of Iaiv-Delimitation by agreement, in accordarrce with eq~ritable pririciples, raking accowit of al1 relevant circunistcinces, antiso as to give eflect to the principle of natural prolongation-Freedom of the Parties as to cltoice of method-Varioiis factors relevant to the riegofiution.

text: JUDGMENT

text: Present: Presiderlt BUSTAMANTE Y RIVERO; Vice-President K O R E ~ S K Y ; Judges Sir Gerald FITZMAURICE, TANAKA, JESSUP, MORELLI, Sir Muhammad ZAFRULLA KHAN, PADILLA NERVO, FORSTER, GROS, AMMOUN, BENG- ZON, PETREN, LACHS, ONYEAMA; Judges a d hoc MOSLER, SDRENSEN; Registrar AQUARONE.

text: In the North Sea Continental Shelf cases,

text: between

text: the Federal Republic of Germany, represented by D r . G . Jaenicke, Professor of International Law in the University of Frankfurt am Main, a s Agent, assisted by Dr. S. Oda, Professor of International Law in the University of Sendai, as Counsel, Dr. U. Scheuner, Professor of International Law in the University of Bonn, Dr. E. Menzel, Professor of International Law in the University of Kiel, Dr. Henry Herrmann, of the Massachusetts Bar, associated with Messrs. Goodwin, Procter and Hoar, Counsellors-at-Law, Boston, Dr. H. Blomeyer-Bartenstein, Counsellor 1st Class, Ministry of Foreign Affairs, Dr. H. D. Treviranus, Counsellor, Ministry of Foreign Affairs, a s Advisers,

text: and by MT. K. Witt, Ministry of Foreign Affairs, as Expert,

text: and

text: the Kingdom of Denmark, represented by Mr. Bent Jacobsen, Barrister at the Supreme Court of Denmark, as Agent and Advocate, assisted by Sjr Humphrey Waldock, C.M.G., O.B.E., Q.C., Professor of International -Law in the University of Oxford, as Counsel and Advocate, H.E. MT. S. Sandager Jeppesen, Ambassador, Ministry of Foreign Affairs,

text: MT. E. Krog-Meyer, Head of The Legal Department, Ministry of Foreign Affairs, Dr.

text: Foighel, Professor in the University of Copenhagen, MT. E. Lauterpacht, Member of the English Bar and Lecturer in the University of Cambridge,

text: 5 CONTINENTAL SHELF (JUDGMENI)

text: Mr. M. Thamsborg, Head of Department, Hydrographic Institute, as Advisers, and by Mr. P. Boeg, Head of Secretariat, Ministry of Foreign Affairs, Mr. U. Engel, Head of Section, Ministry of Foreign Affairs, as Secretaries,

text: and between

text: the Federal Republic of Germany, represented as indicated above,

text: the Kingdom of the Netherlands, represented by Professor W. Ripl-iagen, Legal Adviser t o the Ministry of Foreign Affairs, Professor of International Law at the Rotterdam School of Economics,

text: as Agent, assisted by Sir Humphrey Waldock, C.M.G., O.B.E., Q.C., Professor of International Law in the University of Oxford, as Counsel, Rear-Admiral W. Langeraar, Chief of the Hydrographic Department, Royal Netherlands Navy, MT. G. W. Maas Geesteranus, Assistant Legal Adviser to the Ministry of Foreign Affairs, Miss F. Y. van der Wal, Assistant Legal Adviser to the Ministry of Foreign Affairs, as Advisers, and by Mr. H. Rombach, Divisional Head, Hydrographic Department, Royal Netherlands Navy, as Deputy-Adviser,

text: composed as above, delivers the following J~tclgrnent: 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

text: two States concerning the delimitation, as between them, of the continental shelf in the North Sea; (c) a n original copy, signed a t Bonn on 2 February 1967 for the three Governments aforementioned, of a Protocol relating t o certain procedural questions arising from the above-mentioned Special Agreements. Articles 1 t o 3 of the Special Agreement between the Governments of Denmark and the Federal Republic of Germany are as follows:

text: "Article 1

text: (1) The International Court of Justice is requested t o decide the following question: What principles and rules of international law are applicable t o the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain t o 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.

text: Article 2

text: (1) The Parties shall present their written pleadings t o the Court in the order stated below : 1. a Memorial of the Federal Republic of Germany t o be submitted w i t h i ~ six months from the notification of the present Agreement t o the mrt; 2. a Colinter-Meinorial 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 a s 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 t o the case and the circumstances. (3) The foregoing order of presentation is without prejudice t o any question of burden of proof which might arise.

text: Article 3

text: The present Agreement shall enter into force o n the day of signature thereof."

text: Articles 1 t o 3 of the Special Agreement between the Governments of the Federal Republic of Germany and the Netherlands are as follows:

text: "Article 1

text: (1) The International Court of Justice is requested t o decide the following question : What principles and rules of international law are applicable t o the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain t o each of them beyond the partial boundary determined by the above-mentioned Convention of 1 December 1964?

text: (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.

text: Article 2

text: (1) The Parties shall present their written pleadings t o the Court in the order stated below : 1. a Memorial o f the Federal Republic of Germany t o be submitted within six months from the notification of the present Agreement t o the Court ; 2. a Counter-Memorial of the Kingdom of the Netherlands t o be submitted within six months from the delivery of the German Memorial; 3. a German Reply followed by a Netherlands Rejoinder t o be delivered within such time-limits as the Court may order. (2) Additional written pleadings may be preseiited if this is jointly proposed by the Parties and considered by the Court t o be appropriate t o the case and the circumstances. (3) The foregoing order of presentation is without prcjudice t o any question of burden of proof which might arise.

text: Article 3

text: The present Agreement shall enter into force on the day of signature thereof."

text: The Protocol between the three Governments reads as follows: "Protocol A t 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, o n the submission t o 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 t o 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 t o the International Court of Justice in accordance with Article 40, paragraph 1 , of the Statute of the Court.

text: After the notification in accordance with item 1 above the Parties will ask the Court t o join the two cases.

text: The three Governments agree that, for the purpose of appointing a

text: judge cd 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."

text: Pursuant t o Article 33, paragraph 2, of the Rules of Court, the Registrar a t 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 t o the other Members of the United Nations and t o other nonmember States entitled t o appear before the Court.

text: 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 Augusl 1968 were fixed respectively as the timelimits for the filing of the Replies and Rejoinders. Pursuant t o 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, t o sit a s Judçe ad hoc

text: in both cases. Referring t o the agreement concluded between them accarding t o which they should be considered parties in the same interest within the meaning of Article 31, paragraph 5, of the Statute, the Governments of Denmark and the Netherlands chose Dr. Max Snrensen, Professor of International

text: Law in the University of Aarhus, t o sit as Judge nd hoc in both cases.

text: By an Order of 26 April 1968, considering that the Governments of Denmark

text: and the Netherlands were, so far as the choice of a Judge ad hoc was concerned,

text: t o be reckoned as one Party only, the Court f o ~ i n d 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 a s the time-limit for the filing of a Common Rejoinder for Denmark and the Netherlands. The Replies and the Common Rejoinder having been filed within the timelimits prescribed, the cases were ready for hearing o n 30 August 1968. Pursuant t o Article 44, paragraph 2, of the Rules of Court, the pleadings and annexed documents were, after consultation of the Parties, made available t o 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 t o paragraph 3 of the same Article, those pleadings and annexed documents were, with the consent of the Parties, made accessible t o the public as from the date of the opening of the oral proceedings. Hearings were held from 23 t o 25 October, from 28 October t o 1 November, and o n 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, o n behalf of the Governments of Denmark and the Netherlands.

text: In the course of the written proceedings, the following Submissions were presented by the Parties:

text: On behnifof'the Government of the Federal Republic of Germany,

text: in the Memorials: "May it please the Court t o 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 t o a just and equitable share.

text: CONTINENTAL SHELF ( ~ M E N T )

text: 2. The method of determining boundaries of the continental shelf in

text: such a way that every point of the boundary is equidistant from the nearest

text: points of the baseline 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 m e t h d cannot be employed for the delimitation of the continental shelf unless it is established by aneement, arbitration, or othemise, that it will achieve a just and equitable apportionment of the contintntal shelf among the States concerned.

text: As t o the delimitation of the continental shelf between the Parties

text: in the North Sea, the equidistmce method cannot find application, since

text: it would not apportion a just and equitable share to the Federal Republic

text: of Germany";

text: 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 i s equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured (equidistance method) i s not a rule of customary international law.

text: (6) The rule contained in the second sentence or paragraph 2 of Article 6 of the Continental Shelf Convention, prescribing that in the absence of agreement, and unless another boundary i s justified by speciaI circumstances, the boundary shall be determined by application of the principle of equidistance, has not kcome customary international law. ( c ) Even if the rule under (b) would be applicable between the Parties, special circumstances within the meaning of that ruIe 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 shell 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 t o 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 retevant in this respect."

text: On behal/of the Government of Denmark,

text: in its Counter-Memorial: "Considering that, as noted in the Cornpromis, disagreement exists between the Parties which could not be settled by detailed negotiations, regarding the further course of the boundary beyond the partial boundary determined by the Convention of 9 June 1965; Considering that under the terms of Article 1, paragraph 1, of the Compromis the task entrusted t o the Court is not t o formulate a basis for the delimitation of the continental shelf in the North Sea as between the Parties ex aequo et bono, but t o decide what principles and rules of international law are applicable t o the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain t o 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 1 and 11 of this Counter-Memorial, May it please the Court t o 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 o n the Continental Shelf. 2. The Parties being in disagreement, unless another boundary is justified by special circumstances, the boundary between them is t o 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 t o be determined by application of the principle of equidistance indicated in the preceding Submission."

text: 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;

text: Considering that under the terms of Article 1 , paragraph 1, of the Compromis the task entrusted t o the Court is not t o formulate a basis for the delimitation of the continental shelf in the North Sea as between the Parties e x aequo et bono, but t o decide what principles and rules of international law are applicable t o the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain t o each of them beyond the partial boundary determined by the abovementioned Treaty of 1 December 1964; In view of the facts and arguments presented in Parts 1 and I I of this Counter-Memorial, May it please the Court t o 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 o n the Continental Shelf.

text: 7 . The Parties being in disagreement, unless another boundary is justified by special circumstances, the boundary between them is t o 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 t o be determined .by application of the principle of equidistance indicated in the preceding Submission."

text: 0 1 1 I ~ e l ~ a l f o f the Goveriiii~ei~t.~ of Deiitnark and the Nerherlntids, in the Common Rejoinder: "May it further please the Court t o 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 boiindary is t o be determined between the Parties o n the basis of the exclusive rights of each Party over the continental shelf adjacent t o its coast and of the principle that the boundary is t o leave t o each Party every point of the continental shelf which lies nearer to its coast than t o the coast of the other Party."

text: In the course of the oral proceedings, the following Submissions were presented by the Parties:

text: On behaifof the Go>sernnzct~t of the Federal Rep~rblic of Gerttzany, a t 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 t o a just and equitable share. 2. ( r i ) The method of deterinining 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.

text: ( c ) Even if the rule under ( b ) would be applicable between the Parties,

text: special circun~stances 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) A s t o 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 o n the application of the equidistance method, since it would not lead t o an equitable apportionment.

text: 4. Consequently, the delimitation of the continental shelf, o n which the Parties must agree pursuant t o paragraph 2 of Article 1 of the Special Agreement, is determined by the principle of the just and equitable share, based o n criteria relevant t o the particular geographical situation in the North Sea."

text: 011 behalf'ofthe Governnlent of Det~tnark, a t the hearing o n 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 t~llrtatis rrilrtandis with those of the Government of the Netherlands.

text: Oti behnlf'of the Govertitt~ent of rile Netherlatzds, a t the hearing o n 1 I November 1968 : "With regard t o 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 t o each of them beyond the partial boundary determined by the Convention of 1 December 1964. May it please the Court t o 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 o n the Continental Shelf. 2. The Parties being in disagreement, unless another boundary is justified by special circumstances, the boundary between them is t o 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 t o 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 t o be determined between the Parties o n the basis of the exclusive rights of each Party over the continental shelf adjacent t o its coast and of the principle that the boundary is t o leave t o each Party every point of the continental shelf which lies nearer t o its coast than t o the coast of the other Party."

text: 1. By t h e t w o Special Agreements respectively concluded between t h e K i n g d o m o f D e n m a r k a n d t h e Federal Republic o f G e r m a n y , a n d between t h e F e d e r a l Republic a n d t h e K i n g d o m of t h e Netherlands, t h e Parties h a v e s u b m i t t e d t o t h e C o u r t certain differences concerning "the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of themV-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. I t 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 t o delimit the further boundaries which will be involved, this task being reserved by the Special Agreements t o the Parties, which undertake t o effect such a delimitation "by agreement in pursuance of the decision requested from the . . . Courtm-that is t o say on the basis of, and in accordance with, the principles and rules of international law found by the Court to be applicable.

text: 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 t o 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 t o the Baltic Sea lies between Hanstholm a t 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 t o 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 u p 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 a t a depth of less than 200 metres, except for the formation known as the Norwegian Trough, a belt of water 200-650 metres deep, fringing the southern and south-western coasts of Norway to a width averaging about 80-100 kilometres. Much the greater part of this continental shelf has already been the subject of delimitation by a series of agreements concluded between the United Kingdom (which, as stated, lies along the whole western side of it) and certain of the States on the eastern side, namely Norway, Denmark and the Netherlands. These three delimitations were carried out by the drawing of what are known as "median lines" which, for immediate present purposes, may be described as boundaries drawn between the continental shelf areas of "opposite" States, dividing the intervening spaces equally between them. These lines are shown on Map 1 on page 15, together with a similar line, also established by agreement, drawn between the shelf areas of Norway and Denmark. Theoretically it would be possible also to draw the following median lines in the North Sea, namely United KingdomIFederal Republic (which would lie east of the present line United Kingdoml Norway-Denmark-Netherlands) ; Norway/Federal Republic (which would lie south of the present line NorwayIDenmark); and NorwayINetherlands (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.

text: 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

text: partial boundaries A-B and C-D already drawn. These further and unagreed boundaries to seaward, are shown on Map 3 by means of the

text: 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.

text: Map 1 Carte 1 ( S e e paragraphs 3 alid 4 ) ( Voir paragraphes 3 et 4 ) 200 metres line . . . . . . . . . . . . . . . . . . , , . . . . . . . . , . , . . . . . . . . . Isobathe des 200 mètres Limits fixed by the - - - - - - - - Limites définies par la 1882 Convention convention de 1882 Median lines Lignes médianes

text: Map 3 Carte 3

text: ( S e e paragraphs 5-9) ( Voir paragraphes 5-9)

text: The maps in the present Jlcdgment Les cartes jointes au présc.tit arrêt ont were prepared on the basis of docli- été établies d'apri.~ les docunzents ments submitted to the Court by the soumis à la Cour par les Parties et ont Parties, and their sole purpose is to pour seul objet d'illustrer graphiqucprovide a visual illustration of the ment les paragraphes de l'arrêt qui paragraphs of the Judgment which s'y rkfèrent. refer to them.

text: 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 al1 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.

text: 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 t o 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 t o what they viewed as being two separate and self-contained delimitations, each of which should be carried out without reference t o the other.

text: The reason for the result that would be produced by the two lines

text: B-E and D-E, taken conjointly, is that in the case of a concave or recessing

text: 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 a t different points on a concave coast, they will, if the curvature is pronounced, inevitably meet a t a relatively short distance from the coast, thus causing the continental shelfarea 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. Tn 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

text: 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 T-TT1 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 S L I C ~ 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.

text: 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 al1 the Parties took place in The Hague in February-March 1966, in Bonn in May and again iii Copenhagen in August. These also proving fruitless, it was then decided to submit the matter to the C o ~ ~ r t . In the meantime the Governments of Denmark and the Netherlands had, by means of the agreement of 3 1 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 liiie at the point marked F on Map 3. On 25 May 1966, the Government of the Federal Republic, tnking the view that this delimitation was res itzter d i o s acta, notified the Governments of Denmark and the Netherlands, by means of an aide-mémoire, that the agreement thus concluded could not "have any effect on the question of the delimitation of the German-Netherlands or the German-Danish parts of the continental shelf in the North Sea".

text: 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: ( 6 ) that after such notification, the Parties would ask the Court to join the two cases: and ( c ) that for the purpose of the appointment

text: 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 a n Order dated 26 April 1968, declared Denmark and the Netherlands t o be in the same interest, and joined the proceedings in the two cases.

text: Although the proceedings have thus been joined, the cases theinselves remain separate, a t least in the sense that they relate to different areas of the North Sea continental shelf, and that there is n o a priori reason why the Court must reach identical conclusions in regard t o them,-if for instance geographical features present in the one case were not present in the other. A t the same time, the legal arguments presented o n 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. T o 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 tiine, does not alter the character of the problem with which the Court is actually faced, having regard t o the nianner in which the Parties themselves have brought the matter before it, as described in the two preceding paragraphs.

text: In conclusioi~ as to the facts, it should bc noted that the Federal Republic has formally reserved its position, not only in regard to the Danish-Netherlands delimitation of the line E-F ( M a p 3), as noted in paragraph 9, but also in regard to the delimitations United Kingdom Denmark and United Kingdom/Netherlands mentioned in paragraph 4. I n both the latter cases the Governinent of the Federal Republic pointed out t o al1 the Governments concerned that the question of the lateral delimitation of the continental shelf in the North Sea between the Federal Repiiblic 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.

text: 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 t o the delimitation of the areas of continental shelf involved. O n this question the Parties have taken u p fundamentally different positions. O n behalf of the Kingdoms of Denmark and the Netherlands i t is contended that the whole matter is governed by a mandatory rule of law which, reflecting the language of Article 6 of the Convention on the Continental Shelf concluded a t 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 eleinent 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 t o proceed to a delimitation on an url hoc basis, al1 continental shelf boundaries must be drawn by means of an equidistance line, unless, or except to the extent t o which, "special circumstances" are recognized t o 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 t o 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", al1 that need be said a t this stage is that according t o 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, s o i t was claimed, possess this character.

text: 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 eqiially put forward t o found the contention that the delimitation o n 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".

text: 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 aiid with advantage, denies its obligatory character for States not parties to the Geneva Convention, and contends that the correct rule to be applied, a t 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 t o the length of its coastline or sea-frontage. Tt was also contended on behalf of the Federal Republic that in a sea shaped as is the North Sea, the whole bed of which, except for the Norwegian Trough, consists of continental shelf at a depth of less than 200 metres, and where the situation of the circumjacent States causes a natural convergence of their respective continental shelf areas, towards a central point situated on the median line of the whole seabed -or at any rate in those localities where this is the case-each of the States concerned is entitled to a continental shelf area extending up to this central point (in effect a sector), or at least extending to the median line at some point or other. In this way the "cut-off effect, of which the Federal Republic complains, caused, as explained in paragraph 8, by the drawing of equidistance lines at the two ends of an inward curving or recessed coast, would be avoided. As a means of giving effect to these ideas, the Federal Republic proposed the method of the "coastal front", or façade, constituted by a straight baseline joining these ends, upon which the necessary geometrical constructions would be erected.

text: 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.

text: 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 e.\: aequo et botzo (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 priiiciple of the just and equitable share was one of the recognized general principles of law which, by virtue of paragraph 1 (c) of the same Article, the Court was entitled to apply as a matter of the justifia distributiva which entered into al1 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.

text: It will be convenient t o 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. Tt considers that, having regard both to the language of the Special Agreements and to more general considerations of law relating to the régime of the continental shelf, its task in the present proceedings relates essentially to the delimitation and not the apportionment of the areas concerned, or their division into converging sectors. Delimitation is a process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination d~ noro of such an area. Delimitation in an equitable manner is one thing, but not the saine 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.

text: 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 al1 the rules of law relating to the continental shelf, enshrined in Article 2 of the 1958 Geneva Convention, though quite independent of it,-namely that the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso fucto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabe ' and exploiting its naturalÏresources. In short, there is here an inhere t right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted. Furthermore, the right does not depend on its being exercised. To echo the language of the Geneva Convention, it is "exclusive" in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it, that is its own affair, but no one else may do so without its express consent.

text: Tt 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 ail,-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.

text: But this does not mean that there has been an apportionment of something that previously consisted of an integral, still less an undivided whole.

text: 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 con) .tltional 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.

text: 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 al1 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 do facto trace such a boundary on the appropriate maps and charts, and those traced by competent cartographers will for al1 practical purposes agree.

text: 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 al1 cases in which the parties d o not agree otherwise, or in which "special circunistances" 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.

text: I t 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 thenl to be extraordinary, unnatural or unreasonable. It is basically this fact which underlies the present proceedings. The plea that, however this may be, the results can never be inequitable, because the equidistance principle is by definition a n equitable principle of delimitation, involves a postulate that clearly begs the whole question a t issue.

text: The Court now turns t o the legal position regarding the equidistance method. The first question t o be considered is whether the 1958 Geneva Convention on the Continental Shelf is binding for al1 the Parties in this case-that is to Say whether, as contended by Denniark 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, thsn 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. O n 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 t o 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.

text: The relebant 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 Conveiltion, read as follows:

text: "1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest point of the baselines from which the breadth of the territorial sea of each State is measured. 2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured."

text: The Convention received 46 signatures and, up-to-date, there have been 39 ratifications or accessions. I t came into force on 10 June 1964, having received the 22 ratifications or accessions required for that purpose (Article 1 l), 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 i t ; 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.

text: 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 coiitended that the Convention, or the régime of the Convention, and in particular of Article 6, has become binding 011 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. l t 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.

text: 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 t o become bound by the régime of the convention is to be manifested-namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at al1 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 t o do so, had not ratified or acceded, attempted to claim rights under the convention, on the basis of a declared willingness to be bound by it, or of conduct evincing acceptance of the conventional régime, it would simply be told that, not having become a party to the convention it could not claim any rights under it until the professed willingness and acceptance had been manifested in the prescribed form.

text: A further point, not in itself conclusive, but to be noted, is that if the Federal Republic had ratified the Geneva Convention, i t 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 hive beeil-a fact which at least adds to the difficulties involved by the Danish-Netherlands contention.

text: 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 conveiltional régime, by reason of past conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that régime, but also Iiad 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. l n these circumstances it seems to the Court that little usef~il purpose would be served by passing in review and subjecting to detailed scrutiny the various acts relied on by Denmark and the Netherlands as being indicative of the Federal Republic's acceptance of the régime of Article 6;-for instance that at the Geneva Conference the Federal Republic did not take formal objection to Article 6 and eventually signed the Convention without entering any reservation in respect of that provision; that it at one time announced its intention to ratify the Convention: that in its public declarations concerning its continental shelf rights it appeared to rely on, or at least cited, certain provisions of the Geneva Convention. In this last connection a good deal has been made of the joint Minute signed in Bonn, on 4 August 1964, between the then-negotiating delegations of the Federal Republic and the Netherlands. But this minute made it clear that what the Federal Republic was seeking was an agreed division, rather than a delimitation of the central North Sea continental shelf areas, and the refereiice 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 al1 of the use of the equidistance method.

text: In the result it appears to the Court that none of the elemeiits invoked is decisive; each is ultimately negative or inconclusive; al1 are capable of varying interpretations or explanations. It would be one thing to infer from the declarations of the Federal Republic an admission accepting the fundamental concept of coastal State rights in respect of the continental shelf: it would be quite another matter to see in this an acceptance of the rules of delimitation contained in the Convention. The declarations of the Federal Republic, taken in the aggregate, might at most justify the view that to begin with, and before becoming fully aware of what the probable effects in the North Sea would be, the Federal Republic was not specifically opposed to the equidistance principle as embodied in Article 6 of the Convention. But from a purely negative conclusion such as this, it would certainly not be possible to draw the positive inference that the Federal Republic, though not a party to the Convention, had accepted the régime of Article 6 in a manner binding upon itself.

text: 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.

text: Since, accordingly, the foregoing considerations must lead the Court t o hold that Article 6 of the Geneva Convention is not, as such, applicable to the delimitations involved in the present proceedings, i t 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 inentioned 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?

text: 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 91, t o which the Federal Republic was not a party, must have been based on the tacit assumption that, no agreement to the contrary having been reached in the negotiations between the Federal Republic and Denmark and the Netherlands respectively (paragraph 7), the boundary between the continental shelf areas of the Republic and those of the other two countries must be deemed to be an equidistance one;-or in other words the delimitation of the line E-F, and its validity erga ornrzes 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.

text: 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

text: delimitation of the line E-F on Map 3 could not in any case find its

text: 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. l t 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 al1 delimitations effected on an equidistance basis,-and indeed requiring delimitation on that basis unless the States concerned otherwiseagree, and whether or not the Geneva Convention is applicable. This contention must now be examined.

text: 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 opitrio juris sivr necessitatis, requisite for the formation of new rules of customary international law. In its fundamentalist aspect, the view put forward derives from what might be called the natural law of the continental shelf, in the sense that the equidistance principle is seen as a necessary expression in the field of delimitation of the accepted doctrine of the exclusive appurtenance of the continental shelf t o the nearby coastal State, and therefore as having an apriori character of so to speak juristic inevitability.

text: 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-Le., 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 haviiig 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.

text: The a priori argument starts from the position described in paragraph 19, according to which the right of the coastal State t o 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 fucto and ah itzitio without there being any question of having to make good a claim t o 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": al1 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 al1 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 reasoiis of their own, agree on another), because only such a line can be thus consistent with basic continental shelf doctrine.

text: This view clearly has much force; for there can be no doubt that as a matter of normal topography, the greater part of a State's continental shelf areas will in fact, and without the necessity for any delimitation at all, be nearer to its coasts than to any other. It could not well be otherwise: but post hoc is not propter hoc, and this situation may only serve to obscure the real issue, which is whether it follows that every part of the area concerned m~ist 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.

text: 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.,-al1 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.

text: There seems in consequence to be no necessary, and certainly no complete, identity between the notions of adjacency and proximity; and therefore the question of which parts of the continental shelf "adjacent to" a coastline bordering more than one State fall within the appurtenance of which of them, remains to this extent an open one, not to be determined on a basis exclusively of proximity. Even if proximity may afford one of the tests to be applied and an important one in the right conditions, it may not necessarily be the only, nor in al1 circumstances, the most appropriate one. Hence it would seem that the notion of adjacency, so constantly employed in continental shelf doctrine from the start, only implies proximity in a general sense, and does not imply any fundamental or inherent rule the ultimate effect of which would be to prohibit any State (otherwise than by agreement) from exercising continental shelf rights in respect of areas closer to the coast of another State.

text: More fundamental than the notion of proximity appears to be the principle-constantly relied upon by al1 the Parties-of the natural prolongation or continuation of the land territory or domain, or land sovereignty of the coastal State, into and under the high seas, via the bed of its territorial sea which is under the full sovereignty of that State. There are various ways of formulating this principle, but the underlying idea, namely of an extension of something already possessed, is the same, and it is this idea of extension which is, in the Court's opinion, determinant. Submarine areas do not really appertain to the coastal State because-or not only because-they are near it. They are near it of course; but this would not suffice to confer title, any more than, according to a well-established principle of law recognized by both sides in the present case, mere proximity confers per se title to land territory. What confers the ipso jure title which international law attributes to the coastal State in respect of its coiitinental 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 ind der 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 otl-ier State, it cannot be regarded as appertaining to that State;or at least it caniiot 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.

text: 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 t o be attributed to another, when the configuration of the latter's coast makes the equidistance line swing out laterally across the former's coastal front, cutting it off from areas situated directly before that front.

text: The fluidity of al1 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 80- 100 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.

text: The conclusion drawn by the Court from the foregoing analysis is that the notion of equidistance as being logically necessary, in the sense of being an inescapable a priori accompaniment of basic continental shelf doctrine, is incorrect. It is said not to be possible to maintain that there is a rule of law ascribing certain areas to a State as a matter of inherent and original right (see paragraphs 19 and 20), without also admitting the existence of some rule by which those areas can be obligatorily delimited. The Court cannot accept the logic of this view. The problem arises only where there is a dispute and only in respect of the marginal areas involved. The appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries, any more than uncertainty as to boundaries can affect territorial rights. There is for instance no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations (Monastery of Saint Naoum, Advisor): Opinion, 1924, P.C.I.J., Series B, No. 9, at p. 10).

text: A review of the genesis and development of the equidistance method of delimitation can only serve to confirm the foregoing conclusion. Sueh a review may appropriately start with the instrument, generally known as the "Truman Proclamation", issued by the Government of the United States on 28 September 1945. Although this instrument was not the first or only one to have appeared, it has in the opinion of the Court a special status. Previously, various theories as to the nature and extent of the rights relative to or exercisable over the continental shelf had been advanced by jurists, publicists and technicians. The Truman Proclamation however, soon came to be regarded as the starting point of the positive law on the subject, and the chief doctrine it enunciated, namely that of the coastal State as having an original, natural, and exclusive (in short a vested) right to the continental shelf off its shores, came to prevail over al1 others, being now rellected 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 al1 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.

text: 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 al1 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 arase;-practice was therefore sparse.

text: In the records of the International Law Commission, which had the matter under consideration from 1950 to 1956, there is no indication a t al1 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 t o appertain t o 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.

text: It is moreover, in the present context, a striking feature of the Commissioii's discussions that during the early and middie 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 statlis such as delimitation by agreement, by reference to arbitration, by drawing lines perpendicular to the coast, by prolonging the dividing line of adjacent territorial waters (theprinciple 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 mainlq. in favour of delimitation by agreement or by reference to arbitration.

text: 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 theq. dealt with i t . Eq~iidistance was in fact only one of four methods suggested to them, the other three being the continuation in the seaward direction of the land frontier between the two adjacent States concerned; the drawing of a perpendicular to the coast at the point of its intersection with this land frontier; and the drawing of a line perpendicular to the line of the "general direction" of the coast. Furthermore the matter was not even put to the experts directly as a question of continental shelf delimitation, but in the context of the delimitation of the lateral boundary between adjacent territorial waters, no account being taken of the possibility that the situation respecting territorial waters might be different.

text: 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 nder to this conclusion, that they had considered it "important to find a formula for drawing the iiiternational 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".

text: 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 conçenience and cartography of the kind mentioned in paragraph 22 above. Although there are no ofiicial 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.

text: A further point of some signifieance 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 viciiiity,-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.

text: 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

text: it really remained tothe end, governed by two beliefs;-namely, first, that no one single method of delimitation was likely to prove satisfactory in al1 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 al1 cases prove equitable.

text: 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.

text: 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, t o be treated in the same way. This type of case is therefore different from that of laterally adjacent States on the same coast with no immediately opposite coast in front of it, and does not give rise to the same kind of problem-a conclusion which also finds some confirmation in the difference of language to be observed in the two paragraphs of Article 6 of the Geneva Convention (reproduced in paragraph 26 above) as respects recourse in the one case to median lines and in the other t o lateral equidistance lines, in the event of absence of agreement.

text: If on the other hand, contrary to the view expressed in the preceding paragraph, it were correct t o 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.

text: 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.

text: 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 Inw, 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.

text: 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 l a u in the sense that the Convention was merely declaratory of existing rulrs". 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 Comniission, the reaction of governments to that work and the proceedings of the Geneva Conference"; and this emerping customary law became "crystallized in the adoption of the Continental Shelf Convention by the Conference".

text: 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 \\hich 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 ~ h e Commission t o 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 a n experimental basis, at most de lrge fi?rvtlda, and

text: not at al1 de lege lata o r 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 o r crystallized such a rule.

text: 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 o n signing, ratifying o r 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 s o in the case of general o r customary law rules and obligations which, by their very nature, must have equal force for al1 members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour. Consequently, it is to be expected that when, for whatever reason, rules or obligations of this order are embodied, or are intended to be reflected in certain provisions of a convention, such provisions will figure amongst those in respect of which a right of unilateral reservation is not conferred, or is excluded. This expectation is, in principle, fulfilled by Article 12 of the Geneva Continental Shelf Convention, which permits reservations to be made to al1 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.

text: The normal inference would therefore be that any articles that do not figure among those excluded from the faculty of reservation under Article 12, were not regarded as declaratory of previously existing or emergent rules of law ; and this is the inference the Court in fact draws in respect of Article 6 (delimitation), having regard also to the attitude of the International Law Commission to this provision, as already described in general terms. Naturally this would not of itself prevent this provision from eventually passing into the general corpus of customary international law by one of the processes considered in paragraphs 70-81 below. But that is not here the issue. What is now under consideration is whether it originally figured in the Convention as such a rule.

text: It has however been suggested that the inference drawii 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 t o 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, al1 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 t o ensure that they were not prejudiced by the exercise of continental shelf rights as provided for in the Convention. Another method of drafting might have clarified the point, but this cannot alter the fact that n o reservation could release the reserving party from obligations of general maritime law existing outside a n d independently of the Convention, and especially obligations formalized in Article 2 of the contemporaneous Convention on the High Seas, expressed by its preamble t o be declaratory of established principles of international law.

text: Article 6 (delimitation) appears to the Court to be in a different position. It does directly relate t o continental shelf rights as such, rather than t o matters incidental to these; and since it was not, as were Articles 1 t o 3, excluded from the faculty of reservation, it is a legitimate inference that it was considered to have a different a n d less fundamental status and not, like those Articles, to reflect pre-existing o r emergent customary law. It was however contended o n behalf of Dentnark 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 iiot evtend tu effecting a total exclusion of the equidistance principle of delimitation,-for, so it was claiined. delimitation on the basis of thai principle is implicit in Articles 1 and 2 of the Convention, in respect of which n o reservations are permitted. Hence the right of reservation under Article 6 could only be exercised in a manner consistent with the preservation of a t least the basic principle of equidistance. I n this coiinection it was pointed out that, of the no more than four reser+ations s o far entered in respect of Article 6, one at least of which was somewhat farreaching, none has purported to effect such a total exclusion o r denial.

text: The Court finds this argument unconvincing for a nuniber of reasons. In the first place, Articles 1 and 2 of the Geneva Convention d o not appear to have any direct connection with inter-Statedelimitation 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 o r adjacent States. Article 2 is equally not concerned uitli 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 t o be settled through the process of delimitation, and this is the sphere of Article 6, not Article 2.

text: cerned should, a t al1 events potentially, be of a fundaiiientally noriiicreating character such as could be regarded as forniing the basis of a general rule of law. Considered in ubstracto the equidistance principle might be said to fulfil this requirement. Yet in the particulnr form in which it is embodied in Article 6 of the Geneva Convention, and having regard t o the relationship of that Article t o other provisions of the Convention, this niust be open to some doubt. l n the first place, Article 6 is s o 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 coiistitutes an unusual preface t o what is clainied t o be a potential general rule of law. Without attempting t o 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, o r as between particular parties,-but this is not norinally 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 circunistances relative t o 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 tn 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 ndd considerably t o the difficulty of regarding this result as having been brought about (or being potentially poysible) 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 niade under Article 13 of the Conventioii-of which there is at present n o official indication-it is the Convention itself which would, for the reasoiis already indicated, seem to deny t o the provisions of Article 6 the same norm-creating character as, for instance, Articles 1 and 2 possess. 73. With respect t o the other elements usually regarded as necessary before a conventional rule can be considered t o have become LI 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, pro\ ided it included that o f States whose interests were specially affected. I n the present case however, the Court notes that, even if allowance is made for the existence of a number of States t o whom participation in the Geneva Convention is not open, o r which, by reason for instance of being land-locked States, would have n o interest in becoining parties t o 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 bc implied: the reasons are speculntive, but the facts remain.

text: 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 bras 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 bot11 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.

text: 75. The Court must now consider whether State practice in the inatter of continental shelf delimitation has, subsequent to the Geneva Convention, been of such a kind as to satisfy this requirement. Leaving aside cases which, for various reasons, the Court does not consider to be reliable guides as precedents, such as delimitations effected between the present Parties themselves, or not relating to international boundaries, some fifteen cases have been cited in the course of the present proceedings, occurring mostly since the signature of the 1958 Geneva Convention, in which continental shelf boundaries have been delimited according to the equidistance principle-in the majority of the cases by agreement, in a few others unilaterally-or else the deliniitation was foreshadowed but has not yet been carried out. Amongst these fifteen are the four North Sea delimitations United KingdomJNorway-Denmark- Netherlands, and NorwayJDenmark already mentioned in paragraph 4 of this Judgment. But even if these various cases constituted inore than a very small proportion of those potentially calling for deliniitation in the world as a whole, the Court would not think it necessary to enuinerate or evaluate them separately, since there are, n priori, several grounds which deprive them of weight as precedents in the present context. 76. T o 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 Con~entioii. 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 Iiand, which were not, and have not become parties to the Convention, the basis of their action can only be problematical and must remain entirely speculative. Clearly, they were not applying the Convention. But from that n o inference could justifiably be drawn that they believed themselves t o 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 nunierous 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 t o be evidence of a belief that this practice is rendered obligatory by the existence of a rule of Iaw requiring it. The need for such a belief, Le., 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 t o what amounts to a legal obligation. The frequency, or even habitua1 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 considcrations of courtesy, convenience o r tradition, and not by any sense of legal duty.

text: 78. In this respect the Court follows the view adopted by the Permanent Court of International Justice in the Lotus case, a s stated in the following passage, the principle of which is, by analogy, applicable almost word for word, nzutatis mutandis, t o the present case (P.C.I.J., Series A , No. 10, 1927, a t p. 28): "Even if the rarity of the judicial decisions t o be found . . . were sufficient t o prove . . . the circunistance alleged . . ., it would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves a s being obliged to d o so; for only if such abstention were based o n their being conscious of having a duty t o abstain would it be possible t o speak of an international custom. The alleged fact does not allow one t o infer that States have been conscious of having such a duty; on the other hand, . . . there are other circuinstances calculated to show that the contrary is true." Applying this dictum t o the present case, the position is simply that in certain cases-not a great nuinber-the States concerned agreed to draw o r did draw the boundaries concerned according to the principle of equidistance. There is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so-especially considering that they might have been motivated by other obvious factors. 79. Finally, it appears that in almost al1 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, al1 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.

text: 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 insuficient for the purpose.

text: 82. The immediately foregoing conclusion, coupled with that reached earlier (paragraph 56) to the effect that the equidistance principle could not be regarded as being a rule of law on any a priori basis of logical necessity deriving froin the fundamental theory of the continental shelf, leads t o 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 deterinined not t o be obligatory in any event, it ceases t o be legally necessary t o prove the existence of special circumstances in order t o justify not using that method.

text: 83. The legal situation therefore is that the Parties are under no obligation t o apply either the 1958 Convention, which is not opposable t o the Federal Republic, o r the equidistaiice method as a mandatory rule of customary law, which it is not. But as between States faced with a n issue concerning the lateral delimitation of adjacent continental shelves, there are still rules and principles of law t o 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 t o be as a n 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 t o each Party, a n d in consequence is not bound to prescribe the methods t o be employed for the purposeâ of such a delimitation. The Court has t o indicate t o the Parties the principles and rules of law in the light of which the methods for eventually effecting the delimitation will have t o be chosen. The Court will discharge this task in such a way as to provide the Parties with the requisite directions, without substitutiiig itself for them by means of a detailed indication of the methods t o be followed and the factors t o be taken into account for the purposes of a delimitation the carrying out of which the Parties have expressly reserved to themselves. 85. I t emerges from the history of the development of the legal régime of the continental shelf, which has been reviewed earlier, that the essential reason why the equidistance method is not to be regarded as a rule of law is that, if it were to be compulsorily applied in al1 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 inatter of delimitation; those principles being that delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived a t in accordance with equitable principles. On a foundation of very general precepts of justice and good faith, actual rules of law are here involved which govern the delimitation of adjacent continent shelves-that is to say, rules binding upon States for al1 delimitations;-i "\, .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 appllcation of equitable principles, in accordance with the ideas which have always underlain the development of the legal régime of the continental shelf in this field, namely: ( a ) the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it; (6) the parties are under an obligation to act in such a way that, in the particular case, and taking al1 the circumstances into account, equitable principles are applied,-for this purpose the equidistance method can be used, biit 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.

text: 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, inust be considered as having propounded the rules of Iriw in this field, but also that this obligation merely constitutes a special application of a principle which underlies al1 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 t o the direct and friendly settlement of such disputes between the parties" (P.C.I.J., Series A, No. 22, at p. 13). Defining the content of the obligation to negotiate, the Permanent Court, in its

text: Advisory Opinion in the case of Railicay Trafic between Litll~raniu at7d 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 coiicluding agreements", even if an obligation to negotiate did not imply an obligation t o reach agreement (P.C.I.J., Series AjB, 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.

text: 88. TheCourt 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 Judgmetzts of the Admitzistratii7e Tribunul o f 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 e x aequo et bono. Tt 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 e x 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 t o depart from principles of law. The apparent intention was to Say that, as the precise determination of the actual amount to be awarded could not be based on any specific rule of law, the Tribunal fixed what the Court, in other circumstances, has described as the true measure of compensation and the reasonable figure of such compensation (Corfu Channel case, Judgment of December 15th, 1949, Z.C.J. Reports 1949, p. 249)." 89. It must next be observed that, in certain geographical circuinstances 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 unreasonctble 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 uiiquestionably 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 eqiiidistance method in the present instance, as the sole method of delimitation, the question arises whether there is any necessity to employ only one method for the purposes of a given delimitation. There is no logical basis for this, and no objection need be felt to the idea of effecting a delimitation of adjoining continental shelf areas by the concurrent use of various methods. The Court has already stated why it considers that the international law of continental shelf delimitation does not involve any imperative rule and permits resort to various principles or methods, as may be appropriate, or a combination of them, provided that, by the applicntion of equitable principles, a reasonable result is arrived at.

text: 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

text: 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 o r comparable to that given the other two. Here indeed is a case where, in a theoretical situation of equality within the same order, a n 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 a n 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 al1 can lead to relative injustices. This argument has in effect already been dealt with. It can only strengthen the view that it is necessary t o 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 a n 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 al1 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 t o 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, o r different methods if they so prefer. 93. I n 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 al1 such considerations that will produce this result rather than reliance on one to the exclusion of al1 others. The problem of the relative weight t o be accorded t o 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 t o the geological. others t o the geographical aspect of the situation, others again t o the idea of the unity of any deposits. These criteria, though not entirely prccisc, can provide adequate bases for decision adapted t o 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 a n important element for the application of its legal régime. The continental shelf is, by definition, an area physically extending the territory of niost coastal States into a species of platforni which has attracted the attention first of geographers and hydrographers and then of jurists. The iinportance of the geological aspect is empliasired by the care which, at the beginning of its investigation, the International Law Con-iniission took t o acquire exact information as to its characteristics, as can be seen in pnrticular from the definitions to be found on page 131 of Volume 1 of the k'c~trrhook of' tlre /~~tenrcctionnl Lnbc. Comtnissio~z for 1956. The appurtenance of the shelf to the countries in front of whose coastlines it lies. is therefore LI 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 iii fact prolong. 96. The doctrine of the continental shelf is a rccent instance of encroachinent on maritime cxpanses which, during the greater part of iiistory, appertained to no-one. The contiguouj zone and the continental shelf are in this respect coriczpts of the same kind. In both instances the principle is applied that the land dominates the sen; it is consequently necessary to examine closely the gcographicnl configuration of the coastlines of the countries whose continental shelves are to be delimited. This is one of the rensons why the Court does not consider that markedlq pronounced configurations can bz ignoreci; for, since the land is the legal source of the power which a State inay cvcrcise over territorial extensions to seaward, it must first bc clearly established what features d o in fact constitute such extensions. Above al1 is this the case when what is involved is n o longer areas of sea, such as the contiguous zone, but stretches of submerged land; for the legal régime of the continental shelf is that of a sail and a subsoil, two words evocativc 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 abiricent States is the unity of any deposits. Tlic natural resourccs of the siibsoil of the sea in those parts which consist of continental shelf are the very object of the legal régime established subsequent t o the Truman Proclamation. Yet it frequently occurs that the saine 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 iminediately arises on account of the risk of prejudicial o r wasteful exploitation by one or other of the States concerned. T o look n o farther than the North Sea, the practice of States shows how this problem has been dealt with, and al1 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 o r 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 sol vin^ " it. 98. A final factor t o 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 t o establish the necessary balance between States with straight, and those \vith markedly concave o r convex coasts, o r 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, o r in soine cases a series of such lines. Where the parties mis11 t o employ in particular the equidistance method of delimitation. the establishment of one o r more baselines of this kind can ~ l a v ,

text: a us'eful part in eliminating o r 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 t o lead t o a n overlapping of the areas appertaining to them. The Court considcrs that such a situation must be accepted as a given fact and resolved either by an agreed, o r failing that by an equal division of the overlapping areas, o r by agreements for joint exploitation, the latter solution appearing particularly appropriate when it is a question of preserving the unity of a deposit.

text: 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 t o the general legal régime of the continental shelf, have been examined for that purpose only. This régime furnishes a n 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 a t the origin of the theory, whose special features reflect that origin. It would therefore not be in harmony with this history t o over-systematize a pragmatic construct the developments of which have occurred within a relatively short space of time.

text: 101. For these reasons,

text: by eleven votes t o six,

text: finds that, in each case,

text: (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 al1 circumstances obligatory; (C) the principles and rules of international law applicable t o 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 al1 the relevant circumstances, in such a way as to leave as much as possible t o each Party :ill 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 réginie of joint jurisdiction, user, o r exploitation for the zones of overlap o r any part of them;

text: (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.

text: Judge Sir Muhammad ZAFRULLA KHAN makes the following declaration : 1 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 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 deliinitation 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". ln 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. 1 am in agreement with the reasoning of the Judgment on both these points. But, 1 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:

text: ". . . 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 Iacking in any definition of these crucial elements as i t 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, iiow become more defined, both as to the rights of the coastal State and the applicable régime, crystallized in the adoption of the Continental Shelf Convention by the Conference; and that the numerous signatures and ratifications of the Convention and the other State practice based on the principles set out in the Convention had the effect of consolidating those principles as customary law."

text: If it were correct that the doctrine of the coastal State's exclusive rights over the adjacent continental shelf was in process of formation

text: 56 CONTINENTAL SHELF (DECL. BENGZON)

text: Judge BENGZON makes the following declaration : 1 regret my inability to concur with the main conclusions of the majority of the Court. T 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.

text: President BUSTAMANTE Y RIVERO, Judges JESSUP, PADILLA NERVO and AMMOUN append Separate Opinions to the Judgment of the Court.

text: Vice-President KORETSKY, Judges TANAKA, MORELLI, LACHS and Judge ad hoc SDRENSEN append Dissenting Opinions to the Judgment of the Court. (Initialled) J. L. B.-R. (Initialled) S. A.

title: North Sea Continental Shelf (Federal Republic of Germany/Netherlands)