COUNTER-MEMORSUBMITTEDBY
THE GOVERNMENTOF THE KINGDOMOF
THENETHERLANDS
Wderal Republic of Germany/Netherlands)
I. This Cuunter-hlemorial is submitted to the international Court of
the duties of President of the Court under Article 12 of the Rules of Court,
the Federal Republic of Germany for the submission to the Internationalial
Parties, of the continental shelf in the North Sea.elimitation, as between the
thoftlay daim to areas of the continental shelf beneath the North
dtoof the Fawhich, naturally, are considered by thethe Netheriands than they
has ~Court because the Federal Republic, whileinvoking the recog- dispute
dect~tcknuwltdgetldelimit hsr ~untineiitalsadjaccnt to its cnast, hnsf the
Cnnfcrcnw in ~hatsaii-icCuaventinn. And nuw the crux of the ilis~iutebcfor~
incnt's uwn ircttinCaveboriu,is due to thc Feden.l Kepublis
accwdfirice iviththc pnerally rccognized priiiciples and riiles of iiitcrnlitional
l3.tcnnvothe Court, and Iiavingregard to Article 42 of the
parts asthe Mernorial submittedon21 August 1967bythe Agent for the Goverii-
appeared necessary to observe two guiding principles. On the one hand theas
pardArticle 42 of the Rules of Court, which prescribes that a counter-ond
faccs stated in the memorial, and observations concerning the statement of
forth before the Court the opinion of the Kingdom of the Netherlands on thet308 NORTH SEACONTINENTAL SHELF
matter in dispute. This results from Article 2ofthe above-mentioned Special
Agreement, wherein the Parties to the dispute, pursuant to the provisions of
Article 37 of the Rula of Court, have agreed that, without prejudice to any
question of burden of proof, a Memorial shall be submitted to the Court only
by the Federal Republic of Germany, and a Counter-Memorial onfy by the
Kingdom of the Netherlands.
Consequently, the present Counter-Mernorial contains:
in Part 1,an exposition of the relevant facts and of the history of the dispute,
supplementing and correcting the exposition given in the Memorial of the
German Federal Government ;
in Part II, the legal considerations which in the opinion of the Government
of the Kingdom of the Netherlands are of importance for the present case,
and the Netherlands observations on the legal position taken by the German
Federal Government in Part II of the Memorial;
in Part III, the submissions to the Court asto what principles and rules of
international law are applicable to the delimitation, as between the Parties,
of the areas of the continental shelf in the North Sea which appertain to
each of them.
4, The Memorial contains numerous references to writers, which references
wil1,onlyoccasionally be commented upon in this Counter-Memorial. Several
quotations, however, appear out of context. Annex 16 will illustrata number
of instanceswhere quotations s&m to be incomplete. COUNTER-MEMORIAL OF THENETHERLANDS 309
PART 1. FACTS AND HISTORY OF THE DISPUTE
CHAPTER 1
THE CONTINENTAL SHELF BENEATH THE NORTH SEA
5. The geographical description of the North Sea as given in paragraph 7
of the Memorial of the Federal Republic of Germany does not call for any
particular comment. It should, however, be noted that, contrary to the state-
ment in paragraph 7 of the Mernorial, test dfillings in the subsoil under the
North Sea had been made before 1963 and were not carried out directly or
merely as a result of the discoverof the natural gas fieldnear Slochteren.This
subject will be reverted to in detail in Chapter 2 of this Part of the Counter-
Memorial (see infra, para. 11).
In order to provide the Court with a convenient geographical view of the
North Sea the map enclosed inside the back cover of the Counter-Mernorial
(Annex 17) shows, among other things, those continental shelf boundaries on
which agreement has already been achieved-in al1cases on the basis of equi-
distance-as well as the boundaries of the North Sea under the North Sea
Fisheries Convention of 1882 l.
6. With reference to paragraph 8 of the Memorial, it must be remarked that
the Geneva Convention on the Continental Shelf of 29 Aprjl 1958 does not
embody the concept of a singlecontinental shelfto be dividedamongthecoastal
States, but, on the contrary, recognizes the exclusive sovereignrights of every
single State over the seabedand subsoil of the submarine areas adjacent to its
coast, the boundaries of these areas being determined by Articles 1 and 6 of
the said Convention. lt would, therefore, seem somewhat misleading touse the
terminology "the continental shelf of the North Sea"; the title of the present
Chapter, accordingIy, refers to the continental shelf beneath the North Sea.
7. Admittedly, the delimitation of continental shelf areas by application of
the equidistance principle results, as far as the continental shelf beneath the
North Sea jsconcerned, in different total areas appertaining to the various
States adjacent to the North Sea. Indeed, the very legal basis of the sovereign
rights of a coastal State over the continental shelfarea adjacent to its coast being
the concept of contiguity or propinquity, it is only to be expected that some
States, by reason of their geographic location, are in a better position in this
respect than other States. Thus, while al[ States have an equal right to use the
high seas for the purposes of navigation, fishing and other lawful activities,
only States that border on the seacan havesovereignrights (whichare exclusive)
in respect of the natural resources of the seabed and subsoil adjacent to their
coasts. Furthermore, while the submarine areas adjacent to some coastal
States are, or, very near the coast, become, so deep that they are, for the time
being, not exploitable, other coastal States border on large areas of shallow
sea. Finally, some submarine areas, shallow or not, are richer in natural
resources than others. But then again, geographical location, including the
l Convention for regulatingthe policeof theNorth Sea Fisheries,concludedat
The Hague, 6 May 1882; text printedinDe Martins'Nouveau Recueil Généradle
rraitPs, Second SerieVol. 9, p. 556.310 NORTH SEA CONTINENTAL SHELF
configuration of the coast, always brings benefits and disadvantages. For a
srnaIland densely populated country like the Netherlands, almost 50 per cent.
of whoseterrajirmalies below sea-level,itis certainly noan undivided blessing
to have a very long coastline and a direct "frontage" with the North Sea!
8. Furtherrnore, the staternent in paragraph 8 of the Memorial to the effect
that "the North Sea represents a special case" is unfounded. Chapter 4 of the
Second Part of the Counter-Mernorial will go further into this subject (see
infra, paras. 127etseq.).
9. With regard to paragraph 9 of the Memorial the following facts are
submitted :
(a)The angle of the German North Sea coast isapproximately 100'.
(6) Neither the Federal RepubIic of Germany nor the Kingdom of the Nether-
lands have, sofar,established straight base-lines along those parts of their
coasts which are involved in the determination of the boundary on the
continental shelf. There is no dispute between the Parties on this particular
aspect of the delimitation.
(c) The Island of Heligoland is of no significanceto the present disputesince
it exercises no material influence, if indeeany influence at ali,,on the
equidistance line. COUNTER-MEMORIAL OP THE NETHERLANDS
CHAPTER 2
THE ATTITUDE OF TWE KINGDOM OF THE NETNERLANDS
IN RESPECT OF THE CONTINENTAL SHELF
10. Not only does the Netherlands border on the North Sea, but a con-
siderable part of her territory has even, in the course of time, been reclaimed
from the sea. The history of the "LowCountries by the Sea" has been marked
by constantand multifariauscontacts with the sea.On the one hand, there is
the incessant struggle to reclaim land, to protect it against the water and to
prevent salt water from causing salinization of the soilA few figures will
illustrate the relative position of land and water in the Netherlands:
acres
total area of the Netherlands (1967) 10,090,000
total water area (water surfacemore than 6 m. in width) 1,840,000
--
total land area 8,250,000
land subject to flooding if there were no sea or river dykes 4,200,000
land lost since the 13th century 1,400,OOO
land reclairned since the 13th century (up till 1900) 1,280,000
land reclaimed since 1900 (up till 1967) 300,000
On the other hand, there are the unrelenting efforts to make sea and its
resources serve the national economy-through shipping, fishing,etc.-sothat
this country, which, after such miniature States as Monaco and Vatican City,
is the most denselypopulated country in the world, may provide its population
with the necessary means of subsistence, which are not to be found in its own
soi1and subsoil.
The foregoing may explain the considerable interest in such matters as the
structure of the seabed and subsoil of the North Sea, which the Netherlands
hashadfromearliest timesand must needshave in the future ifsheisto continue
to exist. Sedimentological investigations in the North Sea were bepn in 1933
with the assistance and financial backing of the Netherlands Ministry of
"Waterstaat". On government instructions gravimetric research in the North
Sea was conducted for the first time in 1938from a Netherlands subrnarine by
Professor F. A. Vening Meinesz. A general gravimetric survey of the whole
North Sea area was carried out from 1955to 1957with the assistance of the
Royal Netherlands Navy.
11. Apart from one well in 1938(which demonstrated for the first time the
presence of oil in the western part of the Netherlands), Netherlands and foreign
oil companies have drilled some 30 deep boreholes with a total drilled footage
of 185,875feet, on NetherIands territory, namely in a strip along the North Sea
coast and in the Wadden Islands. In 1956 the NederlaradseAardolie Maat-
schappij (N.A.M.) started detailed gravity measurements in the North Sea,
outside territorial waters. Since 1959the N.A.M. has been exploring with the
seismicmethod in the North Sea throughout the area which, on the basis of the
equidistance principle,constitutes the Netherlands part of the continental shelf;
since 1960, these activities have been especially concentrated on the northern
part and up to the median lines which separate the Netherlands part from the
German and Danish parts of the shelf. The above-mentioned exploration has
continued to date.312 NORTH SEA CONTINENTAL SHELF
In 1961the first wellwas drilled in the North Sea. The operation was carried
out by the N.A.M. in the Netherlands territorial sea off Kijkduin. It shouldbe
noted that, besides other borings in territorial waters, the N.A.M. in 1962
made three borings on the continental shelf,representing a total drilled footage
of 23,302feet.
Particularly after the discovery in 1959of the "Slochteren" natural gas field
in the province of Groningen, expectations grew that the continental shelf in
the North Sea might contain this minera1in commercial quantities. In anticipa-
tion of the entry into force of NetherIandslegislationconcerningthecontinental
shelf (seeinfra,para. 15),requests from various companies for permission to
conduct seismic operations have been granted. In addition to two licences
granted to the N.A.M., in virtue of which.the said Netherlands Company has
been able to carry out the above-mentioned exploration activities since 1959,a
total of 24 licences have been granted during the penod from August 1962to
1966to about 19cornpaniesor groups of cornpaniesrepresenting rnainlyforeign
interests (Arnerican, Belgian,British, French, German and Italian), which have
thus been given the opportunity to prepare for drilling activities on the Nether-
lands part of the continental shelf. The licences in question cover al1of thal
part of the continental shelf which cornesunder the jurisdiction of the Nether-
lands on the basis of the equidistance principle.
After the Netherlands legislation in respect of the continental shelf had corne
into effect inearly 1967,reconnaissance licencesweregranted on the basis of the
new Act on seven occasions. The licenceswent to three American, one Nether-
lands and one French applicants.
Under the said Iegislation 20 applicants, representing 63 companies, sub-
mitted applications for prospecting licences on 15 November 1967.
12. In October 1957 the Netherlands Governrnent, in a ietter addressed to
the Secretary-General of the United Nations, commented on the draft articles
of the Law of the Sea, drawn up by the International Law Commission at its
eighth session (1956).The following passage from the Netherlands comrnents
may be cited here:
"Continental Shei'f
Article 72
As in thecase of the boundaries of the territorîaI s.a..the Netherlands
Government supports the principles embodied in article 72 with regard to
the delimitation of the continental shelf. The Netherlands Government
would like to emphasize the necessity of an internationally accepted rule
for these delirnitations, together with adequate safeguards for impartial
adjudication in the case of disputes, as it will not be sufficient simply to
express the hop that the States concerned will reach agreement on this
matter."
13. During the Geneva Conference on the Law of the Sea in 1958, the
Netherlands delegation voted in favour of, inter aliaA ,rticle 6 (Art. 72 of the
draft) of the Convention on the Continental Shelf.
14. The Convention on the Continental Shelfwas ratified by the Kingdom of
the Netherlands on 18 February 1966 without any reservation. Seeing that
certain other States had for their part made reservations, the Government of
the Kingdom deemed it necessary to comment on some of those reservations.
In this connection mention should be made of the Venezuelan and French
reservations to Article 6, the contents of which are reproduced in Annex 3 of
this Counter-Memorial. The Netherlandç Government declared, when deposit-
ing their instrument of ratificatiointer dia: COUNTER-MEMORIAL OF THE NETHERLANDS 313
"... that they do not find acceptable ... the reservations made by the
Government of the French Republic to Articles .. ,6, paragraphs 1 and 2.
The Government of the Kingdom of the Netherlands reserve al1rights
regarding the reservations in respect of Article 6 made by the Govern-
ment of Venezuelawhen ratifying the present Convention" (full text in
Annex 3 III).
It should here be stated that, contrary to the supposition expressedin the Iast
sentence of paragraph 55of the Memorial (p. 58,supra), under general interna-
tional law the declaration cited, like other declarations rejecting a reservation
made to an international convention, does indeed have legal eRect. Firstly,
the declaration has an incontestable effect upon the conventional relation be-
tween the party that formulated the reservation and the party that objected to
it. Secondly, the declaration deprives the reservation of the effectwhich an ex-
press or implied acceptanm of the reservation otherwise could have upon the
interpretation of the conventional provision affected by it.
15. In paragraphs 10 and 15,the Memorial of the Federal Republic correctly
mentions the Netherlands "Continental ShelfMiningAct" (Actof23September
1965regulating the exploration for and the production of rninerals in oron the
part of the continental shelf situated under the North Sea) as the iïrst Nether-
lands legislative rneasure pertaining to the exerciseof sovereign rights over the
continental shelf. However, this Act did not "claim" any rights, as is stated in
paragraph IO of the said Memonal, but simply enacted regulations for the
realization of the sovereign rights already vested in the Kingdom under inter-
national law.
Nor isparagraph 15 of the Mernorial entirely correct without further ex-
planation. It is true that the Continental Shelf Mining Act does not definethe
boundaries of the Netherlands part of the shelf,but it defines the Netherlands
shelf asfollows in Article1, paragraph 1:
"For the purposes of the provisionslaid down in or pursuant to this Act,
the following expressions shall have the meanings hereby respectively
assigned to them:
'continental shelf' means that part of the seabed and the subsoil thereof
situated under the North Sea in respect of which the Kingdomhas sover-
eign rights in accordance with, interaliat,he Convention on the Con-
tinental Shelf concluded at Geneva on 29 April, 1958 (Netherlands
Treaty Series 1959,No. 126)and whichliesseawards of the line determined
in pursuance of para. 2." (Translation.)
(The dividing line determjned under para. 2 approximately coincides with tlie
outer lirnits of the territorial sea.)
Moreover, when this Act was in the preparatory stage, a rnap of the North
Sea showing the boundaries of the Netherlands continental shelf (see fig. 1)
was submitted to the States GeneraI on 19February 1965and reproduced in the
Parliamentary Documents (1964165-7670,nr. 7). Apart from some additions it
isthis same map, showing the same outer-limits of the Netherlands continental
shelf, that was reproduced later in the Bulletin of Acts, Orders and Decrees,
together with the Royal Decree (nat a Govemment Resolution) of 27 January
1967referred to in the Memorial (seefig. 2).
16. In the absence of special circumstances the Netherlands Government,
when preparing or takingmeasures relating to the continental shelf under the
North Sea, has been able to baund the area of application of these measures314 NORTH SEA CONTINENTALSHELF
Figure 1(February 1965)Figure 2 (January 1967)316 NORTH SEA CONTMENTAL SHELF
by the lines which, drawn on the basis of the principle of equidistance, form
the delimitation in space of the sovereignrights which the Kingdom, by virtue
of international law, has over that shelf. As already stated in this Chapter, the
Netherlands Government has adopted that basis in particular when granting
licences (see supra, para. 11) and when preparing the Bill, submitted to the
States General in June 1964, that was later to becorne the Continental Shelf
Mining Act (see supra, para. 15).
At one place, however, a special circumstance does in fact prevail that, in
the opinion of theNetherlands Government, affectsthe position oftheboundary
line dividing the continental shelf: at the place where the Ems, flowing into the
North Sea, forms the boundary between the territory of the Kingdom and that
of the Federal Republic, there is, for historical and other reasons, no agreed
boundary line between the two States. This circumstance has an effect on the
starting-point of the line that constitutes the eastern boundary of the Nether-
lands part of the continental shelf. This special circumstance, which will be
reverted to in Chapter4 of this Part (seinfrapara. 29), prompted the Nether-
lands Government to rnake known its standpoint on the said starting-pointto
the German Federal Government in a Note Verbale on 21 June 1963.The text
of the Note Verbale is reproduced in Annex 2 to the Memorial of the Federal
Republic. The English translation, embodied in Annex 2 A to the Memorial
(p.97,supra), isnot entirelycorrect, namely wherethe words "Hoheitsrechte zur
Geltung bringt" have ben translated as "(it) claims sovereign rights". The
Netherlands Government did not claim sovereign rights; its statement con-
cerned the part of the continental shelf where it exercises the sovereign rights
enjoyed in virtue of international Iaw. A corrected translation of the Nether-
lands Note Verbale is attached to this Counter-Mernorial as Annex 8
(p. 378, infra).
17. However, also at places whereno specialcircurnstancesentail a departure
from the principle ofequidistance,there are advantages to be had in establishing
the boundary line in agreements with the other States whose rights over the
continental shelf adjoin, territorially, those of the Kingdom. Article 6 of the
Geneva Convention of 1958 (Counter-Memorial, Annex 1, p. 377, infra) inti-
mates that the establishment of boundariesby agreement isto be preferred; fur-
thermore, it is desirable to avoid uncertainty as regards the exact course of the
boundary and to prevent the course of the boundary from being subject to auto-
matic displacementsshould natural or artificialchanges be madein the baselines
that determinetheequidistanceIine. TheNetherlands Government ha,therefore,
shown itself prepared to collaborate in the realization of agreements with each
of the other States whose part of the continental shelf adjoins the Netherlands
part. These endeavours have had the following results:
(a) With the Federal Republic of Germany, a partial delimitation: Treaty
concerning the lateral delimitation of the continental shelf near the Coast,
concluded at Bonn on 1 Decernber1964.(Textand translation in Memorial,
Annexes 3and 3A,pp. 98-101,supra.) For the significanceofthis Treaty and
the negotiations which led up to its conclusion, reference should be made
to paragraphs 28, 29 and 30 below.
(b) With the United Kingdom of Great Brila~nand Northern Ireland:Agree-
ment relating to the delimitation of the continental shelf under the North
Sea between the two countries, concluded at London on 6 Qctober 1965.
(Text in Memorial, Annex 9, pp. 116-120,supra.) The dividing line agreed
uponis based on the princjple of equjdistance.
(c) With the Kingdom of Belgiurn,negotiations were conducted during 1965. COUNTER-MEMORIAI , F HE NETHERLANDS 317
These led, in the first instance, to a statement by the Belgian Government,
in which it affirmed:
"the concurrence of opinion between the two countries on the principle
of equidistance and the practical application thereof" (translation),
and in which it further declared that it had no objections to the point of
intersection of the dividing lines between the Belgian, Netherlands and
British parts of the continental shelf, as calculated on the basis of the
principle of equidistance by the Netherlands and the British Govemment.
The statement in question is contained in a Note dated 15 September1965
from the BelgianEmbassy at The Hague, the text and translation of which
are appended to the Counter-Mernorial as Annexes 13and 13A (pp. 385-
387, infra).
The negotiations with Belgium also resulted, at the end of 1965, in
agreement, in principle, as to the exact course of the dividing Iine between
the two parts of the continental shelf. This lateral delimitation is based on
the principle of equidistance. For reasons connected with Belgiandomestic
legislation, ashas already appeared from the above-mentioned Note of
15 September 1965, the conclusion of this Agreement has so far been
deferred l.
(d) With the Kingdom of Denmark:Agreement concerning the delirnitatian
of the continental shelf under the North Sea between the two countries,
concluded at The Hague on 31 March 1966. (Text and translation in
Mernorial, Annexes 14 and 14 A, pp. f33-138, supra.) The dividing line
agreed upon is based upon the principle of equidistance.
18. The Netherlands Government, in its domestic legislation as wellas in its
agreements with other States, takes into account the possibikityof the presence
of single geologicalstructures extending across the dividing line betweenparts
of the continental shelf under the North Sea. Article 11 of the Continental
Shelf Mining Act mentioned in paragraph 15 above provides in subpara-
graph 2 lb): .
"2. To a production licence for a minera1 may aIso be attached the
conditions that, if in rnaking use of that licence oa prospecting licence
the holder has proved the presence of that mineral in an economically
producible quantity, the holder shall:
(a) .. .
(b) if that mineral is present in a deposit which, in the opinion of Our
Minister, extends beyond the boundary of the relevant part of the
continental shelf, render the CO-operationrequested by Our Minister
in concluding an agreement between the holder and the Party entitled
to produce that mineral in an adjoining area, under which agreement
production shall be effected in joint consultation." (Translation.)
On the same subject an Agreement wasconcluded with the United Kingdom
of Great Britain and Northern Ireland on 6 October 1965. This Agreement
gives rules for cases in which the part of a geological structure or field which
is situated on one side of the dividing line proves to be exploitable from the
other side of the line. The English text of the Agreement is appended to this
Counter-Mernorial as Annex 12.
In the meantime,on 23 October 1967,a Billhas beensubmittedto the Belgian
Parliament, The Bill and Exposédes Motifs,whichillustrate once again that the
in AnnexGo14.nmentbases itselupon the principleof equidistance.are reproduced NORTH SEA CONTINENTAL SHELF
CHAPTER 3
THE ATTITUDE OF THE FEDERAL REPUBLIC OF
GERMANY IN RESPECT OF THE CONTINENTAL SHELF
19. At the 1958 Geneva Conference the Federal Republic of Germany
submitted a memorandurn to the Fourth Committee (the Continental Shelf
Cornmittee) advocating freeutilization for everyoneofthenatural resources of
the continental shelf, reseming only certain controliing rights to the coastal
State closest to the installations in question.
20. The Federal Republic's proposa1 received no support, however, from
the other States participating in the Conference, the preponderant view being
that an exclusive right to the natural resources of the shelf was vested in the
coastal State.
21. The position of the Federal Republic at the various votes taken during
the Conference presents the following picture:
(a) at the vote taken inthe Fourth Committee (the Continental Shelf Corn-
rnittee) on Article 6 (at that time Art. 72) the Federal Republic voted in
favour thereof (United Nations Conferenceon the Law of the Sea, Vol. VI,
p. 98).
After the vote the representative of the Federal Republic said: "that, in
view of the inexact nature of the outer limit of the continental shelas
defined by Article 67, his delegation would havepreferred the adoption of
the Venemelan amendment '.When that amendment was rejected, the
delegation of the Federal Republic of Germany had accepted the views of
the rnajority of the Committee, subject to an interpretation of the words
'specialcircumstances' as meaning that any exceptional delimitation of
territorial waters would affect the delimitation of the continental shelf"
(ibid.para. 38).
(6;) At the ninth plenary meeting on 22 April 1958, Article 6 (at that time
still Art. 72) was adopted. The Federal Republic of Germany did not
vote against the Article and it seems reasonable to assume that she was
notamong those abstaining.
(cl At the eighteenth plenary meeting on 26 April 1958the Convention as a
whole was adopted. The Federal RepubIic of Germany voted against for
reasons not connected with Article 6, a matter that will be further dealt
with below (see idru, para. 73) (United Nations Conferenceon theLaw of
the Sea, Vol.II,p. 57).
Wavingthus voted against the adoption of the Convention on the Continental
Shelf, the Federal Republic of Gerrnany nevertheless signed the Convention
l Under this amendmentArticle6 would read as folIows:
"1.Where a continental shelf is adjacent to the territories ofor more
Stateswhosecoastsare oppositeto each,other,the boundary of the continental
shelf appertaining to such States shall be determined by agreement between
thern orby other meansrecognizedin internationallaw.
"2. Where the same continental shelf isadjacent to the territoriestwo
adjacent States, the boundary of the continental shelf shall be determinedin
the manner prescribedin paragraph 1 of this Article,"on 30 October 1958-which was the Iast day but one on which it was open
for signature-making a reservation only in respect of Article 5 on fishing
rights.
22. When replying to the Netherlands Note Verbale of 21 June 1963 (see
supra, para. 16), the German Federal Government confirrned its intention to
ratify the Geneva Convention on the Continental SheIf. As the reply of the
German Federal Government, contained in a Note Verbale dated 26 August
1963, has not been reproduced in the Memorial of the Federal Republic, the
text and a translation of that reply are annexed tthepresent Counter-Mernorial
(Annex 9). The significant passage in this connection reads:
"The Ministry of Foreign Affairs (at Bonn) has the honour also to
inform the Netherlands Embassy that the Federal Governrnent, too, is
preparing forthe ratification of the Convention on the Continental Shelf."
(Translation; words between brackets added.)
23. About the turn of the year 1963-1964,it was reported in the press that
an American oil Company had announced its plans to cany out drillings off
the German territorial sea. It would have been no more than a natural reaction
on the part of the Federal Republic of Germany to take adequate measures to
protect its national interests, and this, apparently, was what prompted it to
issue the Government Proclamation of 20 January 1964.
24. Only fragments of the text of this Proclamation appear in the German
Memorial. In view of the relevance of this document, the full text has been
reproduced as Annex 10.
As will be seen, the Government of the Federal Republic of Germany States
in this Proclamation :
(1) that "the Federal Government will shortly submit to the Legislature an
AccessionBill on this Convention" with a view toGerman ratification;
(2) that it deems exploration and exploitation of the seabed and subsoil to be
the sovereign right of the Federal Republic, and that tl~isright is based on
"the development of general international law as expressed in recent State
practice and, in particular, in the signing of the Geneva Convention on the
Continental Shelf ".
25. No accession billwas, however, presented to the Legislature by the
Federal Government. On 15 May 1964a Bill was submitted with a viewonly
to establishing a statute relating to the activity in the German shelf area.
But, in the motivation to the Bill (Annex 1l), the Federal Governrnent stated
that the statute was to be "the municipal supplement to the effects of the
Proclamation in the field ofinternational law". It will further be seen from the
text that once again the Federal Government of Germany acknowledges the
Geneva Convention as an expression of customary international law.
26. The Parliament ("Bundestag") of the FederaI Republic of Germany
responded favourably to the Government Bill, adopting it unanimously at the
third reading on 24 June 1964. In its report as well as in its recommendation,
the Parliamentary Cornmittee concemed advocated an early German ratifica-
tion of the Geneva Convention, and this recommendation was endorsed by
Parliament.
27. Why, then, was the ratification of the Convention never carried out by
the Federal Republic of Germany? The Governrnent announced it in its Note
Verbale to the Netherlands Government and advocated it jn its Proclamation,
and Parliament recommended it. But the Federal Republic never proceeded320 NORTH SEA CONTINENTAL SHELF
to ratificatioand when the Nethedands-Germanand theDanish-German
agreements on delimitationof the continental shin thNorth Sea nearthe
coast were placed before Parliamentin December 1964 and October 1965
respectively, no referencwhatsoever was made to ratifying the Geneva
Convention. COUNTER-MEMORVL OF THE NETHERLANDS
THE NEGOTIATIONS BETWEEN THE PARTIES TO THE DISPUTE
RELATINGTO THE DELIMITATION OF THE CONTINENTAL SHELF
BENEATH THE NORTH SEA
Section A. BilateraiNegotiations
28. To the Netherlands Note Verbale of 21 June 1963, mentioned at the
end of Chapter 2 (sesupra,para. 16),the Government of the Federal Republic
of Germany replied in a Note Verbale dated 26 August 1963,claiming that-
"sowohl historische Gründe als auch weitere besondere Umstande eine in
mehrfacher Hinsicht von der Auffassung der Koniglich Niederlandischen
Regierung abweichende Grenzziehung rechtfertigen".
(Translation: "there are historical reasons and other special circurnstances
that justify adoption of a delimitation line, the position of which differs
in more than one respect from that claimed by the Royal Netherlands
Government.") (Fu11text and translation in Annexes 9 and 9 A to this
Counter-Memorial.)
29. In this connection mention should bemade of the specialsituation which
exists in the Mouth of the Ems in respect of the boundary-in the itaternaand
territorial waters-between the Kingdom of the Netherlands and the Federal
Republic of Germany. The course of the international frontier in this area has
been disputed for centuries. On 8 April 1960 the two States concluded the
Ems-Dollard Treaty lthe purpose of which was to eliminate a11questions that
existed or might arise on account of the absence of an agreed frontier.Article 46,
paragraph 1, of this Treaty provides:
"The provisions of this Treaty shall not affect the question of the
international frontier in the Ems Estuary. Each Contracting Party reserves
its legal position in this respect." (Translation by the United Nations
Secretariat.)
When it appeared that the subsoil of the Ems Estuary might contain mineral
resources, the two States concluded on 14 May 1962 a Supplementary Agree-
ment in order to provide for the regulation of this question too, again without
fixin tge course of the international frontier. The text and a translation of the
Supplementary Agreement are reproduced as Annexes 16 and 16 A of the
Mernorial of the German Federal Government.
This special situation in the Ems Estuary and its particular effect upon the
delimitation of the parts of the adjacent continental shelf appertaining to the
one and the other State, are cfearly demonstrated by the chart reproduced on
page 100, supra, of the Memorial. The shading on the southern part of the chart
indicates the area where, failinan agreed frontier, conventional rules onCO-
operation between the Parties are applicable.
As there is no agreed frontier between thg Parties in this area, there is in
consequence no agreed point of intersection of such a frontier with the outer
limits of the territorial sea, i.e.,no starting point for the delimitation of the parts
of the continental shelf appertaining to the one and the other State.
l Text printed in UnitedNations Treaty SerieVol. 509.322 NORTH SEA CONTINENTAL SHELF
30. Following the exchange of the Notes Verbales of 21June and 26 August
1963, bilateral discussions took place between representatives ofthe Kingdom
of the Netherlands and representatives of the Federal Republic of Germany on
3 and 4 March 1964.During these discussions iternergedfor the fiwt tirnethat
the Federal Republic of Germany not only disagreed with the Kingdom of the
Netherlands in respect of the point on the outer limit of the territorial waters
from whichthe boundary line onthe continental shelfshould bedrawn (puncturn
a quo) but also in respect of the method of determining that boundary line.
In the course of the same discussions, the representatives of the Kingdom of
the Netherlands declared with regard to the method of determining the bound-
ary line that, sinceArticle 6 of the Geneva Convention was to be regarded as an
expression of existingrules of international law, they were not in a position to
negotiate a contractual arrangement determining a boundary line which would
not be based on the equidistance principle. Accordingly,further discussionsand,
later on, negotiations were conducted on the subject of the punctum a quo and
these eventually resulted in the initialling, on 4 August 1964, of the text of the
Treaty concerning the lateral delimitation of the continental shelf near the
Coast l.As stated in the Joint Minutes of that date2,this Treaty was based on
Article 6 of the Geneva Convention on the Continental Shelf and took into
account the "special circumstances" prevailing in the Mouth of the Ems. As
stated in the Memorial, paragraph 16 (p. 21, srrpra),the partial boundary line
agreed upon does in fact follow between the last three seaward points the
equidistance line and deviates from the equidistance line only as regards the
points nearer to the coast-line where the disputed frontier in the territorial sea
comes into question.
Section B. TripartiteNegotiations
31. Only after these bilateral talks and the conclusion of the bilateral Treaty
of 1 December 1964, did tripartite talks take place, at the instigation of the
Federal Republic of Germany, between representatives of Denmark, of the
Federal Republic and of the Netherlands, The firstroundtook place on 28 Feb-
ruary 1966in The Hague. Second and third rounds of tripartite talks were held
in Bonn and Copenhagen in May and August 1966 respectively. Since the
Netherlands delegation stated at the beginning of these talks that its Iegal
standpoint was still the same as that recorded at the end of the bilateral dis-
cussions(Joint Minutes of 4 August 19154~),the negotiations were concerned
with finding a method for the settling of the dispute. They resulted eventually
in the initialling, 1nAugust 2966in Copenhagen, of the two bilateral Special
Agreements andthe tripartite Protocol, whichwere,after signature, transmitted
to the Court in February 1967.
Treaty signed on 1 December 1964; Annexes 3 and 3 A of the Memorial,
pp. 98-101, supra.
Annexes 4 and 4 A of theMemorial, pp. 102-104, supra. COUNTER-MEMORIAL OF THE NETHERLANDS
PART II. THE LAW
CHAPTER 1
THE QUESTION SUBMITTED TO THE COURT
32. The question which, under the terms of the Compromis (the "Special
Agreement" of 2 February 1967),the Court is called upon to decide is:
"what principles and rules of international law are applicable to the
delimitation as between the Parties of the areas of the continental shelf in
the North Sea which appertain to each of them beyond the partial bound-
ary determined by the (Netherlands-Geman) Convention of 1 December
1964".
The Federal Republic, in its Subrnissions and in Part II of the Mernorial,
asks the Court in eKectto declare that the only applicable pnnciple or rule of
law is an alleged principle that each coastal State is entitled to ajust and equi-
table share; and that neither the equidistance method nor any other methodis
a fit and proper method of delimitation in any circumstances, unless it is
established by agreement, arbitration or otherwise that the particular method
will "achieve ajust and equitable apportionment arnong the States concerned".
33. The claim thus formulated by the Federal Republic seemsto the Nether-
lands Government to be nothing less than a request to the Court to Iay down
that, as between the Netherlands and the Federal Republic, the delimitation of
the continental shelf in the North Sea should be settled ex aequo et bono.
Without a framework of legalcriteria to determine what is "just and equitable",
the concept of a "just and equitable apportionment" lacks any legal content.
Indeed, as the very terms of the Compromis show, it was precisely in order to
obtain the Court's directions regarding the applicable framework of legal
criteria that the Netherlands and the Federal Republic have submitted the
dispute to the Court. Accordingly,the claimformulated by the FederalRepublic
appears to the Netherlands Government not to fa11within the terms of the
question put to the Court in the Compromis.
34. In any event, the thesis put forward by the Federal Republic reflects a
concept of the coastal State's rights in the continental shelf which has no basis
either in the terms of the Compromis or in the applicable rules of international
law.
35. The Compromis doesnot request the Court to decidewhat principlesand
rulesof international lawshouldgovem the sharingoufbetweenthe Netherlands
and the Federal Republic of areas of the continental shelf in the North Sea.
Tt requests the Court to decide the principles and rules applicable to the
delimitation as berween the Nerherlands and the Fedcral RepubEicof the areas
of the continental shelf in the North Sea whichappertain ro each of thenabeyond
thepartial boundary olreadyfixed bythe1964 Treaty I.short, the question put
to the Court in the Compromis concerns the principles and rules applicable for
completing the delimitation of the boundary running between the areas of
continental shelf which appertaiir to each of two adjacent coastal States.
36. The manner inwhich the question for the Court's decision is framed in
the Compromis also corresponds to the way in which the question of delimita-
tion presents itself in State practice, in the propofathe International Law324 NORTH SEA CONTINENTAL SHELF
Commission and in the provisions of the1Geneva Convention of 1958on the
Continental Shelf.
37. Al1the pre-1958 texts of Proclamations or Decreesgivenin paragraph 31
(p.31,supra) of the Memorial viewthe question as one of boundary delimitation
in accordancewith equitable principles. The proposals of the International Law
Commission in both paragraphs of Article 72 of the draft submitted by it to
the General Assembly were also framed entirely as rules for delimiting the
boundariesof the areas of coniinentalshelfoppertaining fo coastal States (Year-
book of theInternationalLaw Commission,1956,Vol.II, p. 300).Article 6 of the
Geneva Convention on the Continental Shelf, which reproduces the Commis-
sion's textsalmost word for word, is similarly couched entirely in terrns of the
delimitation of continental shelf boundaries. Thus, the text of Article6reads:
"1. Where the sarne continental shelf is adjacent to the territories of
two or more States whose coasts are opposite each other, the boundaryof
the continentalshev apperrainingto such States shall be determined by
agreement betweenthem. In the absence of agreement, and unless another
boundary line is justified by special circumstances, the boundary is the
medianline,every point of which is equidistant from the nearest points of
the baselines from which the breadth of the territorial seof each State is
measured.
2. Where the same continental shelf is adjacent to the territories of two
adjacent States, the boundaryof the continental shev 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 deterrninedby application of theprinciple of equidistaitcefrom the
nearest points of the baselinesfrom which the breadth of the territorial sea
of each State is measured.
3. In delimiting the boundaries of the continental shelf, any lines which
are drawn in accordance with the principles set out in paragraphs 1and 2
of this article should be defined with referenceto charts and geographical
features as they exist at a particular date, and reference should be made to
fixed permanent identifiable points on the land." (Italics added).
38. The same is true of the State practice after the 1958Geneva Conference,
and especially that relating to the North Sea itself, as clearly appears frorn the
terrns of the unilateral acts and bilateral agreements cited in Chapter II of
Part 1of the Memorial. Thus, the Norwegian Proclamation and Decree, of
1963, speak of Norway's submarine areas having a boundarymidway between
Norway and other countries. The Danish Decree and Note Verbale, both also
of 1963,echoing the language of the Convention, speak in terrns of boundary
delimifation. The Federal Republic's own Proclamation of 20 January 1964
(Counter-Memorial, Annex 10) speaks of the delimitation of the German part
of the continental shelfin relation to the parts of the continental shelfof foreign
States. The United Kingdom's Continental Shelf (Designation of Areas)
Order of the same year refers to certain areas as subject to the exercise of its
continental shelf rights "pending agreement with other Powers on the bound-
aries of thecontinentalshelfappcrrainingto ~heUnitedKingdom".As to Belgium,
its Billof 23October 1967speaksin Article 2 of the delimitation of the Belgian
continental shelf (Counter-Mernorial, Annex 14, p. 388,below).
Lastly the Netherlands, in its Note Verbale of 21 June 1963 (Counter-
Memorial, Annex 8),notified the Federal Rtpublic that thepart of the conti-
nentalshelfof theNorrhSea over whichrheNerherlandsexercises sovereignrights
in conformity with the Convention- COUNTER-MEMORIAL OF THE NETHERLANDS 325
"is defimitedto the east by the equidistance line beginning at the point
where the thalweg in the mouth of the Ems reaches the territorial waters".
(Italics added.)
39. Particularly striking is the fact that al1the bilateral agreements hitherto
concluded between North Sea Powers are expressed as delimitationsof bound-
aries between the parts of the continental shelf appertaining to the respective
countries, not as agreements for sharingour the continental shelf. Thus, the
UnitedKingdom-NorwayAgreementof 10 March 1965(Memorial, Annex 5)
has a preamble which proclaims that the two States-
"Desiring to establish theboundarybetweenthe respective portsof the
continentalsheif
Have agreed as follows." (Italics added.)
And then the operative clause of Article 1 of the Agreement reads-
"The dividing linebetween thatpart ofthe continentalshelfwhichapper-
tains to the UnitedKingdonaof Great Britain and Northern Ireland and
fhatpart whichappertainsfo the Kingdomof Norway shall bebased .. .",
etc. (Italics added.)
The sameforms of preamble and operative clauseappear alsointhe Nerherlands-
UnitedKingdomAgreementof 6 October 1965(Memorial,Annex 9). Similarly,
the Denrnark-United KingdomAgreementof 3 March 1966(Memorial, Annex 12)
has apreamble in the tems that the two States-
"Have decided to establish their common boundary between the parts
of the continental shelf overwhich the United Kingdom of Great Britain
and Northern Ireland and the Kingdom of Denmark respectively exer-
cise sovereign rights for the purpose of the exploration and exploitation of
the natural resources of the continental shelf,"
And the operative clause of Article 1 of the Agreement then takes the same
form as in the United Kingdom-Norway and the Netherlands-United Kingdom
Agreements. The Denmark-NorwayAgreementof 8 December 1965(Memorial,
Annex 11A)hasa preamble and operative clausewhich,ifthewording isslightly
different, are inspired by preciselythe same conceof the purpose and effectof
the Agreement.
40. The Treaties of the Federal Republic itself with the Netherlands of
1 December 1964(Memorial, Annex 3 A) and with Denmark of 9 June 1965
(Memorial, Annex 6 A) for the delimitation of the continental shelf near the
Coastare equalfy expressed in terms of the partial delimitation of the boundory
of the continentalshelfodjacenttothe territoriesof the States concerned,More-
over, eventheJoint Minutes andthe Protocol (Memorial,Annexes4A and 7A)
accornpanyingthoseTreaties and reservingtheposition ofthe Partieswithregard
to thefurther courseofthe boundary recognizedthat the question at issuewasthe
determination of the cornmonboundarybetween the respective Parties. True,
the delegation of the Federal Republic in the Joint Minutes accompanying the
Treaty with the Netherlands announced that the Federal Government was-
"seeking to bring about a conference of States adjacent to the North Sea
with a view to arriving at an appropriate division of the continental shelf
situated in the middle of the North Sea".
But it referred to a divisionin accordance withthe firstsentencesofparagraphs 1
and 2 of Article 6 of the Geneva Convention which speak expressly of the
determination of the boundary of the continental shelf appertaining to the
States concerned. Nor did the FederaI Government pursue the idea of a con-
ference. On the contrary,inidenticAide-Mémoires of25 May 1966(MemoriaI,326 NORTH SEA CONTINENTAL SHELF
Annex 15A) addressed sirnultaneousIyto the Netherlands and Danish Govern-
ments concerning their Agreement for the delimitation of their respective parts
of the North Sea, the Federal Republic contented itself with underlining that
the arrangement made in that Agreement-
"cannot have any effecton the question of the delimitafionof the German-
Netherlands or the German-Danish parts of the continental sheIf in the
North Sea" (italics added).
Furthermore, in its two identic Aide-Mémoires of12July 1966, addressed by
the Embassy of the Federal Republic to the United'Kingdom Government with
reference to the conclusion of the United Kingdom-Netherlands and the
United Kingdom-Denmark Agreements for the delimitation of the continental
shelf, the Federal Government reserved its position expressly in terms of the
delimitation of its boundaries with the Netherlands and Denmark (Memorial,
Annexes 10 A and 13A):
"the Federal Government wishes to point out to the British Government
that the final setrlement of the question of the lateral deiimitation the
continentalshelfintheNorth Seabetweenthe Federal Republic ofGermany,
the Kingdom of Denmark and the Kingdom of the Netherlands is still
outstanding. The Federal Government would morcover bring the Aide-
mémoireof 25th May 1966, a copy of which is attached, to the attention
of the British Government andwould add that the arrangement made in
the aforementioned Agreementcannot prejudice thequestionof thedelimita-
rionof the continentalsheifbetween theFederaIRepublicof Germanyandthe
Netherlands (De~zrnark)in the eastern part of the North Sea" (italics
added).
41. Lastly, it is noteworthy that in the Protocol of 9 June 1965 on the
deiimitation of the continental shelf in the Baltic Sea the Federal Republic
together with Denmark again dealt with the question purely and simply as one
of the delimitation of baundaries,not of the sharing out of areas between the
littoral States of that sea (Memorial, Annex 7 A):
"With respect to the continental shelf adjacent to the coasts of the
Baltic Sea which are opposite each other, it isagreed that the boundary
shall bethe median line. Accordingly, both Contracting Parties declare
that they will raiseno basic objections to the other Contracting Party's
delitnitingitsparof thecontinentalsheyof the Baltic Sea on the basis of the
median line." (Italics added.)
42. Accordingly, the practice of States-in their unilateral acts, their bilateral
agreements and in the Geneva Convention on the Continental Shelf-affords
no support whatever for the conclusion which the Federal Republic seeks to
draw from it in paragraph 38of its Memorial (p. 36, supra):
"Where the same continental shelf is adjacent to the territories of
several States, each of these States is entittedatjust and equitable share
of thutcontinentalshelf,irrespectiveof themethodusedfor thedetermirration
of the boundurksbetween the States concerned."
On the contrary, that conclusion isin direct contradiction both with the existing
practice of a large number of States and with the rules adopted in the Geneva
Convention on the Continental Shelf.
43. Nor is the Federal Republic's thesis made any more compatible with
State practice or with the Geneva Convention by framing it in the truncated
form in which it appears in the Federal Government's first Submission (p. 91,
supra) : COUNTER-MEMORIALOF THE NETHERLANDS 327
"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."(Italics added.)
This proposition startsfrom theinadmissible basis of sharingoutrhecontine~tal
shewlike a cake instead of from the basis of determining, as between opposite
or adjacent States, what are the boundaries of the areas of continental shelf
appurtenant to the coasts of each State and delimitingtheboundary accordingly.
When the FederaI Republic states in paragraph 30 of the MemoriaI (p. 30,
supra)that-
"if,by virtue of their geographic position, two or more coastal States
can claim that a continental shelf 'appertains' to each of them, the neces-
sity arises of apportioning that common continental shelf between them"
this is amanifest misrepresentation of the legal situation under positive inter-
national law. In the first place, this statement confuses thegeoiogicoi concept
of the continental shelf with the entirely different legal concept of sovereign
rights of a State over the continental shelf. There are, perhaps, reasons for
considering a continental shelf as a"unit" from the geological point of view,
There is, however, no more reason to regard that geological unit as a legal
entity than there isto consider the "continent of Europe" or the "low countries"
as such. From the legal point of viewthe continental shelf, like land, sea and
air, is primarily "space" wherein activities take place and objects are found,
and space is a priori susceptible to any limitation or division. Secondly, the
mere fact that two or more States each lay a daim (or even "can"lay a claim)
to the samespace doesnot make that spacecornmonspaceto be dividedbetween
them. Indeed the normal legal situation in respect of, for instance, a disputed
territory is not that the territory is divided but that the better claim prevails.
Nor have any of the other North SeaStates sought to treat the continental shelf
beneath that sea as legallya unity. On the contrary, every singleone of them-
with the exception of the Federal Republic of Germany-has demonstrably
regarded its claim as limited to that part of the continental shelf every point
of which is nearer to its Coastthan to that of any other State.
Equally, the reference in paragraph 35 of the MemoriaI to the use of the
waters of international rivers is entirely beside the point. The rkgime for the
utilization of the waters of international rivers is a quite different question
which does not concem the delimitation of boundaries.
44. No doubt, when the determination of the boundaries of the areas of
continental shelf appertaining to each coastal State has been made, the result
may be spoken of as constituting an "apportionment" of the continental shelf
among the States concemed or as a determination of their "shares". But there
is a fundamental difference between a principle which starts from the basis
that the continental shelf is the cornmon property of the littoral States, each
of whorn is entitled to an "equitable and just share"of the common property,
and one which starts from the basis that each littoral State is entitled to the
areas which appertain to its territory and that the boundaries betweenthese
appurtenantareas are to be delimited on equitable principles. If these two
principles may not always have been clearly distinguished by some writers,
there can be no doubt that it is the latter principle which is found in State
practice and expressed in the Geneva Convention, not the principle formulated
in the Federal Government's first Submission.
45. Furthermore, the Federal Republic's submission that the defimita-
tion of the continental shelf in the North Sea as between the Netherlands and
the Federal RepubIic should be govemed by the principle that each coastal3 28 NORTH SEA CONTINENTALSHELF
State is entitIed to a just and equitable share, is one which by its very nature
cannot givean adequate answer to the question put to the Court in the Com-
promis. In the first place, a delimitation of the boundary as betweenthe Nether-
lands and the Federal Republic would not by itself determine the total area
appertaining to either or both of them, since the total area of each would
be dependent upon their other boundary lines with third States not par-
ties to the present dispute. In the second place, and consequently, the
question whether such a delimitation would produce a "just and equitable
share" for the Netherlands and the Federal Republic wouldnecessarilyalso
be dependenton thedelimitationof theirboundarieswith thirdStates. Thus, the
alleged principle formulated by the Federai Republic simpiy cannot constitute
a pnnciple or rule of international .law applicable to the delimitation of the
continental shelf boundary as between the Partiesro the Compromis.
46. If there were such a principle or rule of positive international law, it
would follow logically that the delimitation of the continental shelf of each
and every North Sea coastal State could be effectedonly through a multilateral
agreement concluded between al1of thern. The Federal Republic did, indeed,
at one stage in the negotiations speak of an intention to convene a multilateral
"conference of States adjacent to the North Sea with a view to arriving at an
appropriate division of the continental shelf situated in the middle of the
North Sea" (Joint Minutes of4August 1964,Mernorial,Annex 4A, penultirnate
paragraph). But it made no effort to carry the matter further. No doubt, this
was because the Federal Government soon came to realize that not only the
Netherlands but al the States concerned would autornatically demand the
application of Article 6 of the Geneva Convention and that the only result of
such a conference must be the delimitation of the North Sea continental shelf
in accordance with the equidistance principle. Atany rate, it never adverted to
the idea of a multilateral conference again.
47. Now, however, the Federal Government shifts its ground and demands
that the boundary between the Netherlands and itself should bedetermined
bilaterally in isolation from the other North Sea States but in such a way as to
provide the Federal Republic witha shareof thetotal continental shelfbeneath
the NorthSea that it considers "just and equitable". In short, the Federal Re-
public now seeks to put the burden of providing for itself what it considers a
just and equitable share of the North Sea.shelf not on all, but on one or at
most two of the North Sea States. The very nature of this demand, in the view
of the Netherlands, is incompatibIe with the existenceof the supposed principle
which the Federal Republic invokes.
48. On this point, there is a certain consistency in the position taken up by
the Federal Republic. Prior to the Geneva Convention it advocated that the
continental shelf outside territorial waters should be regarded as common to
al1States and should be exploited in the interests of all. That concept of the
continental shelf was, however, in total conflict with the practice of States and
was completely and finally rejected at the Geneva Conference of 1958. The
pnnciple formulated in the Federal Republic's first Submission seemsto be
essentiallya relic of that very "community" concept of the continental shelf
which the Federal Govemment has itself now abandoned. Be that as it may,
the principle is certainly in conflict with the practice of States and with the
concept of the continental shelf which was adopted in the Geneva Conven-
tion and animates the provisions of Article 6 concerning the delimitation of
boundanes of the conthenta1 shelf.
49. If iisnecessary to Iook for the general concept underlying the modem COUNTER-MEMORIAL OF THE NETHERLANDS 329
law regarding the delimitation of continentaI shelf boundaries, this is that
each State has ipsojure sovereign and exclusive rights of exploration and
exploitation over the areas of continental shea¢ to its coast and that,
in the case of two States fronting upon the same continental shelf, the areas
which are to be considered as appertaining to one or to the other are tobe
delimited on equitable principles. However, State practice and the Geneva
Convention have translated this general concept into the more concrete criteria
for the delimitation of continental shelf boundaries which are examined in the
next Chapters of this Counter-Memonal. In the view of the Netherlands
Government, it is in these more concrete criteria that the answer to the ques-
tion put to the Court in the Compromis has to be found. NORTH SEA CONnNENTAL SHELF
CHAPTER 2
THE PRINCIPLE THAT A DELlMITATION OF A MARITIME AREA
IN ACCORDANCE WITH GENERALLY RECOGNIZED RULES OF
INTERNATIONAL LAW IS PRIMA FACIE VALID AND OPPOSABLE
TO OTHER STATES
50. The Federal Republic, as pointed out in the previous Chapter, asks the
Court in its submissions to recognize only one alleged principle of law as
governing the delirnitation of the continental shelf between the Parties in the
North Sea, namely the principle that "each coastal State is entitled to a just
and equitable share". By way of clearing the ground for its alleged principle of
law, however, the Federal Republic also asks the Court expressly to deny the
status of a rule of customary law to the "equidistance" principle-the principle
applied by the Netherlands and Denmark as wellas by other North Sea States
in the delirnitatiooftheir respectivecontinental shelfboundaries. The Federal
Republic's second Submission reads :
"The method of determining boundaries of the continental shelf in
such a way that every point of the boundary is equidistant from the
nearest points of the baselines frorn which the breadth of the territorial
sea of each state is measured (equidistance method), is notP rule of cus-
tomary internationat law and is therefore not applicable as such be-
tween the Parties l."
This Submission has ta be read in the light of the Federal Republic's dis-
cussion of the equidistance line in Chapter II of Part II of the Mernorial where,
after dealing with the genesis of the equidistance method and its introduction
into Article 6 of the Geneva Convention on the Continental Shelf, the Federal
Government asserts:
"Thus Article 6 is not a codification of already existing international
law,but it is theoutcomeof an effort to developthe existinglegalsituation,
with its demand for an equitable solution, by the establishment of a
method which it was assumed would, under normal geographical condi-
tions,lead to an equitable and just .apportionment of the continental
shelf between the States concerned, Article 6 must be interpreted in this
sense, with the consequence that an equidistance boundary rnay not be
imposed upona Stafe ivhichIiasnot accededtu the Conventiolz, so long as it
has not been proved that it would be the best method of apportioning
the continental shelf between the adjacent States in a just and equitable
manner, having regard to the specialgeographicalsituation of the individual
case 2."(Ttalicsadded.)
51. The Federal Government's contentions regarding the status of the
equidistance method are believed by the Netherlands to be based on a miscon-
ception no less fundamental than that which underiies its first Submission.
In the present instance the fundamental misconception concerns the position
of theParties in relation to the principles and rules of law expressed in the
Geneva Convention.
lP. 91, supra, of the Memorial.
Para. 53 (p. 57supra) ofthe Memorial. COUNTER-MEMORIAL OF THE NETHERLANDS 331
52. The Court itself, in itsjudgment in the Fisheriescase (Z.C.J. Reports1951,
p. 116)has stated authoritatively the position of a coastal State with regard to
the delimitation of sea areas (at p. 132):
"The delimitation of sea areas has always an international aspect; it
cannot be dependent merelyupon the will of thecoastal State as expressed
in its municipal law. Although it is true that the acr of delimitotion is
necessarilya unilaferalacr, because anly the coastal State iscompetent to
undertake it, the validity of the delimirationwifh regard tu other States
dependsuponinternationallaw." (Italics added.)
The Court did not in that passage Saythat the vaIidity of a delimitation by
a coastal State vis-A-visanother State depends on the will of that other State.
It said that the validity of the delimitation with regarto other States depends
uponinternationalIaw.
53. The situation in the present case is that, exercising the cornpetence
which they have under their respective systems of municipal law,the Nether-
lands and Danish Governments, by unilateral acts and by bilateral agreements
concluded both between themselves and separately with other North Sea
coastal States, have delimited the boundaries of the areas which they believe
properly to appertain to their respective coasts under the principles and rules
of delimitation generally recognized by States. In doing so they have sought
to base their delimitations directly on the principles and rules adopted by a
very large number of States at the Geneva Conference of 1958and embodied
in Article 6 of the Geneva Convention on the Continental Shelf, In short,
the Netherlands and Denmark having detimited their continental shelf bound-
aries specifically on the basis of generally recognized principles and rules of
law, these delimitations are prima facie not contrary to internationa1 law and
are valid with regard to other States. Accordingly, if the Federal Republic
considers that the delimitations are invalid, the onus is on it to show why the
Netherlands or Denmark shouId not be entitled to apply the generally re-
cognized principles and rules of delimitation in delimiting their respective
continental shelf boundaries. In the present case it is not a question of the
Netherlands or Denmark seekingto imposea principle or rule upon the Federal
Republic; it is rather aquestion of the Federal Republic's seeking to prevent
the Netherlands and Denmark from applying in the delimitation of their
continental shelf boundaries the principles and rules of international law
generally recognized by States. Neither the Netherlands nor Denmark has
entered into any international engagement or otherwise placed itself under
any international obligation vis-à-vis the FederaI Republic which might
preclude either State from delimiting its maritime areas in accordance with
the generaliy recognized principlesand rules of international law. NORTH SEACONïiNENTAL SHELF
CHAPTER 3
THE STATUS OF THE PRINCIPLES EMBODIED IN ARTICLE 6 OF
THE CONVENTION ON THE CONTINENTAL SHELF AS GENERAL
RULES OF LAW
54. The Federal Republic's principal contention in Chapters 1 and II of
Part II of the Memorial appears to be that,between the Parties to the present
case, delimitation on the basis ofequidistance isnot to beregarded asa principle
of Iaw but merely as one of several possible methods of deIimitation which
may corne under consideration in aiming at an "equitable and just appor-
tionment". This contention, which seeks to deprive the "equidistance" prin-
ciple of al1legal force for the purposes of the present case, conflicts with the
general recognition of the equidistance principlas a legal rule by States as
well as with the attitude adopted towards that principle by the Federal Re-
public itself othenvise than in the case of the particular boundaries now in
dispute before the Court.
55. In the State practice prior ta the Geneva Conference of 1958 the ten-
dency admittedly was to refer in general terms to the delimitation of continental
shelf boundaries on "equitable principles" without mention of the "equidis-
tance" principIein particular. But the concept afdelimitation on "equitable
principles", as already mentioned in Chapter 1 of this Part, was aftenvards
converted first through the work of the International Law Commission and
then through the Geneva Conference of 1958into the rules set out in Article 6
of the Geneva Convention on the Continental Shelf, which accept the equidis-
tance principle as a rule of law, In addition, as is shown in Section C of this
Chapter @p.340,et seq.infra), theequidistance principleadopted in Article 6of
the Geneva Convention as applicable to the delimitation of the continental
shelfwas a principle whichhad already receivedwide recognition inthe practice
of States in connection with the delimitation of other forms of both maritime
and fresh-water boundaries. Moreover, since then no less than 37 States have
ratified or acceded to the Geneva Convention and a number of States have
already applied the rules contained in Article 6 in their practice. Finally, the
Federal Republic itself, although not yet a party, has not only placed its
signature on the Convention but has also employed the equidistance principle
in delimiting its continental shelf boundaries with the Nethedands and with
Denmark nearthe coast andagain indelirnitingits continental shelf boundary
with Denmark in the Baltic.
Section A. The International Law Commission
56. When the International Law Commission first took up the question of
delimitation in 1950 it is true that, as indicated in paragraph 48 of the Me-
morial, the discussions showed "a great deal of uncertainty regarding the way
to solve the problem of delimitation and regarding any rules which rnight be
applied". But the suggestion which also seems to be made in that paragraph
that the Commission viewed the matter as a question of apportioni ngconr-
mon area of continental shelf is quite untrue. The question put by the Special
Rapporteur to the Commission was (Yearbaok, 1950, Vol. II, p. 31): "Where
the continental shelves-or contiguous zones, as the case rnay be-overlap, COWNTER-MEMORIAL OF THE NETHERLANDS 333
how should they be delimited?"This question, the record shows, had not yet
been gone into very deeplyby members of the Commission, and the discussion
was of a preliminary character. Indeed, the State practice up to that date was
not regarded by the Commission as sufficiently consistent to establish any
customary rule as already in existence with respect to the continental shelf,
and its whole discussion of the nature and extent of the rights of a coastal
State over the continental shelf was stili somewhat tentative and exploratory.
It is therefore scarcely surprising that the Commission should not at that
session have had any very clear ideas about the criteria for delimiting con-
tinental shelf boundaries; or that some members, such as Amado and Hudson,
should have doubted whether there was any generai principle applicable and
should have sirnplyfallen back upon "arbitration" or "agreement".
57. In 1951 the Commission reverted to the problem. The Special Rappor-
teur now proposed that delimitation of continental shelf boundaries should
in the first place be left to the agreement of the parties but that :
"Faute d'accord, la démarcation entre les plateaux continentaux de
deux Etats voisins sera constituéepar la prolongation de la ligne séparant
les eaux territoriales et la démarcationentre les plateaux continentaux de
deux Etats séparéspar la mer sera constituéepar la ligne médianeentre
les deux côtes." (Yearbook,1951,Vol. II, at p. 102.)
The discussion that followed was again somewhat confused: various sug-
gestions were made and it is true that again no majority was obtained for any
general principle of delimitation to determine continental shelf boundaries
between "adjacent" States. The principle mainly discussed was that of "pro-
longing" the territorial sea boundary. But members of the Commission doubted
whether any general principlehad yet ben established fordelimitingthe bound-
ary between the territorial waters of adjacent States. lndeed, in discussing
this problem at its 1950and 1951sessionsthe Commission was inthe difficulty
that it had not yet begun its study of the territorial sea. As a result, 1951ts
Report the Commission could do no more than advocate that the continental
shelf boundary between "adjacent" States should be established by "agree-
ment" and, failing agreement, by compulsory recourse to arbitration ex
aequo et bono. On the other hand, in that same report the Commission did
express itself in favour of the "equidistance" principle-in its median line
form-for "opposite"States whose territories are separated by an arm of the
sea. It conceded that in these cases the configuratioof the Coastmight some-
times give rise to difficultiesin drawing a median linand recommended that
such difficultiesshould be referred to arbitration. But it recognized that the
boundary "would generally coincide with some median line between the two
toasts".
58.The 1953 session of the Commission was a turning-point in the develop-
ment of the law regarding the delimitation of continental shelf boundaries. In
commenting upon the Commission's 1951 Report, numerous governrnents-
and particularly those of some of the smaIler States-had raised strong objec-
tions to the proposal chat disputes concerning the delimitation of continental
shelf boundaries should besettledex aequo etbono; and these governments had
urged the Commission to formulate rules of law as a basis for the settlemenof
disputes regarding the delimitation of continental shelf boundaries. (Yearbook,
1953, Vol. II, pp. 241-269.) In addition, at the wish of the Commission, a
Committee of experts had been convened by the Special Rapporteur shortly
before the 1953 session to consider technical questions connected with the
detimitation of the territorial sea. This Committee had presented a report334 NORTH SEA CONTINENTAL SHELF
endorsing the use of the "median line" in the case of "opposite" States and
recomrnending that the lateral boundary betweenthe territorial seas of adjacent
States should be traced according to the "principle of equidistance".
Furthermore, in doing so, the Committee had stressed the importance of
finding "a formula for drawing the international boundaries in the territorial
waters of States which could also be used for the delimitation of therespective
continental shelvesof two States bordering the same continental shelf '".True,
the experts had conceded that the equidistance method might not always give
an equitable result, and that in such a case a solution by negotiation might be
necessary. But this had not deterred them from coming down firmly in favour
of the equidistance principle as the generally applicable ruie for the continental
shelf as well as for the territorial sea.
59.Accordingly, at the 1953sessionthe Special Rapporteur submitted a new
draft article (Art. 7 of his draft)provjdingthat:
(1) in the case of opposite States, the boundary shouId be "the median
line every point of which isequidistant from the two opposite coasts";
(2) in the case of adjacent States, the boundary "shouldbe drawn accord-
ing to the principleof equidistance from the respective coast-Iines" ;
(3) disputes regarding the application of these principles should be sub-
mitted to arbitration.
Paragraph 3 was eliminated from this article by reason of the inclusion of a
general provision for arbitration applying to al1the articles. As to paragraphs 1
and 2, their essentialprinciple-an equidistance boundary-was accepted by the
Commission. But these paragraphs were amended so as: (1) to make the
application of the equidistance principle subject to any agreement concluded
between the States concerned; (2) to allow for cases where "special circum-
stances" justify another boundary; and (3) to definemore preciselythe "coast"
from which the equidistance line should be measured bysubstituting "the base-
lines from which the width of the territoria1 sea of each country is measured".
60. The Federal RepubIic in paragraph 32of the Memorial seeksto interpret
the proceedings of the Commission as showing that the equidistance method
wassuggestedbythe Rapporteur and acceptedby the Commissionasasubsidiary
rule; and also that the Commission regarded the question essentially as one of
equitable apportionment rather than of determining boundaries. Indeed, in
paragraph 50 it gives the impression that the Commission's acceptance of the
equidistance principle at the 1953 session was very half-hearted. These inter-
pretations of the Commission's attitude are, however, in plain contradiction
with the Commission's ownexplanations of its views in paragraphs 81-85 of
its Report to the General AssembIy(Yearbook, 1953,Vol. II, p. 216).
61. The Commission's commentas. begins as follows:
"Inthematter ofthedelimitarionoffheboundariesof the continentalsheff
the Commission was in the position to derive some guidance from pro-
posals made by the committee of experts on the delimitation of territoria1
waters. .." (Ttalicsadded.)
And throughout the remaining paragraphs the Commentary speaks. not of
apportionment, but of the delimitation of boundaries. Then, in paragraph 82,
the Commission expressly designates the "principle of equidistance" as the
"generalrule" and as the "majorprinciple":
"Having regard to the conclusions of the committee of experts referred
lAnnex 7 of thisCounter-Mernorial, Remark, seep. 377, infra. COUNTER-MEMORIAL OF THE NETNERLANDS 335
to above, the Commission now felt in the position to formulate a general
rule, based on the principle of equidistance, applicable to the boundaries
of the continental shelf both of adjacent States and of States whose coasts
are opposite to each other. The rule thus proposed is subject to such
modi~cationsas may be agreed upon by the parties. Moreover, while inthe
case of both kinds of boundaries theruleof eauidistance istheaeneralrule.
it issubjectto modificafiunincasesinwhichan0ther boundary liieis justified
by special circumstances. As in the case of the boundaries of coastal
waters, provision must be made for departures necessitated by any ex-
ceptional configuration of the Coast, as well as the presence of islands or
of navigable channels. To that extent the rule adopted partakes of some
elasticity. In viewof the general arbitration cIau... no special provision
was considered necessaryfor submitting any resulting disputes to arbitra-
tion. Such arbitration, while expected to take into account the special
circumstancescaliingfor modificationof the majorprincipleof equidistance,
is not contemplated as arbitration ex aequo etbono. That major principle
mus?constifirtethe basis of the arbitrafion, conceivedas settfement on fhe
basis of Iaw,subject to reasonable modificationsnecessitated by the special
circurnstances of the case." (Italics added.)
In the Iight of that paragraph in the Commission's Report, it seems to the
NetherIands quite misleading to suggest that it accepted the "equidistance
principle" either half-heartedly or merely as a pureIy "subsidiary" rule.
62. When the Commission adopted the equidistance principle in 1953for the
continental shelf it had still not begun its study of the régime ofthe territorial
sea. However, like the committee of experts, it recognized that the delimitation
of the territorial seand the continental shelf should be governed by the same
principles. Paragraph 83 of the Commission's 1953Report thus records:
"Without prejudice to the element of elasticity implied in article 7, the
Commission wasof the ooinion that. where the same continental shelf is
contiguous to the territoiies of two adjacent States, the delimitation ofthe
continental shelf between thern should be carried out in accordance with
the same principles as govern the delimitation of the territorial waters
between the two States in question."
Confomably with this opinion, when the Commission did corne to deal with
the régimeof the territorial sea at its1954 and 1955 sessions, it adopted the
equidistance principle as the general rule both for opposite and for "adjacent"
States. As in the case of the continental shelf, it made the application of the
principle subject to any agreement reached betweenthe States concerned and
made allowance for "special circumstances". But both for "opposite" and
"adjacent" States the general rule whichit proposed wasa boundary determined
by application of the principle of equidistance from the respective baselines
of the States concerned. In doing so, it recailed the opinion of the Cornmittee
of Experts and underlined that it was followingthe samemethod of delimitation
for the territorial sea as for the continental shelf. (SeeArts15 and 16 of the
Commission's draft articles for 1954 on the Régimeof the Territorial Sea,
Yearbook, 1954, Vol. II, pp. 157-158, reproduced without material change as
Arts. 14 and 15of its 1955draft, Yearbook, 1955,Vol. TI,p. 38.)
63. At its 1956 session the Commission completed its work on the law of the
sea, re-examining the texts of al1 its articles. In the meantirnea number of
governments had submitted comments on the Commission's drafts. Neither in
the case of the territorial sea nor of the continental shelf did any of these336 NORTH SEA CONTINENTAL SHELF
governments oppose the adoption of the equidistance principle as the general
rule for delimitingthe boundary both as betweenopposite States and as between
adjacent States, should they not agree upon the boundary. Only three States
made comments on the delimitation proposals, and one of these, Yugoslavia,
did so for the purpose of advocating the strengthening of the equidistance rule
by omitting the words "in the absence of agreement between those States, or
unless another boundary line is justified by specialcircumstances" (Yearbook,
1956, Vol. II, p. 100). Norway's comment sought only to cal1attention to the
problem of delimiting the boundary of the territorial sea in cases where the
States concerned claim territorial seas of different breadths. Having declared
her support for the "median line" principle, she suggested that the problem
might be solved by formufating the rule for the territorial sea negatively: "in
the absence of special agreement, no State is entitled to extend the boundary
of its territorial sea beyond the median line" (ibid., p. 69). This suggestion,
although not followed up by the Commission, in fact formed the basis of the
solution aftenvards arrived ai by the Geneva Conference (see infi, para. 117).
64. The third State, the United Kingdom, had no criticism to make of the
Commission'sproposals forthe delimitation of theterritorial sea and continental
shelf boundaries in the case of aa)bcewt States.Its comments were directedat
the rules proposed for "opposite" States inArticles 14and 7 of the Commis-
sion's draft, which provided that. in the absence of agreement and unless
another boundary is justified by special circurnstances, "the boundary isthe
median Eirreevery point of which isequidistant .. .",etc. In substance, the
United Kingdom proposed that instead of stating "the boundary is the median
line" the texts should read: "the boundary ... is usually determined, unless
another boundary lineisjustified by speciaIcircumstances, by theapplicationof
the prirrciple of the mediari line everypoinf of which isequidistant . ..", etc.
This proposa1 it explained as follows (Yearbook, 1956,Vol, II, pp. 85and 87):
"The application of an exact median line, which is a matter of consid-
erable technical complexity, would in many instances be open to the ob-
jections that the geographicalconfiguration ofthe coast made it inequitable,
and that the base-lines (Le., the Iow-watermark of the coast) were liable
to physical change in course of time.
In the experience of the United Kingdom Government, the rnost
satisfactory course will usuallbe to apply theprinciple of the medianlitre:
that is an approximate or simpljfied median line based as closely as
circumstances allow on an exact median line and drawn on a specificchart
of a specific date." (Italics in the original.)
Afterabrief discussion,the Commission concluded that the existingwording
of the text already met the situation sufficientlyon this point.
65. In its fina1revision the Commission slightlymodified the wording of the
provisions concerning the territorial sea and continental shelf boundaries of
"opposite" States so as to specify that, in the first instance, they should be
determined by agreement. But after weighing the comment of Governments
it reaffirmed,without any hesitation and almost without discussion, its support
for the principleof equidistance as thegeneral rule of delimitation in the absence
of agreement both in the case of "opposite States" and in that of "adjacent
States".
66. Throughout the period during which the codification and progressive
development of the law of the sea was under consideration by the International
Law Commission the whole doctrine of the coastal State's rights over the COUNTER-MEMORIAL OF THE NETHERLANDS 337
continental shelf was stilincourse of formation. The unilateral claims which
had been made by individual States varied in their nature and extent; and many
coastal States, incIuding al1 the Parties to the present dispute, had not yet
promulgated any claim.Thework of the Commissionboth helpedto consolidate
the doctrine in international law and to clarify its content. This it did no less
in regard to the delimitation of boundaries between States on the continental
shelf than it did in regard to thenature and extent of the legatrights of coastal
States over the continental shelf. The provisions drafted by the Commission
regarding the delimitation of boundaries were part and parcel of its conso-
lidation and darification of the continental shelf doctrine.
Thus, just as the work of the Commission and the contribution tothat work
made by governments wereimportant factors in developing a consensus as to
the acceptability of the doctrine and its nature and extent, so aIso were they
important factors in developing a consensus as to the acceptability of the
equidistance principle as the general rule for the delimitation of continentaI
shelf boundaries.
67. The NetherIands Government participated in the work of the Interna-
tional Law Commission by commenting upon the Commission's proposals as
and when requested by the Secretary-General. On the question of delimitation
the Netherlands Government, in particular, expressed its support for the
principle embodied in Article 6, as has been noted in paragraph 12 (p. 312,
silpiiaabovs.
68. The Federal Republic was not among the States invited to comment
upon the Commission's proposals and did not, therefore, participate in any
way in its work. On the other hand, the proceedings of the International Law
Commission were published bythe United Nations and the FederaI Republic
can hardly have failed to know ofthem and to follow the growth of the con-
sensus among States regarding both the continental shelf and the equidistance
principle.
SectionB. The 1958 GenevaConference on the Law of the Sea
69. At the Geneva Conference of 1958the International Law Commission's
draft articles formed the basisof the work of the Conference. In the Fourth
Committee, the Committee concerned with the continental shelf, the main
focus of interest was the nature and extent of the rights to be attributed to
coastal States. On thisquestion the Federal Republic submittea memorandum
opposing "the whole conception" ofthe rules proposed by the Commission and
advocating a systemwhich would preservethe character of the continental shelf
as part of the high seas (Ofici alecords, Vol. VI, pp. 1, 71 and 125). This
memorandum attracted very little notice at the Conference, whichconcentrated
its attention on the proposafs of the Commission. Apparently recognizing that
it was swimming against an overwhelming current, the Federal Republic
participated fully in the discussion of the Commission's draft articles.
70. If the main focus of interest at the Conference wasthe nature and extent
of the coastal State's rights, there was also, as paragraph 52 of the Memorial
indicates, some discussjon and revisionof the text of Article 72 of the Com-
mission's draft concerning the delimitation of continental shelf boundaries.
The Federal Republic in that paragraph summarizes the proceedings at the
Conference as follows (p. 56, supra):
"Some attempts were made to replace the flexibIesystem contained in
Article 72 by more rigid rules. But al1amendments proposed in this direc-338 NORTH SEACONTINENTALSHELF
tion met with overwhelming opposition both in the Fourth (Continental
Shelf) Committee (8-9 April 1958) and in the Plenary Session (22 April
19581,and were rejected.
The proposal of the Yugoslav delegate, that the equidistance method
shouId be declared determinant, without reservations, for the apportion-
ment of the continental shelf, was rejected by the Plenary Session of the
Conference by 45 votes to 5(with 1I abstentions). A verylarge majority of
the States was not prepared to make the equidistance method a solely
applicable rule. Rather did the Conference recognize very clearly that the
equidistance method was suitable for the drawing of boundaries only irnder
certain circumstances." (Italics added.)
This summary, if in largemeasure true, gives asomewhat misleadingimpression
as to the outcome of the debate. If aYugoslav proposa1to delete the reference
to special circumstances and to Ieave the equidistance principle standing alone
was rejected bythe Conference, so also was a Venezuelan proposal to delete the
reference to the equidistance principle and to leave the whole rnatter to the
agreement of the States concerned. What the Conference in fact did was to
endorse the text proposed by the International Law Commission, subjectonly
to minor revisions. Under this text, in the absence of an agreement, the equidis-
tance principleis laid down as rhegeneral rule unless another boundary line is
justified by special circumstances.
71. The Federal Republic, it is interesting to note, ultimately voted with the
majority and in favour of the Commission's text, as revised in discussion
(Oficial Records, Vol. VI, p. 98). In an "explanation of vote" the delegate of
the Federal Republic stated:
"in view of the inexact nature of the outer Iimit of the continental shelfas
defined by Article 67, his delegation would have preferred the adoption of
the Venezuelan amendment. When that amendment was rejected, the
delegation of the Federal Republic of Germany had accepted the viewsof
the rnajority of the Committee, subject to an interpretation of the words
'special circumstances' as meaning that any exceptional delimitation of
territorial watersould affect the delimitation of the continental shelf '."
(Italics added.)
This "explanation of vote" isilluminating in two respects. First, the Federal
Republic's delegation voted for the Venezuelanamendment not because of any
doubts as to the merits of the equidistance principle but because of the inexact
definition of the outerIimitof the continental shelf which had been adopted by
the Conference. Secondly,the delegation'scaveat as to its understanding of the
words "special circumstances" related only to any "exceptional delimitation of
territorial waters". That caveat made no reference at aIl to any implications to
be drawn from the lengths of coastlines or to any special considerations
affecting the "apportioning" of "cornmon areas".
72. No particular significance can be attached to the fact, underlined in
paragraph 52 of the Mernorial, that the Yugoslav proposa1to makethe equidis-
tance principle the sole rule was rejected in the Plenary Meeting of the Con-
ference by 47 votes to 5 (with 11 abstentions). The provisions proposed by the
Commission and contained in Article 6 of the Convention do not, however,
make the equidistance principle the sole criterion. They make it the general
lSee also note on p. 318, supraabove. COUNTER-MEMORIAL OF THE NETHERLANDS 339
rule unless another boundary is justified by special circumstances. More
significanceis, therefore, be attached to the fact that in that Plenary Meeting
the text (Art. 72) containing these provisions wasfinallyadoptedby 63votes to
none with only 2 abstentions (Oficial Records,Vol. II, p. 15).
73. It is true that, when at the eighteenth Plenary Meeting the Conference
voted upon the adoption of the Convention as a whole, the Federal Republic
cast its vote against the text of the Convention; for the Convention wasadopted
by 57 votes to3 with 8 abstentions, and one of the three negative votes was that
of the Federal Republic. But each of the three States rejecting the Convention
explained its vote and it does not seem that any of them was motivated by
opposition to Article 6.Japan said that she had voted against the Convention
because no reservations were adrnitted to Articles 67and 68 (now Arts.1and 2)
and because Article 74 (compulsory arbitration) had been rejected by the Con-
ference. Belgium and the Federal RepubIic explained that they had voted
against the Convention because they objected to the criterion of exploitability
in Article 67 (now Art. 1) and equally could not support the Convention
without Article 74, Thus, at the final vote not a single voice was raised against
Article 6. Moreover, if for other reasons the Federal Republic did on 26 April
1958 cast its vote against the Convention, its rejection of the Convention was
short-lived because on 30 October of the same year it put its signature to the
text.
74. In paragraph 52 of the Mernorial, however,emphasis is also given by the
Federal Republic to the fact that Article 12, paragraph 1, of the Convention
allows any State to make reservations to al1 the Articles of the Convention
other than Articles 1-3,andso permitsreservations to Article 6.Thisshows,says
the Federal Republic, that "the substance of Article 6 was neither regarded as
part of customary international law nor accorded any sort of fundamental
significance". The conclusion thus drawn by the Federal Republic from the
reservations clause in Article 12 seems much too sweeping for the following
reasons.
75. A wide freedorn to formulate reservations is normally permitted in
generaï multilateral treaties, andthat even in the caof codifying conventions
largely concerned with the reforrnulation of the existing law. But this is only
for the purpose of facilitating the maximum number of acceptances of the
Convention by allowing States having special problems to make reservations,
provided that these are compatible with the object and purpose of the Conven-
tion. Accordingly, a freedom to make reservations is perfectly consistent with
the acceptance of the provisions of the Conventions as stating the generally
recognized rules of international law applicable in the matters in question.
Neither the Convention on the Territorial Sea and Contiguous Zone nor the
Convention on the High Seas has any clause prohibiting or restricting the
making of reservations, and a number of reservations have in fact been made
to each Convention. Yet no one could deny the fundamental significance of
many of the provisions of these Conventions or the essential character of
many of their other provisions. The same observations may be made with
reference to the Vienna Convention on Diplornatic Relations.
76. A reservations clauseisintroduced prirnarily whenfor particular reasons
it is desired to prohibit altogether reservations to specific provisions of the
Convention. That this was the case with regard to Article 12of the Continental
Shelf Convention is clear from the record of the ninth Plenary Meeting of the
Geneva Conference. Reservations to Articles 1-3were excluded because some340 NORTHSEA CONTINENTAL SHELF
States considered that reservations to these Articles would really deprive the
doctrine of the continental shelf of most of its meaning and destroy the very
basis of the Convention (Oficial Records, Vol. XI,pp. 16-18).But the fact that
reservations to Articles 4-7 were not excluded by the Conference in no way
implies that these Articles werenot considered to be an integral and important
part of the Convention. The records of the Conference and of the proceedings
of the International Law Commission themselvessufficeto contradict any such
implication.
77. Furthermore, as appears from paragraphs below, none of the States
which have become a party to the Convention-already 37 in number-has
formulated a reservation questioning the validity of the rules set out in Article
6. A few States have made declarations of their understandings regarding the
application of "special circumstances" in their own cases. But there isnothing
in the practice of States since the Geneva Conference to support the idea that
Article 6 has not been generally accepted as an integral and important part of
the Convention.
Section C. The Provisionsof Article 6 Are in Harmony with State Practlce
in the Delimitation of Other Maritime and Fresh-Water Boundaries
78. The equidistance principle, proposed by the Committee of Experts and
the International Law Commission and adopted by the Geneva Conference,
was far from being a novelty invented by the Committee of Experts in 1953.
In paragraph 41 of the MemoriaI (p. 38, supra) the Federal Republic indeed
admits that the "equidistance principle" in its median line form has long been
known in international law:
"Median lines as sea, lake or river boundaries have existed for a long
time past. In most cases-leaving out of account irregularities in the
geographical configuration of the coasts opposite each other and provided
no islands lie between them-they effectuate a just and equitable appor-
tionrnent of the waters between the two States concerned."
Itis true that later, in paragraph 46 (p. 50, supra), the Federal Republic
seemsrather less generous when it asserts that-
"the occasionaldivision of rivers, lakes, or inland seas between two States
lying opposite each other by median lines isno proof of a general recogni-
tion of the so-called principle of equidistance also for other geographical
situations than those of opposite coasts" (italics added).
But an examination of the relevant State practiceamply justifies the Federal
Republic's first staternentthat "rnedian lines as sea, lake or river boundaries
have existed for a long tirne past", and shows that the use of rnedian line
boundaries has been much more than occasional.
79. In this connection the Court is asked to refto Annex 15which, without
attempting to be exhaustive, sets out a veTyconsiderable niimber d cases in
which the equidistance principle, chiefly in its median line form, has been
employed in the delimitation of sea, lake or river boundaries. The list of cases
is impressiveenough even if "thalweg" boundaries are left out of account. But
in many cases, as the Dictionnaire de la Terminologiedu Droit International
points out (p. 602), the term Thalweg is used in treaties as denoting the median
line of the navigable channel or, where the river is not navigable, simply the
median line of the river. COUNTER-MEMORIAL OF THE NETHEFZANDS 341
80. As to the Federal Government's contention in paragraph 46 that any
practice in regard to the use of median lineas boundaries between "opposite"
States would be no proof of a general recognition of the principle of equidis-
tance also for other geographical situations, this does not seem to be to the
point. Iisnot here a question of establishing the "equidistance principle" as a
principle universally binding in boundary delimitation and, as such, binding
on the Parties to the present dispute. Between 1945and 1958a new doctrine
developed in international law vesting new rights in coastal States over the
continental shelf adjacent to their coasts. The question here is of the general
recognition, as part of the developrnent of this doctrine, of the rule that, in the
absence of agreement, inter-State boundaries on the continental shelf are to
be delimited by application of the principle of equidistance unless another
boundary isjustified by special circurnstances. In the view of the Netherlands
the relevance of the practice set out in Annex 15 is this: it shows that the
rules, proposed by the Committee of Experts and the International Law
Commission and adopted by the general body of States at the Geneva Confer-
ence, were rules which were iu harmony with the existing practice of States in
thedelimitation of boundaries.This fact-that the rules set out in Article 6 of
the Geneva Convention on the Continental Shelf are not in conflict, but in
clear harmony, with existing principles of boundary delimitation-cannot fail
to reinforce and consolidate the character of those rules as generally recognized
rules of international law.
81. The Federal Republic, however, makes a special point of the novelty
of lateral equidistance boundaries. Contrasting these in paragraph 41(b)
with median lines betweenopposite coasts, it states(p. 38,supra):
"Lareral equidistance boundaries are, in contrast, a novel metbod of
drawing water boundaries; they had not been put to the test before the
Geneva Conference on the Law of the Sea of 1958."
Reverting to the question in paragraph 46, the Federal Republic states (p. 50,
supra) :
"Only relatively recently has the equidistance line been adopted as a
technique for the drawing of maritime boundaries .. . The drawing of a
maritime boundary between two coasts lying opposite each other is, by
the very nature of the circumstances, different from drawing of a lateral
boundary between two neighbouring States into the open sea. For the
drawing of Ioteral boundaries the equidistance rnethod has hardly been
practised at all. If arnong the existing boundaries a small number of
median lines are to be found which grosso modo correspond to an
equidistance Iine, it does not follow therefrorn that the equidistance
line has been generally recognized as the principal rule for the drawing
of maritime boundaries."
30th these statements seernto need considerabte qualification.
82. In the first place, it may be doubted whether lateralequidistance bound-
aries are quite the cornplete novelty whichthe Federal Republic suggests.There
is a substantial body of practice, as the Federal Republic itselfconcedes, which
is of respectable antiquity and spplies the equidistance principle in delimiting
lake boundaries. In the nature of things, an equidistance line in a lake is a
lateral, as well as rnedian line, boundary. Certainly, at each end of the bound-
ary where it approaches the shore an equidistance line ina lake has al1 the
characteristics of a lateral equidistance boundary. Furthermore, although it
may betrue that there islittle evidencein treaties or in the legislation of indivi-
dual States before 1958 of lateral equidistance boundaries in sea areas, it342 NORTH SEA CONTINENTAL SHELF
does not follow that the principle was not acted on in practice when occasion
arose. An equidistance boundary is an expression of the concept that each
State should exercisejurisdiction over the areas which are closer to its Coast
than to that of the other State, and States have always tended to regard pro-
pinquity as a basis for asserting their jurisdiction over maritime areas. The
truth seemsto be that in most cases States did not find it necessaryto conclude
treatiesor legidate about their lateral sea-boundaries before the question of
exploiting the minera1 resources of the seabed and subsoil arose. But even in
regard to treaties, it is not strictly speaking correct that lateral equidistance
boundaries "had never been put to the test before the Geneva Conference on
the Law of the Sea". One instance is the Agreement of 28 April 1924between
Norway and Finland, which prescribed an equidistance line as their boundary
in the Varangerfjord (Amex 15,p. 388,infraA ).other is the Treaty of Peace of
1947 concluded between the Allied and Associated Powers and Italy, which
provided in Article 4 that the boundary between Italy and the Free Territory
of Trieste frorn the shore to the high seas should bea line equidistant from the
coastlines of Italy and the Free Territory; and again in Article 22 that the
seaward boundary between the Free Territory and Yugoslavia should likewise
be a line of equidistance. The Court may find it significant that in this major
collectivetreaty, when it was necessaryto definea sea-frontier, the equidistance
principle was the solution adopted.
83, Secondly, the use of the equidistance principle in its median line form
for delirnitingmaritime boundaries seernsto have been more widelyrecognized
than the Federal Republic's second statement might imply. Quite apart from
the fact that a nurnber of treaties provided expressly for a median line
boundary in certain straits and channels (see Annex 15 D), the replies of
governments to the questionnaire for the Hague Codification Conference,
1930, were unanimous in endorsing the median line as the boundary be-
tween overtapping territorial seas in straits. Point VI1 of the questionnaire
asked for information concerning:
"Conditions determining what are territorial waters within a strait
connecting two areas of open seas or the open sea and an inland sea:
(a) when the coasts belong to a single State;
(6) when they belong to two or more States."
Nineteen States replied, ofwhich 15 without any hesitation or qualification
specifiedthe median line as the boundary in casesunder (b) whenthe territorial
seas overlap; the other 4 did not deal with the point (Proceedings of rhe Con-
ference, Vol. II, Bases of Discussion, pp. 55 to 59). Among the States which
thus endorsed the median line were Germany, Denmark and the Netherlands.
Furthermore, the draft Convention subrnitted to governrnents by the League
of Nations Committee of Experts in connection with the questionnaire also
provided for a median line boundary in straits; and the Rapporteur of this
Cornmittee was the distinguished German international lawyer, M. Schücking
(ibid, p. 193).
84. No doubt, there are elements of novelty inthe provisions of Article 6
of the Geneva Convention on the Continental Shelf. Not only was the doctrine
of the continental shelf itself still new in 1958,but the practice on which it was
based still dealt with thé problem of boundaries in entirely general terms.
The provisions of Article;6 were admittedly a new element grafted on to the
continental shelfdoctrine atthe Geneva Conference.But this element,as already
pointed out, was not novel in the sense of being a new concept or one out of
harmony with existing principles for the delimitation of maritime boundaries. COUNTER-MEMORIALOF THE NETHERLANDS 343
On the contrary, it was an expression of a principle already known and accepted
in State practice in relation to maritime boundaries. That the provisions of
Article 6 are not only in accord with previous practice and principle but are
generally accepted today as the modern law governingcontinental shelfbound-
aries is amply confirmed by the practice of States since the Geneva Conference
of 1958.
SectionD. TheStatePracticeSince the GenevaConferenceof 1958
85. ln paragraph 54 of the Mernorial (p. 57,supra) the FederaI Republic as-
serts that the equidistance principle cannot be considered as having been
generally accepted as a niIe oflaw by the international community :
"This is excluded not only by the fact that the Convention has, up to
now, been accepted only by a minority of the States (to date 371, and that
reservations to Article 6 have been made by some States, but above al1
by the fact that state practice necessary for the development of such a
customary rule isup to now still Iacking."
The reasons there given by the Federal Republic for its assertion, as will be
shown, are wholly unconvincing. But it is necessary first to point out that the
assertion itself presents the issue incorrectly. It is not the equidistance rule
pure and simple which is generally accepted by the international community
as the appIicabIe law today ; it is the "equidistance rule unlessanother boundary
isjustijîedby special circumstances".
86. The argument that "the Convention has, up to now, been accepted
only by the minority of the States (to date 37)" isa little surprising. The nurnber
of acceptancesl--37 in underten years-is decidediyimpressive by anystandards
in the light of the past record of the dilatoriness of Statesincarrying out the
process of acceptance. This number, moreover, exceedsby four the number of
acceptancessofar givento the Territorial Seaand Contiguous Zone Convention,
and is onIy three short of the number of acceptances of the High Seas Conven-
tion, a Convention recognized to be primarily declaratory of customary law.
In short, the fact that 37 States have already taken the forma1steps necessary
to establish definitivelytheir acceptance ofthe Convention can only be regarded
as very solid evidence of the general acceptance of the Geneva Convention on
the Continental Shelf by the international community.
87. Nor is the evidentiary value of the 37 acceptances of the Continental
Shelf Convention materially weakened by the so-called "reservations" to
Article 6. Only four Governments have made observations relating to Article 6,
when signing or accepting the Convention. The Iranian observation, made
at the time of signature, which the Federal Republic considers to be "without
interest", reads:
"Article 6: With respect to the phrase 'and unless another boundary
is justified by special circumstances' includedin paragraphs 1 and 2 of
this Article, the Jranian Govemment accerits this ~hrase on the under-
standing th& one method of determiningathe boindary line in special
circumstances would be that of measurement from the hinh-w-ter mark."
This observation. which reflects a ~osition alreadv taken bv Iran at the
Conference, is by no means without intèrest ;for it shows that 1rak gave special
attention to Article 6 and, having done so, fully accepted the "equidistance-
l For convenience,the word "acceptances" is here usednot as a technicalterm,
but as coverjngratifications,accessionand "notificationsof succession".344 NORTH SEA CONTINENTAL SHELF
special circumstances" provisions of the Article, subject only toan understand-
ing as to a particular interpretation of "special circumstances".
88. Yugoslavia's observation, which is not mentioned in the Mernorial,
and which also reflects a position taken by her at the Conference, reads:
"Subject to the following reservation in respect of Article 6 of the
Convention :
In delimiting its continental shelf, Yugoslavia recognizes no 'special
circurnstances' whichshould influencethat delimitation."
This observation, whether it be regarded as a "reservation" or as an inter-
pretative "decfaration", certainly does nothing to weaken the authority of the
Convention or of Article 6 as the generally accepted law. On the contrary, it
assumes the general validity of the provisions of Article 6 and for that reason
declares Yugoslavia's understanding as to the appIication of the "special
circumstances" clause to her own continental shelf.
89. Venezuela, when signing the Convention, made the following observa-
tion :
"The Republic of Venezuela declares with reference to Article 6 that
there are special circumstances to be taken into account in the fallowing
areas: the Gulf of Paria in so far as )theboundary is not determinedby
existing agreements, and in zones adjacent thereto; the area between the
coast of Venezuela and the island of Aruba; and the Gulf of Venezuela."
Her instrument of ratification, however, simply said:
"Reservation made upon ratification ... with express reservation in
respect of Article 6 of the said Convention."
This reservation is interpreted in the Mernorial-no doubt correctly-not as a
general rejection ofArticle 6 but as a reservation with respectto its application
"in certain areas off the Venezuelan coast". Because of the implications of the
reservation for the parts of the Kingdom of the Netherlands situated in the
Caribbean Sea, the Kingdom, when ratifying the Convention, filed a formal
objection to the Venezuelan reservation l.
90. The last of the four observations containing a reference to Article 6 is
the "Declaration" made by France on the occasion of her ratification of the
Convention :
"In the absence of specific agreement, the Governrnent of the French
Republic will not accept that any boundary of the continental shelf deter-
mined by application of the principle of equidistance shall be invoked
against it:
if such boundary is calculated from base-lines established after 29
April 1958;
if it extends beyond the 200-metreisobath;
if it lies in areas where, in the Government's opinion, there are
special circumstances within the meaning of Article 6, paragraphs 1
and 2, that isto Say,the Bay of Biscay, the Bay of Granville, and the
seaareas of the Straitsof Dover and of the North Sea off the French
coast." 4
The firsttwo of these conditions relate to special points which are of no interest
in the present connection. As to the third condition, which is clearly of interest,
the Federal Republic cornrnents (p.58, supra) :
Annex 3III. COUNTER-MEMORIAL OF THE NETHERLANDS 345
"A point of particular interest in this reservation is that it is based on
the viewthat the equidistance line,as far as it is to be applied at all, should
be usedas a method ofapportioning submarine areas onlynear the Atlantic
coast (to a depth of 200 metres) and shouid in particular not be used for
the apportionment of the North Sea."
This comment appears to place much too large an interpretation on the French
declaration.
91. Here also it seems clear that the declaration is not a general objection
to or reservation in respect of Article 6. The declaration, by its very terms,
assumes the application of the provisions of Article 6. Its object is only to
state the French Govemment's views as to the existence of "special circum-
stances" in a number of areas off the French coast. The French declaration
respecting Article 6, it may be added, gave rise to formal objections on the
part of the Netherlands, the United Kingdom, the United States and Yugo-
slavial.
92. In short, the four observations which contain references to Article 6,
so far from weakening the authority of Article 6 as an expression of the gener-
ally recognized rules of law goveming continental shelf boundaries, only serve
to confirm it. By invoking the exception of "special circumstances" included
in Article 6, the four States concerned expressly recognized the validity, and
claimed the benefits, of the provisions of that Article.
93. The Federal Republic itself, as already mentioned, voted against the
adoption of the Convention at the Geneva Conference and has not sinceratified
or acceded to the Convention. It is, however, veryfar from being the case that
the Federal Republic has persisted in its opposition to the Convention orto the
principles which the Convention contains. On the contrary, as pointed out
inPart 1 (para. 21 above), the Federal RepubIic signed the Convention on 30
October 1958,only one day before the Convention ceased to be open for signa-
ture. Inother words, having reconsideredthe matter and having fullystudied the
provisions of the Convention, the Federal Republic decided to associate itself
with the Convention adopted at Geneva by attaching its signature to the text.
After 30 October 1958 the Federal Republic, without any prior signature,
would still have been free to become a party to the Convention by "accession":
so that there can be no doubt that on that date the Federal Republic very
deliberately chose to associate itself with the Convention.
Furthemore, when signing the Convention, the FederaI Government evi-
dently gave every attention to the question of the acceptability to the FederaI
Republic of the individual provisions of the Convention; for it did accompany
its signatureof the Convention with a special declaration recording its under-
standing of one Article. This was Article 5, with regard to which it declared
that, in its opinion, paragraph 1 "guarantees the exercise of fishing rights in
the waters above the continental shelf in the manner hitherto in practice" 2.
The Court may think it somewhat significantthat, whereas the Federal Repub-
lic considered it necessary with respect to Article 5 to reserve its position in
regard to freedorn of fisheries in the high seas above the continental shelf,
it made no reservation nor anyother form of decluration with respect to the
provisions ofArticle 6 concerni~gthedelimitafion ofcontinentalshelfboundnries.
The significanceof thiscircumstance is reinforced by the fact that the FederaI
RepubIic did not voice any objection or misgivingsin regard to Article 6 of the
I Annex 3 1.I.346 NORTH SEACONTINENTAL SHELF
Convention either in its Continental Shelf Proclamation of 20 January 1964 l
or in the "Exposé des Motifs" accompanying the Bill to give effect to the
Proclamation2. It isfurther reinforced by the fact that subsequently theFederal
Republic entered into no less than three treaties providing for delimitations
which are in full conformity with the principles set out in Article 6 (see infra,
paras. 97 and 99).
94. If the acceptaaces of the Convention by States since 1958 testify, by
their number and character, to the general recognition by the international
community of Article 6 as expressing the rules of international 1awgoverning
continental shelf boundaries, so also does the prartice of.States in uppiying
the Convention. In appreciating that practice it is again necessary to keep in
rnind-as the FederaI Republic does not do in its Mernorial-that the rule laid
down in Article 6 is not the application of the equidistance principle pure and
simple, but its application "unless another boundary is justified by special
circumstances". When that point is kept in mind, it at once becomes apparent
that the practice of States since 1958,with the single exception of the Federal
Republic's position in the present case, gives solid support to the recognition
of Article 6 as the expression of the general rules of international law governing
continental shelf boundaries today.
95. In paragraph 57 of the Memorial the Federal Republic lists three
precedents in which States not yet parties to the Convention bave applied the
principle of equidistance, making a great point of the fact that each of them
was a case of "opposite coasts". The first is the Island of Malta Act 1960,
making provision as to the exploration and exploitation of the continental
shelf, which states that, in the absence of agreement, the boundary is to be-
"the median Iine, namely, a Iine every point of which is equidistant from
the nearest points of the base-lines".
Malta being a mid-Mediterranean island, the Malta Act was necessarily
limited to "median lines" between "opposite" coasts. It may, however, be
noted that subsequently Malta, on 21 September 1964,becarne a party to the
Convention and thus subscribed to the provisions of Article 6 in toto,
96. The second example mentioned in the Memorial is the Soviet-Finnish
Agreement of May 1965 regarding the Boundanes of Sea Waters and the
Continental Shelf in the Gulf of FinIand, althaugh it would appear that in
fact both the Soviet Union and Finland had already become parties to the
Geneva Convention before they concluded this Agreement. On this Agreement
the Federal Republic comments (p.59, supro):
"This treaty, in establishing the boundary near the Coast (Article l),
where it may be regarded as a lateral boundary between adjacent States,
does not followthe principle of equidistance. Onlyon itsseawardextension
where it becomes a boundary between two opposite coasts, it is based on
the principle of the rnedian line which isreferred to in the treaty (Articles 2
and 3)."
If it may be true that under Article 1 the inshore boundary between the two
States does not in al1respects follow the equidistance line, the Agreement itself
supplies the explanation (Annex 15, p. 388, infra)That part of the boundary is
governed by the provisions of the Peace Treaties of 1940 and 1947, so that
Article 1 reflects a special circurnstance already existing when the Agreement
l Annex 11. COUNTER-MEMORIAL OF THE NETHERLANDS 347
of 1965was concluded. In the areas to seaward of the PeaceTreaties boundary,
on theother hand, Articles 2 and 3 of the Agreement prescribethe median line.
If in these areas the Soviet and Finnish coasts assume the appearance of
"opposite" coasts, it is no less tme that the median line boundary through
these areas is a continuation of a lateral boundary dividing two "adjacent"
States. Nor does the Federal Republic mention that in the recitals to the
Agreement the two States make an express reference to their reliance upon
the 1958Geneva Convention on the Continental Shelf.
97. The third example mentioned in the Memorial is the Protocol rothe
TreatybetweenDenmarkandtheFederafRepublicof9June1965.This Protocol,
after noting the existence of divergent views between the Parties concerning
the principles applicableto the delimitation of the continental shelfoftheNorth
Sea, provides with regard to the Baltic (according to p. 59, supra, of the Me-
morial):
"With respect tothe continental shelfadjacent to the coasts of the Baltic
Sea which are opposite each other, it is agreed that the median line shall
be the boundary. Accordingly, both Contracting Parties declare that they
will raise no basic objections to the other Contracting Partdelimitingits
part of the continentalshelf of the Baltic Sea on the basis of themedian
line."(Italics added.)
Were also the sharp distinction drawn by the Federal Republic between
"opposite" and "adjacent" coasts seems somewhat strained. Any delimitation
by Denmark or by the Federal Republic of "its part of the continental shelf
ofthe Baltic Sea on the basis of the median line" must at its westernend merge
into the lateral "equidistant" line drawn from the shore through first the
territorial seas and then the continental shelves of the two countries. To make
a sharp distinction at this western end between "adjacent" and "opposite"
coasts and betweenthe "laterai" and the "median" character of the equidistant
line seems altogether arbitrary.
98. In paragraphs 58 and 6ûthe Federal Republic tums its attention to the
practice, which it evidently finds somewhat embarrassing, of a number of
North Sea coastal States, including itself. This practice, with which the Court
will already be largely farniliar, consists in the first place of five treaties in
which the continental shelf boundaries between five different pairs of North
Sea States are delimited purely and simply by application of the equidistance
principle:
(a) UnitedKingdom-Norwayof 10 March 1965;
(b) Netherlands-UnitedKingdom of 6 October 1965;
(cl Denmark-Norwayof 8 December 1965;
(d) Denmark-United Kingdom of 3 March 1966;
(el Netherbnds-Denmarkof 31 March 1966.
These Agreements were al1 separately negotiated and concluded. Moreover,
Norway, who is a party to two of these Agreements, acted on the basis of the
equidistance principle, aIthough she is not herself yet a party to the Geneva
Convention-a point not mentioned in the Memorial. Indeed, it may be added
in passing that the Netherlands also adopted the equidistance principle in its
Agreement with the United Kingdom at a time when the Netherlands had not
yet ratified the Geneva Convention.
In addition, Belgium has recently adopted the equidistance principle for the
delimitation of her continental shelf boundaries, although she too is not a
party to the Continental Shelf Convention. On 23 October 1967 the Belgian
Governrnent introdu~ed in the Belgian Parliament a "Projet de Loi", Article 2348 NORTH SEA CONnNENTAL SHELF
of which provides that Belgium's boundary with the United Kingdom is
determined by the median line and her boundaries both with France and the
Netherlands by the line of equidistance (Annex 14,p. 388, infra). Furthermore,
the "Exposédes Motifs''explainingthe BillexpresslyStatesthat theseprovisions
wereadopted in conformity with Article 6, paragraphs 1 and 2, of the Geneva
Convention.
99. The North Sea practice also comprises two treaties concluded by the
Federal Republic itself concerning the lateral delimitation of the continental
shelf near the coast:
(a) Federal Republic-Netherlands of 1 December 1964;
(b) Federal Republic-Denmark of 9 June 1965.
The Federal Republic maintains that these treaties cannot be considered
precedents for the recognition of the equidistance method in the North Sea
Cp.61, supra):
"It is true that in the treaty between Germany and the Netherlands the
boundary line, to some extent, folIowsin fact the equidistance line, without
however referring to the equidistance method, and that the seaward
terminus of the Gerrnan-Danish partial boundary is equidistant from the
Gerrnan and the Danish coasts. These boundaries, however, had been
agreed upon only because both sides were interested iaspeedydetermina-
tion of the boundary, and because the boundary Iine, even if it in fact fol-
lowed the equidistant line to some extent in the vicinity ofthe coast, was
not considered inequitable."
These explanations only serve to underline the difficultyin which the Federal
Republic finds itself in regard to the North Sea practice.
100. The real point at issue is not whether the two "partial boundary"
treaties rnaybe considered as precedents for the recognition of the "equidistant
method" in the North Sea, though the Netherlands thinks that they clearly
are such precedents. lt is whether they constitute yet further instances of the
recognition of the rules contained in Article 6 of the Geneva Convention as
the generally accepted law regarding the delimitation of continental shelf
boundaries; and both treaties seem to fall squarely within the provisions of
Article6, paragraph 2, of the Convention. Ineach case the treaty takes account
of the special circumstance that an inshore boundary line has already been
fixed under a previous treaty between the Parties concerned. In each case,
starting from the most seaward point of the already existing line, the treaty
proceeds to delimit for a considerable distance out to sea a continental shelf
boundary which in fact follows the equidistance line. Both treaties are therefore
in perfect harmony with the "equidistance-special circurnstances" rules found
in Article 12 of the Territorial Sea and Contiguous Zone Convention and in
Article 6of the Continental Shelf Convention.
101.Asto the value of theseNorth Seatreaties as precedents, what difference
can it make that they do not refer expressly to the "equidistance principle"
ifin fact they determine the boundary by application of that principle? Further-
more, if the Federal Republic did not then recognize the general character of
the provisions of Article 6 of the Geneva Convention, why in the case of its
Treaty with the Netherlands did it in the Joint Minutes of 4 August 1964
(Memorial, Annex 4) speak of the Treaty as constituting "an agreement in
accordance with the first sentence of paragraph 2 of Article 6 of the Geneva
Conventio onn the ContinentaI Shelf, dated 29 Apri1958"? And why did it in
those sarne Joint Minutes underline that the boundary was being determined COUNTER-MEMORIALOF THE NETHERLANDS 349
"with due regard to the special circrrmstancesprevailing in the rnouth of the
Ems", if it did not have in mind the language of Article 6, paragraph .2,of the
Geneva Convention? These questions are al1 the more pertinent when it is
recalled that both in its Continental Shelf Proclamation of 20 January 1964
and in the Exposédes Motifs of the Law giving effectto the Proclamation the
Federal Republic emphasized the significance of the Geneva Convention of
1958in the development of general international law regarding the continental
shelf (Counter-Mernorial, Annexes 10 and 11).
102. Again, what difference can it make that in each case both sides were
"interested in a speedy determination of the boundary" if in fact, after due
consideration of their interests, they determined the boundary by applying the
principle of equidistance in the light of the special circumstances-the very
solution contemplated by Article 6 of the Convention?
103. And what is the Court to understand by the final explanation given by
the Federal Republic: "Because the boundary line, even if it in fact followed
the equidistant line to someextent in the viciniof the coast, wasnot considered
inequitable"?(italics added). Presumably that the Federal Republic recognizes
that a determination of the lateral boundaries of her continental shelf in the
North Sea in accordancewith theprinciples envisagedin Article 6 of the Geneva
Convention gives a perfectly equitable result at any ratefor a certain distance
out to sea. If such is the meaning of the Federal Republic's explanation, it
is pertinent to point out that the statement that. the boundaries fixed in the
two treaties infact follow "the equidistance Iine to sorne extent in the vicinify
of the coast" is a little rnisleading. In the vicinity of the coast the boundaries
in fact giveeffect to special circumstances. For the special situation in the Ems
Estuary between the Netherlands and the Federal Republic the Court may
refer to paragraph 29 above.Zt isinextendingtheIineover the continentalshelfof
the open North Seo that these rwo treaties concluded by the Federaï Republic
determine the bourrdaryby application ofthe principle of equidistance in the
pnamler envisaged by Article 6 of the Convention,
104. The Federal Republic, however, claimsthat the two "partial boundary"
treaties cannot be invoked against it as precedents for the application of the
principle ofequidistancein the North Seabecauseit "stated clearly whensigning
that it did not recognize the equidistance method as determining the extended
seaward course of the boundaries in the North Sa". It is true that in its Joint
Minutes with the Netherlands of 4 August 1964 and in its Protocol with
Denmark of 9 June 1965the Federal Republic reserved its position with regard
to the further-seaward-course of the boundary; and from this it may follow
that the "partial boundary" treaties cannot be invoked as themselvesimposing
a controctual obligation on Germany to complete its continental shelf bound-
aries seawards by application of the equidistance principle. But it does not at
al1follow that these two treaties cannot be invoked as precedents-which they
manifestly are-of the determination of continental shelf boundaries in the
North Sea by application of theprinciples containedin Articie 6 of the Geneva
Convention. In short, the solemnfact is that al1the continental shelfboundaries,
including those of the Federal Republic, so far established in the North Sea
as wellas in the Baltic reflect the principles of Article 6 of the Geneva Conven-
tion.
105. Two further arguments of the Federal Republic in relation to the State
practice require brief notice. One is a general argument in paragraph 56 of the
Mernorial to the effect that the practice does not show such a consistency and
uniformity of usage as would sufficeto establish the "equidistance principle"350 NORTH SEA CONTINENTAL SHELF
as a rule of customary law. This argument, as the foregoing review of the
practice shows, is highIy questionable merely on the facts. But it is in any
event beside the point since, as already emphasized, it is not the equidistance
principle pure and simple which is in issue but the "equidistance principle-
special circumstances" rule of the Geneva Convention. For the general recog-
nition of this rule there is abundant evidence in the State practice since1958.
106. The other argument-in paragraph 594s to the effect that the North
Sea practice cannot be regarded as showing that "the equidistance method has
been promoted to the status of a rule of regional customary law valid for the
North Sea". This argument is supported by the contentions that : (a) any such
view is precluded by the fact that France in her resemation to Article 6 ex-
pressly excluded the equidistance method for the drawing of boundaries in the
North Sea; and (6) no such regional rule can be established without the con-
currence of Germany. The whole of this argument is again vitiated by its con-
centration on "the equidistancemethod" instead of on the "equidistance-special
circumstances" rule. Nor, as pointed out in paragraph 90 above, is it correct to
say that France's declaration seeks to negative altogether the application of the
provisions of Article 6, including the equidistance principle, in the NorthSea.
On the contrary,her declaration adrnits the application of the Article and claims
the benefit of the "special circumstances" provision.In any event, the question
is not one as to the establishment of a particular regional custom. It concerns
rather the recognition of the rules set out in Article 6 of the Convention as the
generally accepted mles of international law governing the delimitation of the
continental shelf. This, as already pointed out, the practice of States, including
that of the Federal Republic, since 1958abundantly shows.
107. A final argument put forward by the Federal Republic in paragraph 61
of the Memorial must now be noticed: namely that Article 6 cannot be said to
have become generalinternational lawmerelybecausethis iswhat has happened
in the case of Articles 1to 3 of the Geneva Convention. It argues that the pro-
visions of Article6are not so indissolubly bound up with the basic principles in
Articles 1to 3 as necessarilyto go with them (p. 61, supra):
"It is true thaa necessary, logicaIconsequence of the recognition ofthe
right of the coastal State over the continentaI shelf isthat, in the case of
conflicting clairns of several coastal States adjacent to the same con-
tinental shelf,an apportionment must be made between them, and that
the international legal order must provide methods and standards for the
apportionment. There is, however, no cogent reason that this apportion-
ment must be made according to the equidistance method. The drafting of
Article 6 shows that the equidistance method was onIy one method among
others of attaining ajust and equitable apportionment, and that the objec-
tions against making the equidistance method the exclusive rule were so
strong that the equidistance method was adopted only under thecondition
that it would not apply in the presence of any 'special circumstances'.
The apportionment of a continental shelf shared by several States has not
been made easier by Article 6. Even when Article 6 is applied, the question
remains open whether the equidistance method is suitable or whether in a
concrete case 'special circumstances' exist whichwouId justify another
boundary line."
108. Thisargument is again misdirected by reason of its concentration on the
"equidistance pnnciple" pure and simple instead of on the equidistance-
special circumstances rule. In the context of Article 6 it is both irrelevant and
inadmissible to say that "the equidistance method is only one method among COUNTER-MEMOREAL OF THE NE~ERLANDS 351
others of attaining ajust and equitable apportionment". It is irrelevant because
the Article itself admits the possibility of another boundary line if such is
justified by "special circumstances". It is inadmissible because Article 6 never-
theless makes the equidistance principle the general rule unlessspecial circum-
srances justify another boundary. Under the provisions of Article &the
authoritative statement of the generally recognized principles-the equidistance
principle is not just one method arnong others; it is the general rule.
109. Moreover, there were cogent reasons why Article 6 should state the
equidistance princjple as the general nile-reasons which are Iinked to the
ratiolegiûof Articles 1 and 2.Under Articles 1and 2each coastal State is now
recognized to possess ipsojure sovereirg ihts ofexploration andexploitation
over the seabedand subsoilof the submarine areas adjacentto itscoast. Inherent
in the concept of a coastal State's tiipsojure to the areas adjacent to its coast
isthe principle that areas nearer to one State than to any other State are tbe
presumed to fa11within its boundaries rather than within those of a more
distant State. Clearly, it is this principle which also underlies the delimitation
of "median line" and "equidistant line" boundaries in other maritime and
fresh-water contexts. In other words, this principle establishes a direct and
essential link between the provisions of Article 6 regarding the equidistance
principle and the basic concept of the continenta1 shelfrecognized in Articles 1
and 2 of the Geneva Convention of 1958.
110. AccordingIy, under Articles 1 and 2,as well as under Article 6, of the
Geneva Convention it is incurnbent on any State which lays claim to areas of
continental shelf which are nearer to the coast of another State to establish the
legal grounds on which its title should be preferred to that of the nearer State.352 NORTH SEA CONTINENTAL SHELF
. CHAPTER 4
THE APPLICABLE PRINClPLES STATED IN ARTICLE 6 OF THE
CONVENTION ON THE CONTINENTAL SHELF
111. Article 6 of the Geneva Convention, as the Court knows, has two
principal paragraphs, the first of which applies to States whose coasts are
opposite each other and the second of which applies to States whose
territories are adjacent to each other. The present case between the Netherlands
and the Federal Republic of Germany manifestly relates to the delimitation of
the continental shelf between adjacent States, as does also the other case before
the Court between Denmark and the Federal Republic. Accordingly, it is
paragraph 2 of Article 6 which primarily interests the Court.
112. Paragraph 2 ofArticle6,like paragraph 1,contains two main provisions,
one stating that the boundary shall be determined by agreement between the
States concerned and the other laying down the rule for cases where no agree-
ment is reached. In the present instance, negotiations for a determination of
the boundary by agreement have taken place in each of the two cases before the
Court, and have resulted in a deadlock; and in each case the "Special Agree-
ment", in itsfourthrecital, expressly records the existence of a "disagreement
between the Parties which could not be settled by detailed negotiations". It
followsthat in the two cases in whichthe Court is now calledupon to decidethe
applicable "principles and rules of international law", it is only the second pro-
vision of paragraph 2 of Article 6 which is pertinent:
"ln the absence of agreement, and unIess 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."
113. Before examiningthe rneaningof thisprovision, the Netherlands finds it
necessaryto draw the Court's attention to certain points touching the provisions
of both paragraphs 1and 2 of Article 6.
First, quite apart from the close similarity of the language, the substantive
rules stated respectively for "opposite" and "adjacent" States in the two
paragraphs are precisely the same. Each paragraph opens with a provision for
determination of the boundary by agreement and then provides, in the absence
of agreement and unless another boundary isjustified by specialcircumstances,
forthe determination of the boundary by application of the principle of equidis-
tance. No doubt, paragraph 1 states that "the boundary is the median line
every point of which isequidistant from the nearespt oints", etc.,whereas
paragraph 2 states simply that "the boundary shall be determined by applica-
tion of the principle of equidistance from the nearest points", etc. But this
difference is purely one of terminology and in each paragraph the rule-the
principle ofequidistancefrom the nearest pointsofthe baselinesofthe territorial
sea, unless another boundary isjustified byspecial circurnstances-is the same.
Accordingly, Article 6 furnishesno basis whatever for the theme which recurs
more than once inthe Memorial that "median lines" between opposite States
are both more generally recognized and more generally equitable than lateral
equidistance Iines. On the contrary, Article 6 does not distinguish in any way
between the treatment of the two cases. COUNTER-MEMORlALOF THE NETHERLANDS 353
114. Secondly, there is not the slightest trace in Article6 of the idea put
forward in paragraphs 63-67 of the Memorial that, whereas the application of
the equidistance principie may be equitable and appropriate in the case of
median lines between opposite States and also of Iateral lines betweenadjacent
States near the coast, it is altogether unsuitable for the delimitation of "larger
submarineareas" out in the open sea. In those paragraphs the Federal Republic
argues that in the larger submarine areas out to sea "the equidistance principle
lends disproportionate significanceto special configurations of the coast", In
support of this argument it cites an observation of Mr. S. Hsu in the Inter-
national Law Commission in 1951 opposing the solution of prolonging the
territorial sea boundary over the continental shelf:
"The dividing-line would be relatively unimportant in the case of
territorial waters, which were a narrow belt, but might take on great
significanceand cause injusticeif applied to continental shelveswhich were
sometimes of considerable extent."
It is a sufficientcommentary on this argument that the Fedetal Republic can
only base it on an observation, made with reference to extending the dividing
line of territorial waters seawardsin 1951,before the Commission had obtained
the advice of the Committee of Experts and before it had even begun its study
of the territorial sea (seesupra, paras. 56-58). The Federal Republic passes over
the fact that, notwithstanding the observation of Mr. S. Hsu, the Committee of
Experts in its report in 1953 and the International Law Commission in its
reports of 1953and 1956not only adopted the same principles of delimitation
for the continental shelfasforthe territorial sea but underlined the importance
of doing so. The Committee of Experts, the Commission and the Geneva
Conference were well aware of the existence of large expanses of continental
shelf in the NorthSea, Baltic, West Atlantic, China Seas and other areas. Yet
in none of these three bodies was any distinction drawn between large or small
areas of continental shelf or between near-shore or distant areas. The
equidistance principte was deliberately adopted by the Commission and the
Conference as thegenevalrule everywhereexcept only where another boundary
isjustified by "special circumstances".
115. Again, the Federal Republic seeks in paragraph 67(p. 65,supra)tojustify
its distinction betweennear-shore and more distant areas by an argument which
attempts to reduce the application of the equidistance principIe to absurdity:
"The fact that the equidistance method is unsuitable for the apportion-
ment of extensive sea areas far from the coast has become obvious since
exploitation of the sea-bed at greater depths and at greater distances from
the coast calls for a Iegal settlement."
And then, in figure 15 it presents a dramatic diagram of the whole North
Atlantic Ocean divided among its littoral States by equidistance boundaries.
Leavingasideanyquestion asto theparticular boundaries shownon the diagram,
the Netherlandsconsiders that thisargument is completely falacious. The prob-
lem thrown up by technological advances in the exploration and exploitation
of the ocean deeps-a problem already raised by Malta in the United Nations-
concerns the limit to be placed on the veiy concept of the continentaEshelf,
having regard to its indeterminate deîïnition in Article 1 of the Convention. It
does not concern the principles of delimitation already accepted for areas which
undeniably faII within the concept of the continental shelf; and its irrelevance
in the present case is underlined by the fact that none of the submarine areas in
dispute are more than 55 metres below the surface of the sea or more than 160
sea miles from land.354 NORTH SEA CONTINENTAL SHELF
The fallacy of the argument in the present case is indeed underlined by the
position taken by the Federal Republic in the Memorial in regard to the
application of the equidistance principle in the North Sea. In paragraphs 89
and 90the Federal Republic expressly records its recognition of the appro-
priateness and equitableness of the median line boundary accruing to the
United Kingdorn in the North Sea under the equidistant principle, despite the
largeness of the "share" of the North Sea which the United Kingdom thus
obtains. At the same time, the Federal Republic underlines that this large share
is "the consequence of natural geographical conditions". True, it argues that
it is the "land mass" of the British Isles whichjustifies the large British share.
Under Article 1 of the Geneva Convention, however, it is not land massbut
coast to which the continental shelf appertains; and under Article 6 it is the
configurations of the coast-the baselines of the territorial sea-which con-
stitute the "natural geographical conditions" that determine the boundaries of
the shelf and thus the size of the "share".
116. Another argument put forward by the Federal Republic to justify the
above-mentioned distinction is that the diference in the language of Article 12
of the Territorial Sea Convention1 and Article 6 of the Continental Shelf
Convention shows the Geneva Conference to have recognized that the equidis-
tance principle hasa widerscopeofapplicatiolzirrregard IOtheterritorialsea than
in regardtu the continental slielfHaving observed in paragaph 64 that, from
the point of view of control over the territorial sea, distance from the coast is
an indispensable criterion for the apportionment of territorial waters, the
Federal Republic observes (pp. 62-63, supra):
(1) Under Article 12of the Territorial Sea Convention the equidistance
method does not apply only "where it is necessary by reason of historic
title or other special circurnstancesto delimit the territorial seas of the two
States in a way which is at variance with this provision";
(2) Under Article 6 in the case of the Continental ShelfConvention "the
equidistance method does not apply already where another boundary line
isjiistified by special circumstances".(Italics in the Mernorial.)
This interpretation of the two Articles, even if it were sound, would not
advance the Federal Republic's argument one inch; for it remains the fact that
the Geneva Conference and Article 6 of the Continental ShelfConvention made
no distinction whatever between near-shore and more distant areas of the
continental shelf. But the differencein wording between the two Articles is far
from justifying the conclusion drawn from it by the Federal Republic.
117. The International Law Commission, the Court will recall, insisted that
the principles for delimiting the boundary of the territorial sea and the con-
tinental shelf ought to be the same. In the final draft adopted in 1956 the
wording of the Commission's provisions regardingthe territorial sea (Art. 12,
para. 1, and Art. 14,para. 1)and its provisions regarding the continental shelf
(Art. 72) was, in fact, alrnost indentical andin the form: "In the absence of
agreementand unlessanother boundary isjiistified by spesial circumstances, the
boundary is drawn by application of the principle of equidistance." The
Geneva Conference, it is true, reworded the territorial sea formula (Art, 12,
para. 1)to that givenin the Memorial. At the same time, however, it completely
redrafted the whole paragraph arrdit did saforreasonsquite unconnectedwith
the considerations adduced by the Federal Republic.Norway pointed out-as COUNTER-MEMORIALOF THE NETHERLANDS 355
indeed shehad to the Commission-that a rule simpIyproviding for the applica-
tion of the principle of equidistance. unlessanother boundary is necessitated by
speciat circimst~nces, was not adequate in the case of theterritorialseabecausi
of thepossibility fhatthe States concernedrnightbe claimingdgerent breadthsof
the territorial sea. AccordingIy, what was needed instead for the territorial sea
was a negative ruleforbiddienag chSfate to extend ifs ferrirorialsea beyond the
equidisfanceline. The Conference adopted the Nonvegian proposal, at the same
time deciding that it was still essential to make allowance for "special circum-
stances" and, in particular, for historic claims. The new negative form of the
Article meantthat it had to be completely recast, and this was donein the First
Comrnittee, whereas the continental shelf was dealt with in the Fourth Com-
mittee. There isno indication in the records of the Conferencethat the difference
in the formulation of the territorial sea and continental shelf provisions was
due to anythingelse than the difficultybrought up byNorway and thevicissitudes
of drafting in different Committees.
118. Furthermore, it is only necessary to glance at paragraph 82 of the
International Law Commission's Report for 1953 to see how strained is the
inference whichthe Federal Republic seeks to draw from the differencebetween
the word "necessary"in the Territorial Sea Convention and the word ''justi)îed"
in the Continental Shelf Convention (Yearbook, 1953,Vol. II, p. 216). In that
paragraph the Commission actually explains the phrase "unless another
boundary is justified by special circumstances" by reference to the need to
make provision for modifications of the equidistant line "necessitated"by the
special circumstances of the case.
119. Nor is it possible to attach any weight to the criticism directed against
the equidistance principle in paragraph 66 of the Memorial, that this principle
does not take into account what might be called the "quality" of the coasts
the points of which are taken as a basis for the construction of the equidis-
tance line. Theequidistance method, it sayson page 63,supra,doesnot takeinto
account "... whether .. .uninhabited promontories, harbourless islands, or
densely inhabited sketches of coasts with plenty af harbours are involved".
And it then argues (p. 64, supra):
"From the point of view of exploitation and control of such submarine
areas, the decisive factor is not the nearest point on the coast, but the
nearest coastal area or port from which exploitation of the sea-bed and
subsoil can be effected.The distance of an oil, gas or minera1deposit from
the nearest point on the coast is irrelevant for practicai purposes, evenfor
the fayingof a pipe line, if this point on the coast does not offer any pos-
sibilities for setting up a supply base for establishing a drilling station or
for the landing of the extracted product."
This argument is in itseif wholly invalid, since experience shows that, if a
deposit is exploited, the nearest points on the coast, even if theretofore unused
or scarcely inhabited, may be developed into important elements of support
for the exploitation, if only as a relay station ofpipe line. Moreover, it isan
argument which,if it were valid,would applyequally to "median lines" between
opposite States as to which the Federal Republic has little objection.
But, quite apart from that, the argument isirrelevant to the present dispute.
There is no difference in "quality" betweenthe North Sea coast of the Federal
Republic and the North Sea coast of the Kingdom of the Netherlands. Every
single part of both coastlines, relevant for the drawing of the equidistance
line, has in principle the same potentialities for being used for the exploitation
of the seabed and subsoil.356 NORTH SEA CONTINENTAL SHELF
SectionA. TheMeaning ofthePrincipalRuleApplicableinthe Present Case
120. The principal rule of international law applicable in the present case,
as has been pointed out, isthe provision in Article6,paragraph 2, which reads:
"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."
If this provision isinterpreted, as it mube,"in accordancewith the ordinary
meaning to begivento theterms of the treaty in their contextl,it can mean only
one thing :inthe absenceof agreement, thegeneral rule requires the boundary tu
bedetermined byapplication of the principleofequidistance, but this generalrule
willbedisplacedif-and onlyif-it is shown that another boundary line isjusti-
fiedbyspecial circumstances.In other words,the provision rneans that theequi-
distance line isthe boundary unless a case of "special circumstances" within the
meaning of the Convention is both shown to exist and to justify a boundary
other than the equidistance line.
121. In paragraphs 68-73 of the Mernorial, however, the Federal Republic
contends that the "special circumstances" clause is to be "understood not so
much as a limited exception to a generally applicable rule, but more in the
sense of an alternative, ofequal rank to the equidistance method". in support
of this contention it isolatea single statement made in the debate in the Inter-
national Law Commission in 1953which hardly seems to bear the weight put
upon it by the Federal Republic. At the same time, it passes over the clear
evidence in that debate that the Commission adopted the equidistance prin-
ciple as the generoi rule and introduced the "special circumstances" clause by
way of an exception. Quite apart from the fact that the very words "unless"
and "special" stamp the "special circumstances" clausewith the hall-mark of
an exception, several passages in the debate indicate that this clause was en-
visaged as an exception to the equidistance principle (Yeurbook, 1953, Vol. 1,
pp. 126-133).For example, Mr. Sandstrom referred to the special circumstances
cIause as covering "speciafcases wherethe application of the normalrule would
Iead to manifest hardship". Mr. Lauterpacht similarly spoke in terms of pro-
viding for exceptions from the equidistance rule when its application would
lead to "undue hardship". As to the author of the clause, M. Spiropoulos, he
also envisaged his proposa1 as leading to departure from the equidistance rule
only where its application would lead to "manifest unfairness".
122. Furthermore, the Federal Republic passes over cornpletely the Com-
mission's clear and considered staternent of its understanding of the relation
between the "equidistance rule" and the "special circumstances clause" in the
Commentary to its 1953 Report. Almost every line of this Commentary, the
relevant passage of which has already been brought to the Court's attention
(see supra, para. 61) rebuts the contention now put forward by the Federal
Republic as to the "alternative" character and "equal rank" of the "special
circumstances clause". This Commentary, the Court will recall, speaks of
the equidistance principle as the "gerreral rule" and as the "major principle"
subject to "reasonable modifications necessitateil by the special circumstances
of the case". The Federal Republic-perhaps understandably-refers only to
Cf. Art. 27,para. 1, of the InternationalLaw Commission'sdraft articles on
the Law of TreatiesI.L.C. Reports 1966 (A/6309/Rev. l), p.49. COUNTER-MEMORIALOF THE NETHERLANDS 357
the heavilyabbreviatedcommentary attached to Article 72of the Commission's
final draft on the law of the sea as a whole. Yet eventhis abbreviated commen-
tary clearly visualizes the "special circumstances clause" as an exception:
"Provision must be made for deparfures necessi~ated by any exceptional
configuration of the coast as well as by the presence of islands or of navigable
channels" (italics added). True, the cornmentary also observes: "This case
may arisefairly often, so that the mle isfairly elastic" (italics added). But thet
guarded observation can hardly be said to modify the very clear impression of
the equidistance principle in the work of the Commission as the general rule
and "the special circumstances" clause'as an exception to that rule.
123. Nor is any different impression of the relation between the "equidis-
tance principle" and "special circumstances" clause given in the work of the
Geneva Conference itself. On the contrary, the statements of a number of
delegations make it clear that the "equidistance principle" wasunderstood by
the Conference to be the general rule to which "special circumstances" would
constitute an exception; e.g., Colombia, ItaIy, Venezuela (Oficial Records,
Vol. VI, p. 94), the Netherlands, United States (ibid.,p. 93, and the United
Kingdom (ibid., p. 96).
124. In short, the ordinary meaning of the words of Article 6 and the rra-
vaux priparatoires alike refute the contention that the "special circumstances
clause" is to be understood "more in the sense of an alternative of equal rank
to the equidistance method". Moreover, if it were so interpreted, the eEect
would beIargelyto denude it of legalcontent and destroy its value as a criterion
for resolving disputes conceming continental sheif boundaries.
125. The Federal Republic further seeks in these paragraphs to undermine
the legal force of the "equidistance principle" by so infiating the scope of the
"special circumstances" exception as almost to make the "equidistance prin-
ciple" the exception rather than the rule. Thus, in paragraph 70 it contends
(pp. 68-69,supra):
" 'Special circurnstonces'are always present should the situation display
not inconsiderable divergencies from the normal case. The normal case,
in which the application of the equidistance method leads to a just and
equitable apportionment, is a more or less straight coastline, so that
the areas of the shelf apportioned through the equidistance boundary
more or less correspond to the shorelines (façades) of the adjacent
States. Should this not be the case, and should therefore no equitable
and appropriate soIution result, the clause of the 'special circumstances'
applies."(Ttalicsadded.)
In the passage the Federal Republic, in effect,equates the principleofequidis-
tance to the principle of a Iine drawn perpendicular to the coast; for where the
coastline is "more or less straight", the equidistance ruIe necessarily gives a
boundary perpendicular to the coast. But the pnnciple of a line perpendicular
to the coast was considered by the Cornmittee of Experts in 1953 and delib-
erately rejected in favour of the principle of equidistance (Counter-Me-
morial, Annex 7). The Federal Republic's contention is thus in complete
contradiction with the legislative history of Article 6,as it is with the Com-
mission's whole concept of the equidistance principle as the "general rule"
and "major principle".
126. In any event, it is not very clear to what conclusion this contention is
supposed to lead. In the area where the land-boundary between the Nether-
lands and the Federal Republic meets the sea the coastline is "more or Iess358 NORTH SEA CONINENTAL SHELF
straight", sothat even on the Federal Republic'sviewof the matter the equidis-
tance line would seem to be perfectly appropriate for this coast. So much so
that, in its agreement of 1 December 1964with the Netherlands the Federal
Republic did, in fact, adopt the equidistance line for the delirnitation of the
continental shelf boundary near the coast. Moreover, in the area also where
the land-boundary between Denmark and the Federal Republic meets the
sea, the coast-line is similarly "more or less straight"; and similarly in its
agreement of 9 June 1965 with Denmark the Federal Republic did, in fact,
adopt the equidistance line for the delimitation of the continental shelf bound-
ary. How and upon what principle, it may be asked, does an equidistance
boundary, perfectly appropriate near the coast, cease to be so further out to
sea when the coast-line is "more or less straight" and no geographical factor
other than that coastline influencesthe course of the equidistance line?
Section B. The North Sea not a b6SpecialCircumstance"or <'Special Case''
127. At the very heart of the case presented by the Federal Republic in
the Memorial isthe thesis that theNorth Seaisin itseIfa "special circurnstance"
or "special case" such that it cannot be dealt with "by the application of
methods developed for drawing maritime boundaries in normal geographical
situations" (p. 39, supra, of the Memorial). This thesis is introduced in Part 1
(para. 8) in a comparatively modest form:
"Yet it is necessary to point out already at this stage that the North
Sea representsa special casein that, on account of its relative shallowness,
its submarine areas constitute a single continental shelf which must be
divided up among the surrounding States in its entirety. In this respect,
the North Sea is different from other cases of delimitation of continental
shelf areas where the continental shelf constitutes but a narrow belt off
the coast,"
In Part II, however, the thesis assumes a much Iarger form. Thus, in para-
graph 41 (p.39, supra) the Federal Republic States:
"A very specialsituation arises when-as in the case of the North Sea-
a continental shelf which is surrounded by severa!littoral States has to be
dividedamong these States. Here a probIem suigeneris arises which cannot
be solved satisfactorily by the application of methods developed for
drawing maritime boundaries in normal geographical situations." (Italics
in the Memorial.)
And later, in paragtaph 72, the Federal Republic boldIy asserts the claim that
continental shelf areas like that in the North Sea constitute "special circum-
stances" within the meaning of Article 6 of-the Convention (p. 71,supra):
"Another typical category of special coastal configuration under the
heading of 'special circumstances'are gulfs, bays and shallow seas sur-
rounded by land. The fact that these geographical situations cal1 for
special solutions, in order to arrive at an equitable apportionment of the
joint sea-bed and subsoil of such waters, has been recognized in the
literature on the subject at an early date." (Italics in the Memorial.)
128. Characteristically, the only authority for itsesis cited by the Federal
Republic in either paragraph 41 or paragraph 72 of the Memorial is three
passages frorn writers published at an early stage in the developrnent of the
doctrine of the continental shelf before the "equidistance principIe-special
circumstances rule" had seen the light of day in the Commission, The reason, COUNTER-MEMORIALOF THE NETHERLANDS 359
no doubt, is that no support can be found in the report of the Committee of
Experts, the work of the Commission or the records of the Geneva Conference
for the view that shallow seas, as such, constitute a "special circumstance" or
a "special case". These three bodies, as has already been said in paragraph 114
above, were perfectlywellaware of the existenceof shallow seaslike the Persian
Gulf, Baltic and North Sea. Tndeed,one of the points singled out for mention
in the Commission'sReport in 1953was that shaHowseas like the Persian Gulf
should be considered as falling within the concept of the continental shelf,
If those bodies had considered shallow seas to constitute a special caseoutside
the "application of methods developed for drawing maritime boundaries in
normal geographical situations", they would certainly have so provided.
Equally, it seems highty probable that the views of the three writers in
question have evolved somewhat since 1953under the influence of the work
of the Commission and the Geneva Conference. This we know for a fact in
the case of Richard Young, to whose article in the American Journal of Inter-
national Law for 1951 the Federal Republic gives particular prominence in
paragraphs 41 and 72. A recent article published by this writer in the 1965
American Journal of International Law and entitled "Off-shore Clairns and
Problems in the North Sea" goes in a quite opposite direction to the Federal
Republic. After mentioning that there now appears to be a consensus between
the North Sea States regarding the territorial sea and fisheries, the article
proceeds :
"There appears to be a sirnilar consensus in principle with respect to
the continental shelf: none of the fiveNorth Sea states having potentially
large interests in submarine resources has failed to recognize the exclusive
appurtenance of suchresources to the coastal state. Nor does it seem likely
that any of them will challenge seriously the equity in general of dividing
such resources by equidistant boundary lines in the absence of special
agreement otherwise,although West Germany in particular may seeksome
readjustment through such agreements. Even Norway, with its reluctance
to accept the Shelf Convention, seems prepared to accept these principles
as a guide.
This consensus should provide a sound foundation for the working out
in practice of various particular problems conceming the delimitation and
control of offshore areas. Theseproblems may be said to be of two general
kinds: first, those relating directly to the exploitation of submarine re-
sources in the North Sea, including the delirnitation of the respective
national areas and the efficient development of resources found; and
second, problems arising from conflicts among different uses of the same
sea areas. The first group are chiefly technical in nature and, under the
circumstances existing in the North Sea, should not present great diffi-
culties. Thus the construction of median lines should not involve any
issues of principle: the general acceptance of similar rules for baselines
provides a substantially uniform lineof departure, and the general absence
of important offshore islands beyond the coastal fringe eliminates one
potential source of controversy. The region is perhags as simple a sitriution
interrns of fechnical problems of delimitation as can be foundin ony area
whereso many diferent states are involved."
There certainly seems to be no trace here of the idea that the North Sea, as
such, is a "special case" or "special circumstance" sirnply by reason of its
being a shallow sea on which a nurnber of States have a frontage.
129. The Federal Republic, it is true, also devotes a wholeChapter (Chap. III360 NORTH SEA CONTINENTAL SHELF
of Part II) to what it terms "The Special Case of the North Sea". But in that
Chapter the Federal Republic sets out to construct a more general case to
justify the substitutioof a "sector" for an equidistance boundary; and it will
therefore be more convenient to deal with those argumentsseparately in the next
Chapter of this Part. Here it sufficesto point out that the Federal Republic's
generalthesis that, by reason of its beiagshallow sea on which a number of
States have a frontage,the North Sea is, as such,a "special circurnstance", is
without any foundation whatever. COUNTER-MEMORIALOF THE NETHERLANDS
CHAPTER 5
THE SPECIAL CIRCUMSTANCES EXCEPTION AND THE
FEDERAL REPUBLIC'S SECTORAL CLAIM
SectionA. The Absence of any "Special Circumstances"
130. If the Govemment of the Netherlands is correct in its submission that
the principIes and rules of international law applicable as between the Parties
are those contained in Article 6, paragraph2,of the Continental ShelfConven-
tion, it follows that in order to arrive at a delimitation other than that which
resultsfrom the application of the equidistance principle, the Federal Republic
must invoke the exception of "special circumstances justifying another bound-
ary Ijne". In the Memorial, however, it proceeds in a quite differentmanner.
131. The tactics adopted by the Federal Republic, as pointed out in the
previous Chapters of this Part, are to try to undermine the value of the equi-
distance principle as a general rule in order to open the way for its requefor
an "equitable apportionment" not under the principles ofthe Geneva Conven-
tion but on a thinly disguised basiç of ex aequetbono. In character with these
tactics, neither the Federal Republic's "Conclusions" regarding the North Sea
continental shelf on page 89,supra,of the Memorial nor its Enal "Submissions"
on page 91,supra,make anymention ofthe exception of "special circurnstances"
provided for in Article 6 of the Continental ShelfConvention. Nor does the
Federal Republic anywhere in the Memorial expresslyinvoke the exception of
special circumstances as one of the "principles or rules of international law" ap-
plicable as between the Parties under the terms of Article 1of the Compromis.
132. The reason whythe Federal Republic shows itselfso averse to admitting
the authority of the equidistance principle as the general ruIe and so shy of
invoking the exception of special circumstances is, no doubt, that it does not
think that its owncase canbebroughtwithinthe scopeof the exceptionof special
circunis~ancesenvisagedinArticle 6 of the ContinentalShelf Convention.Other-
wise, itis dificult to see why the Federal Republic should have gone to such
lengths in trying to question the now generally accepted authority of the
equidistance principle as the principal rule instead of setting out to persuade
the Court, if it can, that in the case of the delimitation of the North Sea
continental shelf between the Netherlands and the Federal Republic "another
boundary is justified by special circumstances" within the meaning of tlre
Convention.
133. Scattered through the Mernorial, it is true, are to be found references
to the North Sea as a special case (paras. 8 and 75) or a special problem
(para. 77). In one place (para. 72op. 71;supra)the Federal Republic even goes
so far as to speak of "gulfs, bays, and shallow seas surrounded by land" as:
"another typical category of special coastal configuration under the
heading of 'specialcircumstonces'" (italics addedj.
But the thesis that the shallow North Sea is as such a "special circumstance"
within the meaning of the Convention is one which, as already pointed out in
the previous Chapter, is entirely lacking in foundation. Moreover, it would
seem to demand some courage to maintain this thesis in face of the facts that:362 NORTH SEA CONT~NENTAL SHELF
(a) the United Kingdom, Norway, Denmark, the Netherlands and Belgium
have all treated the delimitation of the continental shelfbeneath the North
Sea as a perfectly normal case for the application of the equidistance
principle;
(b) the Federal Republic itself has treated the shallow Baltic Sea as a nor-
mal case for the application of the equidistance principle; and
(c) the Federal Republic never suggested at the Geneva Conference or in
its Continental Shelf Proclamation of 20 January 1964 or in the "Exposé
des Motifs" of the Law givingeffect to the Proclamation or in its nego-
tiations with the Netherlands that, being a shallow sea, the North Sea is
a special case.
134. True, in the second part of paragraph 72 the Federal Republic does
introduce the question of "gulfs, bays, or other major indentations of the
coastline" where "one or even both sides belong to a neighbour State" and this
under the general heading "The Special Circumstances in Article 6 of the
Continental Shelf Convention". It maintains that this case "corresponds to
the problem of islands which lie before the coast but belong to another State"
(p. 72,supra); and observes that in both cases "the drawing of a boundary line
in appIication of theequidistancemethod must, by geometrical necessity,cut off
the State from the sea", It goes on to illustrate the case of "gulfs, bays or
other major indentations" by three small diagrams (figs. 16, 17 and 18),
the last of which purports to be a representation of the configuration of the
Netherlands-German-Danish coastline "simplified to the base-line of the terri-
torial sea". Then it baldly asserts:
"It is obvious that a division of the submarine areas between the three
States made on these lines cannot be considered as an equitable result.
Geographical situations of such a kind, affecting the course of the equi-
distance line to such an extent, represent a special configuration of the
coast which excludes the application of the equidistance method."
The Federal Republic makes no real attempt, however, to examine the actual
configuration of the Netherlands-German-Danish coastline in order to establish
on what geographical grounds this coastline is to be considered "a special
configuration of the coast" amounting to a special circurnstance within the
meaning of the Continental Shelf Convention. On the contrary, after only a
most general referenceto "gulfs, bays or other major indentations of the coast-
line" it proclaims that equidistance lines drawn from the Netherlands-German
and Danish-German boundaries give an inequitable result for the Federal
Republic and forthat veason the Court is here confronted with a "special
configuration of the coast". This, in the viewof the Netherlands Government,
puts the cart before the horse.
135. The "special circumstances" clause in Article 6, paragraph 2, of the
Convention, as already pointed out in the previous Chapter of this Part, is
undoubtedly an exception to the generol rule of delimitation by application of
the equidistance principle. Since the Federal Republic has not invoked this
exception in its submissions, the Netherlands does not consider that she is
called upon to dwell at length upon the question whether the configuration of
the Netherlands-German-Danish coastline is such as could be considered a
"special circumstance" within the meaning of Article 6, paragraph 2. Never-
theless, there are certain observations which she cannot refrain from making
in the light of the contentions in paragraph 72 of the Memorial.
136. First, the vignette of the coastline found in figure 18 of the Memorial COUNTER-MEMORIALOF THE NETHERLANDS 363
(p.73,supra)givesa somewhat misleadingimpression ofthe bend in the German
coastline at the centre of the diagram. The Federal Republic does not state
whether it regards this bend as an example of a "gulf" or of a "bay" or of a
"major indentation". But aglance at even a small-scalechart, or indeed at the
small map enclosed with this Counter-Memorial (Annex 17), immediately
shows that this bend in the coastline is not a "bay"or a "major indentation"
but rather a change in the direction of the coast. The angle of this change of
direction is approximately 100 degrees and, if the intervening area of sea may
properly be referred to as a "gulf", it is a wide gulf with open shores, such as
exists in many parts of the world.
137. Secondly, on both sides of the wide gulf the shores arenot merely open
but "more or less straight" with only the most normal small protrusions in the
coastline.
138. Thirdly, fromthe angleof the bend the coastline of the Federal Republic
runs "more or less straight" for a distance of no less than 135 kilometres to
the Westbefore it reaches the Netherlands frontier; and "more or lessstraight"
for a distance of no less than 120kilometres to the north before it reaches the
Danish frontier.
139. Fourthly, no offshore island-other than one forming a normal part
of the baseline of the coast-affects in any material way the geographical
situation with reference to the delimitation of the equidistance lines. (The
influence, if any, of Heligoland on the equidistance lines is altogether insig-
nificant. Seesupra, para. 9, sub c.)
140. In short, the geographical configuration with which the Court is
confronted in the present case js quite unremarkable and could hardly be less
"exceptional".
141. Again, the Netherlands Government must express its strong dissent
from the proposition in paragraph 72 of the Mernorial that the geographical
situation in the present case "corresponds to the problem of islands which lie
before thecoast, but belong to another State". Neither the Netherlands Govern-
ment nor the Court is called upon in the present case to express any opinion as
to what should be the solution of that particular problem under Article 6 of
the Convention. The Netherlands Government contents itself with rernarking
that the Federal Republic's proposition is demonstrably untrue as a matter of
pure facts; and that it is also untrue even from the point of view of the bound-
aries and areas of continental shelf which result from applying the equi-
distance principle.
142. The standpoint of the Netherlands is that she is entitled under inter-
national law to consider the ljne of equidistance as constituting the boundary
between the continental shelves of the Kingdom and the Federal Republic
unless and urttil iis established fhatanother boundary line isjcistijeby special
circlanrstari.ceswifhithe meaning of rhe Convention. The Netherlands, as ex-
plained in the previous Chapter, founds her position, firstly,upon the provisions
of Articles I and 2 of the Convention under which a coastal State is in principle
entitled to the area of the continental shelf which isaàjacent to its coast; and
secondly upon the principles and rules expressedin Article 6 of the Convention
under which the equidistance line forms the boundary unlessanother boundary-
line is justified by special circumstances. In otber words, the Netherlands
maintains that the Federal Republic is bound to respect the equidistance line
as their mutual boundary on the continental shelf unless and until the Federal
Republic establishes both that:364 NORTH SEA CONTINENTAL SHELF
(a) there exists a "speciaI circumstance" within the meaning of Article 6 of
the Convention; and
(b) this "special circumstance" justifiesanother boundary line within the
meaning of that Article.
In the view of the Netherlands Government, the Mernorial entirely faits to
make good either of these points.
143. If the travauxpréparatoiresof the Geneva Conventions and the actual
terms of Article 12 of the Territorial Sea Convention indicate that some not
purely geographical circumstances, such as a historic title, rnay constitute a
"special circumstance", it is only geographical configuration with which the
Court is concerned in the present case. At any rate, the Mernorial does not
appear to envisage that in the present case any other form of special circum-
stance comes into account. True, in attempting to depreciafe the equidistance
principle and minimizethe scopeof itsapplication the Federal Republic refersin
paragraph 70 on page 69, supra, to "special situations of a technical nature-
such asnavigable channels, cabies, safety or defencerequirements, protection of
frsheries (6sh banks), indivisible deposits of minera1 ail or natural gas-";
and in connection with thern cites selected passagesfrom various writers. But,
quite apart from the fact that certain of these rnatters are the subject of specific
safeguards in the Convention (cf. Arts. 3, 4 and 5), none of these so-called
"special situations" has been cIaimedbythe Federal Republic inits subrnissions
as constituting a "special circumstance" for the purpose of the application of
Article 6 of the Convention. Nor has any of the other North Sea States found
any of these matters to constitute an obstacle to delimiting their boundaries
strictly by application of the principle of equidistance. In the case of "indivisible
deposits of minera1 oil or natural gas", for example, the Netherlands, the
United Kingdorn,Norway and Denmark havedelimitedtheir rnutual boundaries
strictly on the basis of the equidistance principle, merely providing for con-
sultation-and, in the case of the Agreement between the Netherlands and
the United Kingdom mentioned in paragraph 18 above, for arbitration-in
regard to the exploitation of resources bordering the boundary line. Accord-
ingly, the Federal Republic's reference to these so-called "special situations"
would seemto beentirelywithout reievancefor the application of the provisions
of Article 6, paragraph 2, of the Convention in the present case.
144. Furthemore, the Federal Republic's nunierous references to "island"
situations, which it illustrates with a variety of figures(Nos. 4-7 and 11-15),are
equally irrelevant for the purposes of the present case. Islands situated outside
the territorial sea playno material role in the delimitation of the continental
shelf as between the Federal Republic and the Netherlands. The only island
outside theterritorial seaisHeligolandand, as stated in paragraph 139,the influ-
enceof thisisland, if any, on the equidistance line isaltogether insignificant.Nor
isthere any disagreement betweenthe Parties regarding the islands offthe Coast
which may betaken into account under international law as base-points for the
delimitation of their respective territorial seas, contiguous zones and con-
tinental shelves.
145. Indeed, so far from there having been any question raised in this part of
the North Searegarding islandsas"a specialcircumstance", evena low-tideeleva-
tionwhichdoes exerciseamaterial influenceontheequidistancefinehas been used
by the Federal Republicfor delimitingits continental shelfwithoutany objection
from the Netherlands (see Danish Counter-Mernorial, fig. 2, p. 21 1, s~rpra).~ '
Seepocket insideback cover. COUNTER-MEMORIAL OF THE NETHERLANDS 365
This low-tide elevation, the "Hohe Riff", lies near the Geman island of
Borkum but offthe mainland of the Netherlands coast. Its presencethere causes,
in the phrase used in paragraph 71 of the Mernorial, a "dislocation in the
apportionment" of the continental shelf; and this dislocation operateinfavour
of the Federal Republic.
Figure 3 shows the actualequidistance line as it now runs, in accordance
with the Treaty, up to the 54th degree of latitude, taking into account the
presence of this low-tide elevation. To the east thereof it shows the boundary
line as this line would have been drawn if the low-tide elevation had not been
taken into account. If both lines are prolonged beyond the 54th degree of
latitude, the difference as regards the continental shelf area amounts to sorne
670 square kilometres.
The Federal Government, it would seem, never for a moment imagined that
the low-tide elevation could be regarded as a "special circumstance" for the
purposes of Article 6.
146, Since no islands outside territorial waters play any material role in the
delimitation of the boundary of thecontinental shelfas betweenthe Netherlands
and the Federal Republic, oizly the geographical configurationof the baselines
ofthe mainlairdcoast calls for consideration as a possible source ofa "special
circumstance". But it has already been demonstrated in paragraphs 136-140
above that there is absolutely no exceptional geographical configuration inthis
part of the North Sea coast which could possibly beregarded as constituting "a
special circumstance" withinthe meaning of Article 6.
147. Even if the bend in the German coast could be regarded as a "special
circumstance", it still would not bea "special circumstance" justgying another
boundary line. The Dutch-German stretch of coast is, as previouslyemphasized,
quite ordinary, and "more or less straight"; and the continental shelf'which
accrues to the Netherlands under the equidistance principle isperfectlynormal,
being the area which naturally appertains to the Dutch coast. This can readily
be seen from the small map of the North Sea reproduced in figure 4 on
page 366.This rnap picks out Netherlands territory by showing it shaded and
depicts the area of continental shelf accruing to it under the equidistance
principle as compared with the areas appurtenant to other stretches of the
North Sea coastline. The Netherlands "share" of the North Sea shelf is in no
way abnormal in relation to the Netherlands coastline and its size cannot be
said to be unduly enlarged by the protrusion of any promontary in the Nether-
lands coast. TheNetlrerlunds,inshort, gains absolutefynothingat the expense of
theFederal Republicfrom any unusualdisposition or conrfigirralof Netherlaitds
territory.
148. It followsthat what the Federal Republic isreallyaskingfrom the Court
in the present case is that it should lay down a principle whichwouldrequire the
Netherlands, simply on considerations of ex aequo et bono, to transfer to the
Federal Republic part of the continental shelf which is adjacent and naturally
appertains to the Kingdom. Indeed, it may be permissible to wonder whether
in 1964it wasconsiderations of exaequoet bono or arecentlyacquired knowledge
that this part of the continental shelf might hold particularly good prospects
as regards oil and gas deposits that led the Federal Republic to challenge the
application ofthe equidistance line. Bethat as it may, there does not appear to
be any basis for suggesting that the International Law Commission or the
Geneva Conference ever contemplated that such a redistribution of areas of
continental shelf could legitimately be demanded under the provisions of
Article 6.366 NORTH SEA CONTINENTAL SHELF
Figure4 COUNTER-MEMORIAL OF THE NETHERLANDS 367
149. The Federal Republic thus seems to overlook the fact that her neigh-
bour, the Netherlands, also has a claim to a share of the continental shelf under
international law which is identical to that of the Federal Republic in its legal
basis and validity.At any rate, it has provided no reason in the Memorial why
this neighbour State should be called upon to renounce part of its normal and
natural shelf area merely becausethe Federal Repubkic'sown coast provides a
less satisfying basis for deiimiting its continental shelf. There is, in the view of
the Netherlands Government, no basis whatever in the Geneva Convention for
transferring legitimattly claimed continental shelf areas from one State to
another merely because the latter State is dissatisfied with its part of the con-
tinental shelf for reasons stemmingsxclusivelyfrom its owa coast.
150. In paragraph 72of the Memorial (pp.71-74,supra), however,the Federal
Republic seeksto draw into the case between the Netherlands and the Federal
Republic the equidistance boundary between Denmark and the Federal
Republic. Yet in the travatlx préparatoires of the Convention there is not the
slightest indication that it was ever envisaged that a State might be able to
combine a boundary question vis-à-vis one adjacent State with a boundary
question vis-&-visanother adjacent State and then maintain that "special
circumstances justifying another boundary line" exist which manifestly do not
exist in relation to either of these adjacent States considered by itself, Further-
more, paragraph 2 of Article 6 of the Convention, in contrast with the wording
"two or more States" in paragraph 1 speaks only of cases "where the same
continental shelf is adjacent to the territories of tioo adjacent States"; and thus
clearly contemplates only questions of delimitation arising between two
States alone. Accordingly, in seeking to combine two separate boundary
questions between two different adjacent States, the Federal Republic passes
completely outside the limitsof the "special circumstances" exceptionrecognized
in Article 6, paragraph 2.
151. The Federal Republic's whole discussionof the "special circumstances"
exception seems to assume that this clause opens up a general liberty to depart
from the rule of equidistance whenever a State finds that the application of the
general rule does not give a result which satisfies its aspirations. The special
circumstances clause, was however, formulated, and intended to beapplied, as
rule of law. Ttadmitsthe possibility ofa modification ofthe general rule on the
basis of geographical configuration only in cases where a particular coastline,
by reason of some exceptional feature, gives the State concerned an extent of
continental shelf abnormally large in relation tothe general configurationof ifs
coast. Then a correction is allowed by the clause in favour of an adjacent
State whose continental shelf is correspondingly made abnormally small in
relation to thegeneral configurationof its coast by that same exceprionalfeature.
In short, the modification to the general rule is allowed by the clause only when
it is equitable and just with regard to both States concerned in relation to the
general configuration of their respectivcoasfs.The clause neither contemplates
nor admits a State's being deprived of areas of continental shelf which are
naturally appurtenant to its coast and entirely normal in relation to the generaI
configuration of its coast; for to allow that would be to do inequity and in-
justice to the State so deprived.
Section 8. TheFederalRepublic'sSectoral Claim
152. The second of the "conclusions" formulated by the Federal Republic
in paragraph 96 of the Memorial (p. 89, stipra) asserts:
"The most equitable apportionment of the continental shelf among the368 NORTH SEA CONTINENTAL SHELF
coastal States would be a sectoral divisionbased on the breadth of their
coastalfrontage facintg he North Sea." (Italics added.)
This "conclusion" the Federal Republic seeks to support by an elaborate
argument in paragraphs 75-92 based upon: (a) the alleged specialcharacter of
the North Sea as a shallow sea surrounded by coastal States; (6) an interpreta-
tion ofthe principle ofequalitycarefuIlytailored to meetthe needs of the Federal
Republic's claim; and (c) a supposed analogy with the Polar Sector theory.
153. The Netherlands Government has already amply demonstrated in the
previous Chapter (Section B) that neither the geographical character of the
North Sea nor the travaux préparatoiresof the Continental Shelf Convention
nor the practice of States provides any basis for treating the continental shelf
beneath the North Sea as a "special case" or a "special circurnstance" for the
purposes of its delimitation under the principles contained in Article 6 of the
Convention.
154. The principle of the equality of States is, no doubt, a principle of high
importance. But it needs no argument to demonstrate that the equality of
States does not mean that every State must have an "equal" area of land, or of
territorial sea, or of continental shelf; of that the facts of political geography
are sufficient proof. The meaning and content of the principle of equality
clearly depend on the context in which it falis to be applied. Tn the present
context it can only mean that each coastal State is entitled to the even-handed
applicatioir of the principies and rules of maritime internarionallaw governing
the delimitation of a coastal State's rights in the sea areas adjacent to its cousis.
These principles and rulesof maritime international law prescribe that :
(a) the sea areas, whether territorial sea, contiguous zone or continental
shelf, over which the coastalState may claim rights arethe areas of sea or
continental shelfwhich are adjacent to, and thereby appertain, to itscoast;
(b) for the purpose of determining these areas the "coast" of a State is con-
stituted by the baselines of the shore specifiedin the Territorial Sea Con-
vention; and
(c)in consequence, the boundaries of a coastal State's territorial sea, con-
tiguous zone or continental shelf are to be delimited by reference to the
baselines specifiedin the Territorial Sea Convention.
The Netherlands, like every other State, is entitled to have her rights deter-
rnined by the application of these principles and rules. The Federal Republic,
however, while invoking the principle of equality of States, urges upon the
Court the adoption of a "sectoral" divisionof the North Sea continental shelf
which, as will be shown, denies to the Netherlands her fundamental right to
have her continental shelf boundaries delimitedin accordance with the above-
rnentioned principles and rules of maritime international law applicable to
other States. It is, therefore, evident that the Federal Republic's "sectoral"
claim has nothing whatever to do with the principle of equality of States.
155. The Federai Republic iltustrates its "sectoral" theory of the division of
the North Seacontinental sheIfin figure21 (p.85,supra of the Memorial); and it
can be seenat oncefrom this figurethat the boundaries proposed by the Federal
Republic are not delimited by reference to the baselines of the coast but by
reference to the arcs of a circle artificiallyconstructed by the Federal Republic
in the southern part of the North Sea.Figure21,inother words,makesitcrystal
clear that the theory urged upon the Court by the Federal Republic denies to
the Netherlands the delimitation of her continental shelf by reference to the
baselines of her coast in accordance with the established rules of international
law. Yet even in that same figure the continental shelf boundaries of Norway COUNTER-MEMORIAL OF THE NETHERLANDS 369
and the United Kingdom are delimited by reference to the baselines of their
coasts, as indeed also is the boundary of the Netherlands vis-à-vis the United
Kingdom. It may, therefore, be asked upon what principle the equal application
of these rules of international law could be denied where the boundary of the
Netherlands vis-A-visthe Federal RepubIic is concerned.
156. In addition, the Federal Republic's sectoral theory bears every mark of
opportunism, artificiality and arbitrariness. At the negotiating stage, it is true,
the Federal Republic did maintain that its continental shelf in the North Sea,
measured in relation to the Iength of its coast, should be comparable with that
of its neighbours; and it also made a vague reference to a sector without,
explaining what this might irnply. But at that time it clearly assumed that in
this connection the length of the acrualGerman coast in the North Sea was the
relevant one. That position it has now changed, substituting for its actual coast
an artificial line drawna considerable distance to seawards even of the most
liberally estimated baseline of the coast. And this artificial line the Federal
Republic now puts forward as corresponding to its "façade" upon the North
Sea-a term and a concept alike wholly unknown to maritime international
law. Again, at the negotiating stage the Federal Republic, in seekina basis for
justifying itsclaim,argued that paragraph 1of Article6,dealingwith "opposite"
States, because it precedes paragraph 2, dealing with "adjacent" States, must
be given priority so as to entitle the Federal Republic as of right to a con-
tinental shelf boundary with the United Kingdom. This argument, in itself
altogether untenable and also having certain implications for the Federal
Republic with respect to the Netherlands-Danish boundary or even a Nether-
lands-Nonvegian boundary, has been completely abandoned in the Memorial.
Instead, theFederal RepubIicnow advancesa somewhatnebulous and dogmatic
claim to be entitled to reach what it calls the middle of the North Sea.
157. Whatever may be the legal value of the sector theory in Polar areas-a
matter quite outside the scope of the present case-it is clear that no basis for
the application of the sector theory in the delimitation of the continental shelf
can be found in State practice, the debates in the International Law Commission
or in the records of the Geneva Conference. A memorandum prepared by the
United Nations Secretariat for the International Law Commission in 1950
prior to its discussion of the continental shelfdid, adrnittedly, conamention
of the sector principle (Yearbook ofthe InternationalLaw Commission,1950,
Vol. II, pp. 106-108).But this only makes it al1the more significant that no
member of the Commission, no government in its comments on the Com-
mission's proposals, and no State at the Geneva Conference ever adverted to
the sector principle in discussing the rules of international law which should
govem the continental shelf. No doubt, it is precisely because the Federal
Republic is aware of the total lack of any legal basis for its sectoral claim that
in the Memorial it does not dare to put the sector theory before the Court as a
"principle of law" but only as a method of division which would result in
"the rnost equitable apportionment of the continental shelf". The Court,
however, rnayconclude that the absolute lack ofany legalauthority in maritime
law for the method of division advocated by the Federal Republic only serves
to confirm that its alleged principle of the "just and equitable share" is indeed
nothing more than a thinly disguised demand for a delimitation of the con-
tinental shelf ex aequoet bono.
158. The Federal Republic's sectoral divisionof theNorth Sea is also highly
artificial and arbitrary. In order to give its argument some air of plausibility
the Federal Republic recognizes that it must have a circular (or elIiptical) 370 NOR~H SEA CONTINENTAL SHELF
area of shalIow sea and, by a lucky accident, it believesthat it has found such
an area in the North Sea which it illustrates in figure of the Memorial. But
this figure shows that the Federal Republic's circular area is obtained only
by a highly selective and arbitrary process. The "circle" does not cover the
whole of the North Sea,nor even a clearlydefined or separate part of that sea;
it covers only an arbitrarily chosen arein part of the North Sea. If regarded
as depicting the southern areaof the North Seashelf,the circletakes no account
of the configurations of the French, Belgian, south Netherlands or south
English coasts; nor doesthe arc eventouch the Federal Republic's owncoast or
the Norwegian coast. In short, it is a circIe constructed purely ad hocfor the
purposes of the argument and evenwith the best ofgood fortune theFederal Re-
publicisunable tomake the arc of its circle touch some of the relevant coasts.
159. Again, as the Court willseefrom figure21,the "sectors" ofthe Federal
Republic's circleare not drawn with reference to the extremities of the coasts
of the States concerned, but with referenceto the equidistance lines between
their territories.
Denmark's sector is depicted as starting at one end from a point on the me-
dian line agreed between Denmark and Norway in the Treaty of 8 Decem-
ber 1965 and at the other end from an arbitrary point'on the equidistance
boundary near the coast established between Denmark and the Federal Re-
public by the Treaty of 9 June 1965. The FederalRepublic's sector starts at
one end from that same point on the Danish-German equidistance boundary
and at the other end from a similar point on the German-Netherlands equidis-
tance boundary near the shore established by the Treaty of 1 December 1964.
The Netherlandssector starts at one end from the last-mentioned point on the
Geman-Netherlands equidistance boundary and at the other end from another
point in mid-sea on the median line agreed between the Netherlands and the
United Kingdom by the Treaty of 6 October 1965. The Federal Republic,
presumably in order not to draw too rnuch attention to the geographicaily
meaningless character of its circle, does not complete the northern arc. But
the impression is left in figure 21 that comparable sectors attach to the United
Kingdom between its median line boundaries with the Netherlands and Norway
and to Norway between its median line boundaries with the United Kingdom
and Denmark. It is, to say the least, curious that the hostility to the equidis-
tance principle so frequently evinced by the Federal Republic in the Memorial
should have melted away so easily when this principle was found to be very
convenient for the construction of its sector claiin.
160. The principal way in which the Federal Republic seeks to justify its
sectoral claim to a larger area of continental shelf is the proposition in para-
graph 78 of the Memorial that in the case of the North Sea the share of each
coastal State should be rneasured by the length of its North Seacoastline. This
proposition isexpounded in that paragraph as follows(p. 77,supra):
"The degree of the geographic connection between the coast and the
subrnarine areas lying in front of it does not manifest itself by the length
of the coastline measured with al1its articulations, butby the breadth of
contact of the coast with the sea-the country's coastal frontage. The
degree of connection of the German coast with the submarine areas of
the North Sea would accordingly be measured by the linear distance
between Borkum and Sylt, two German islands irnmediately adjacent
to both end points of the German coast between the Danish and Nether-
lands continental territories. If the breadth of the German coast is evalu-
ated in this fashion, and the breadth of the Danish and Netherlands COUNTER-MEMORIALOF THE NETHERLANDS 371
coasts were to be ascertained in like fashion, then the shares of these
countries would stand in the ratio 6 : 9 : 9 respectively."
From this the Federal Republic concludes:
(1) the areas which accrue to the three States under the equidistance principle,
and which it gives as Denmark 61,500 square kms., the Netherlands
61,800 square krns. and the Federal Republic 23,600 square kms., are
disproportionate to the ratio of their coastal frontages and, in conse-
quence, inequitable;
(2) the areas which would accrue to the three States under the Federal Re-
public's sectoral division, and which it gives as the Federal Republic
36,700 square kms., Denrnark 53,900 square kms. and the Netherlands
56,300 square kms., do correspond roughly to the ratio of 6 :9 : 9 and,
in consequence, constitute a "just and equitabIe share".
161. The first and immediate objection to the Federal Republic's coastal
frontage-façade line-concept is that there is not the slightest basis for it in
State practice, the work of the International Law Commissionor in the records
of the Geneva Conference. in support of it the Federal Republic, it is true,
adduces statements by two writers; but these statements-at best only sug-
gestions-were made in papers written before the International Law Commis-
sion had even begun its study of the continental shelf. Nor is it clear that even
these writers had in mind "coastal frontage" in the form of the "façade" line
propounded by the Federal Republic. Be that as it rnay, the façade concept
was never suggested or adverted to in the International Law Commission or
by any Government in its comments upon the Commission's proposals or by
any State at the Geneva Conference; nor does it appear to have received any
mention in State practice other than in the argument of the Federal Republic
in the present dispute. The reason is obvious enough. The legal concept and
definition of a coast for the purposes of international law is well established:
itis the baseline of the coast, i.e., the low-water line along the open coast or
straight lines where these are admitted in the case of island fringes, bays, etc.
Moreover, international law places specificlimitsupon the indentations which
may beregarded as baysfor this purpose and upon the length of the lineswhich
may be drawn across bays. The Federal Republic's concept of a "façade"
line and the particuiar fraçade line betweenBorkum and Syltwhichit daims for
itscoast violate both the established Iegal conceptof the coast and the specific
rules applicable thereto.Tn short, the Federal Republic invokes a novel con-
cept of the coast completely outside anything contemplated either by the Inter-
national Law Commission or by States at the Geneva Conference.
162. The "coastal frontage9'-"façade line" concept is, in fact, nothing
but an artificial construction devised for the purpose of enabling the Federal
Republic to escape alike from the consequences of its own geography and frorn
the normal application of the retevant ruIes of maritime international law.
Furthermore, as already pointed out, even the "façade lineV-the Borkum-
Sylt line-is not enough for the Federal Republic's purpose; for it is im-
possible to make the arc of the Federal Republic'smagic circkecorne anywhere
near the Borkum-Sylt line.In consequence, in order to give its sector even the
semblance of plausibility, the Federal Republic has to construct it not with
reference to the Borkum-Sylt line but to a purely fictional line joining selected
points on its two near-shore continental shelfboundaries established in treaties
respectivelywith the Netherlands and Denmark. Thus, the base of the Federal
Republic's sector is still further divorced from the established concept of a
coast in international law.372 NOR^ SEA CONTINENTALSHELF
163. The Federal Republic's Memorial (inpara. 84 on p. 83, supra) states:
"lf the maritime area to be divided is roughly circular, sectoral division,
byreason ofitsgeometrical construction,guaranteesnot only an apportion-
ment proportional to the breath of the 'coastal frontage',but also a division
in the middle between the opposite coasts."
Now, obviously, if the maritime area involved were really circular (Le., if
there wereno sea without nor land within the circle)there would be no distinc-
tion between "opposite" and "adjacent" coasts; indeed, the sector lines would
be equidistance lines. Furthermore, in such a theoretical situation, the surface
of the various sectors would be proportional to the length of each coastliwe.
In actual fact, however, the North Sea "surrounded" by parts of the coasts
of Great Britaiii, of Norway, of Denmark and of the Federal Republic, by
the total coast of the Netherlands and Belgium and by part of the coast of
France, is not even "roughly" circuiar. Accordingly the northern part of the
equidistance line, forming the boundary of the continet~talshelf areas apper-
taining to Great Britain and the Netherlands respectively, does riotcoincide
with an imaginary sector line of an imaginary circle, touching points on the
coasts of Great Britain, Denmark and the Netherlandç. Equally, in view of
the same factual circumstance that the North Sea coast of the Federal Republic
is ais0 considerably removedfrom the arc of that imaginary circle, the equidis-
tance line between the coasts of the Netherlands and the Federal Republic
of Germany (and indeed, the equidistance line between the coasts of the
Netherlands and Denmark) does not coincide with the imaginary sector line.
Whether the deviation from the sector line in the first case is only slight and
relatively unimportant, as the Memorial (first three lines on p. 86supra)states,
is a matter of degree; anyway,if these qualifications apply to the first case, they
also apply to the second case, or at least to the diferenc inedeviation in the
first and the second case.
The point is, that, if the coastlines of the States adjacent to a sea are so far
removed from anything resernblingthe arc of a circle, there is no sense whatso-
ever in trying to apply a sectoral division. This goes both for the sector line
as a boundary line and for the socalled "coastal frontage" as determining the
total surface of the continental shelfappertaining to a State. Indeed this "coast-
al frontage" is a purely fictitious simplificationof the actual coastline, whether
this "frontage" is construed as Iinear-as is done in paragraph 78 of the
Memorial (p. 77supra: "... the linear distance betweenBorkum and Sylt ...")
-or as circular, as under the sector theory of proportionality between the sur-
face of the sectors and the length of the corresponding parts of the arc. In
neither way can "the degree of connection of the coast with the submarine
areas" be measured. That the Mernorial applies bothways of measurement
doesnot addto the cogencyofthe "coastal frontage" concept!
164. Another thing which figure 21 shows clearly is that the Federal Repub-
lic has no valid reason for claiming that it is entitled to a continental shelf
reaching to the middle of the North Sea. The Federal Republic'smagiccircle, if
it touches the coasts of Denmark, the NetherIands and the United Kingdom,
falls somewhat short of the Norwegian coast and very far short of that of the
Federal Republic. This indicates that, whiIe some of the other North Sea
States may be States whose coasts actually border upon the central part of
the North Sea, the Federal Republic's coast is situated in an extension of the
North Sea to the south-east, as are also the coasts of Belgium and France in
an extension to the south-west. The result isthatthe Federal Republic's coast,
like those of Belgium and France, is much more distant from the central part COUNTER-MEMORIALOF THE NETHERLANDS 373
of the North Sea. In other words, white the distances from the centre of the
magic circle to the coasts of Denmark, the Netherlands and the United King-
dom are identical, the distance to that centre from any point on the Federal
Republic'scoast is considerably greater. In consequence, it isneither surprising
nor inequitable nor unjust that the Federal Republic's continental shelf should
not reach out to the place which it speaks of as the centre of the North Sea.
165. In addition, both the Federal Republic's addiction to the supposed
principle of the "just and equitable share" and its enthusiasm for a sectoral
division of the continental shelf as an application of that "principle" seem to
be capriciously confined to the coastal States of the south-eastern part of the
North Sea. Belgium and France are both "North Sea States" as definedin the
North SeaConvention of 1882,and both have limited frontages on the southern
part of the North Sea.In sorneways,moreover, their positions areanalogous to
that of the Federal Republic. Yetneither in figure21nor in its exposition of the
sectoral theoryin paragraphs 84-92does the Federal Republic findanyroom for
these States in its "equitable apportionment of the North Sea". This highly
selective application of the alleged principIe of the "just and equitable share"
and of the concept of a "sectoral division" ofthe continental shelf serves,once
more, to show that it is not a deIimitation in accordance with any principte
or rule of international law for which the Mernorial asks but a delimitation
simply ex aequo et bonoin accordance with the aspiratio ofsthe Federal
Republic.
166. In the final analysis, it is an insuperabIe objection to the ~ederal
Republic's alleged principle ofthe "just and equitable share" and to its pro-
posed "sectoral division" ofpart of the North Sea that both that alleged prin-
ciple and that method of division are in total conflict with the established
principles and rules of international Iaw goveming the delimitation of maritime
areas. Thus, they misconceivethe very nature and the operation of these prin-
ciples and rules, which are based upon the doctrine "la terre domine la mer"
and not vice versa. The rules of international law in this sphere take the coast
as their starting point, and not the-in any case imaginary-middle of the sea.
These principles and rules do not have as their object to shareout or distribute
the sea, seabed or subsoil by sector or othenilise. They have as their object
to delimit in space the extent to which the sovereignty of a State over its land
hds continuation in sovereign rights relating to the sea areas adjacent to
its land. Moreover, at the root of these rules is the concept that the sovereign
rights of a State over sea areas are, in principle, limited in space to areas al1
points of which are nearer to its coast than to that of any other State, because
it is these areas which are truly "adjacent" to its land.
167. The Federal Republic's alleged principle and sectoral method of
division depart alike from these fundamental principles of maritime interna-
tional law and from the detailed rules regarding the delimitation of sea bound-
aries in which they have their application. Accordingly, in the view of the
Netherlands Government, neither the altegedprinciple ofthe just and equitable
sharenor its particular application in the Federal Republic's "sectoral" division
possess the characteristics ofa "principle or rule of international law" within
the meaning of Article 1of the Compromis. COUNTER-MEMORIALOF THE NETHERLANDS
PART III. SUBMISSIONS
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 1December1964;
Considering that under the terms of Article 1, paragraph 1, of the Com-
promis the task entrusted to the Couri is not to formulate a basis for the
delimitation of the continental shelf in the NortSea as between the Parties
ex aequo et botiu, but to decide whafprinciples and rules of internationalIaw
are applicable to the delimitation as between the Parties of the areas of the
continental shelf in the North Sea which appertain to each of thern beyond
the partial boundary determined bythe above-mentioned Treaty of 1December
1964;
In viewof the facts and arguments presented in Pa1tand II of this Counter-
Memorial,
May itplease the Court to adjudgeand declare:
1. The delimitation as betweenthe Parties of the said areas of the continental
shelf in the North Seais governed by the pnnciples and rules of international
law which are expressed in Article 6, paragraph 2, of the Geneva Convention
of 1958on the Continental Shelf.
2. The Parties being in disagreement, unIess another boundary is justified
by special circumstances, the boundary between them is to be determined by
application of the principle of equidistance from the nearest points of the
baselinesfrom which the breadth of the territosealofeachState ismeasured.
3, Specialcircumstances whichjustify another boundary linenot having been
established, the boundary between the Parties is to be determined by applica-
tion ofthe principle of equidistance indicated in the preceding submission.
20 February 1968
(Signed) W. RIPHAGEN
Agent fur the Goverment
of the Kingdom of the Netheriands COUNTER-MEMORIALOTHE NETHEUND5 377
PART IV. ANNEXES TO THE COUNTER--MEMOlUAL
SUBMITïED BY THE GOVERNMENTOF
THE KINGDOM OF THE NETHERLANDS
Annex 1
(See Annex1 to the DanishCounter-Mernorialp,. 223, supra]
Anuex2
[See Annex2 to the DanishComter-Mernorial,supra],
Amex 3
fSee Annex3 to the DanishCounter-Mernorialp,. 230, supra]
Annex4
[See Annex4 to the DanishComter-Mernorial,p. 234,supra]
Annex5
[See Annex5 to the DanishCounter-Mernorialp,. 235, supra]
Annex6
[See Annex6 to theDanishCounter-Mernor236,supral
Annex 7
[See Annex12A fo the DanishCounter-Mern,.254, supra] NORTH SEA CONTINENTAL SHELF
Annex 8
TRANSLATIO NF THE NOTE VERBAL EF 21 JUNE 1963 FROM ME ROYAL
NETHERLAND SMBASSY AT BONN TO THE MINSTRY OF FOREIG N WAIRS
OFTHE FEDERAR LEPUBLI CFGERMANY
nr.7099
Note Verbale
The Royal Netherlands Ernbassy has the honour, following the instruction
by its Government, to inform the Ministry of Foreign Affairs of the following:
In connection with the proposed ratification of the Convention on the
Continental Shelf signed at Geneva on 291958,the Royal Netherlands
Government wishes to state that the part of the continental shelf of the North
Sea over which it exercises sovereign rights in conformity Con- the said
vention is delimited to the east by the equidistance line beginning at the point
where the thalweg in the mouth of the Ems reaches the territorial waters.
The Embassy would request the Ministry of Foreign Affairs to bring the
foregoing to the attention of the competent domestic German auasorities
farasmay be necessary.
The Royal Netherlands Embassy avails itself of this opportuntoy to renew
the Ministry of Foreign Affairs the assurance of its highest consideration.
l TheGerman text of the NisreproduceinAnnex 2 ofthe Mernorial. Annex9
Verbalnote
Daa Auswartige Amt beehrt sich,auf die Ver-
balnote Nr. 7099 der KoniglichNiederlandischen
Botschaftvom 21. Juni 1963 Bezugzu nehmen,mit
der dieAuffassung der KoniglichNiederlandischen
Regierung überden Verlaufder 6stlichen Grenze
dee niederl8ndiacheF nestlandsockeld ser Bundesre-
gierung tibermittelt wurde.
In Beantwortung dieser'Verbalnote erlaubt&as
Auswartige Amt sich,der Botschaft mitzuteilen, dan
die Bundesregierund gie Auffassungder Koniglich
Niederlandische negierungüber die Abgrenzung des
Festlandsockelz swischender Bundesrepublik Deutsch-
land und den Niederlanden nich ztu teilenvermag.
Die Bundearegieruni gst der Ansicht,daB.iraBereich
des Nordseeschelfs sowohlhistorische Gründe als
auchweiterebesondereUmstandeeinein mehrfacher
Hinsichtvon der Auffasaungder Koniglich Nieder-
liindische negierung abweichende Grenzzieh rch-g
fertigen.
Das AuswartigeAmt beehrtsicb, der Koniglich
NiederlandischeB notschaftferner mitzuteilen, daS
auchdie Bundesregierund gie Ratifikationde8 Über-
einkommene überden Festlandsockev lorbereitet.
Die Bundearegierungwürdees auBerordentlich
begrüBen, wennmit der niederlandische negierung
Verhandlungenüber den AbschluBeiner deutsch-nie-
n die derlandischeV nereinbarungüber die Grenzziehung
andiache Botschat NORTH SEA CONTINENTALSHELF
-2-
im Bereich des Festlandsockels aufgenommen
werden konnten. Das Auswartige Amt darf die Ko-
niglich Niederlandische Botschaf t bi tte'n, die-
sen Vorschlag der Koniglich Niederlandischen
Regierungzu iibermitteln und deren RückauBerung
herbeizufiihren.
Das Auswartige Amt benutzt diesen AnlaR, .
die Koniglich Niederlandiache Botschaft erneut
.seiner ausgezeichnetenHochachtung zu versichern.
Bonn, den 26, August 1963 COUNTER-MEMORIALOF THE NETHERLANDS
Annex9 A
(Translation)
Ministry of Foreign Affairs
V 1-80/52/3
Note Verbale
The Ministry of Foreign Affairs has the honour to refer toe Royal Nether-
lands Embassy's Note Verbale No. 7099 dated 21 June 1963 informing the
Federal Government of the Netherlands Govemment's views on the position
of the Eastern boundary of the Dutch continental shelf.
In reply the Ministry of Foreign Affairs would inform the Embassy that the
Federal Government doesnot sharethe Royal Netherlands Govement's views
on the delimitation between the Federal Republic of Germany and theNether-
lands. The Federai Republic holds the view that there are historical rea-
sons andother specialcircumstances that justify adoption in thearea of the con-
tinentalshelfunder the North Sea of a delimitation line, the position of which
differsin more than one respect from that claimed by the Royal Netherlands
Government.
The Ministry of Foreign Affairs has the honour also to inform the Nether-
lands Embassy that the Federal Government, too, is preparing for the ratifica-
tion ofthe Convention on the continental shelf.
The Federal Govemment would very much appreciate it if arrangements
could be made for negotiating an agreement between the Federal Republic
and the Netherlands on the position of the boundary-lie in thearea of the
continental shelf. The Ministry of Foreign Affairs would request the Royal
Netherlands Embassy to transmit this proposa1 to the Royal Netherlands
Government and to elicit their views thereon.
The Ministry of Foreign Affairsavails itseofthe opportunity to renewto the
Royal Netherlands Embassy the assurances of its highest consideration.
Bonn, 26 August 1963.
(seal)
To the Royal Netherlands Ernbassy. NORTH SEA CONTINENTALSHELF
Annex 10
[See Annex 10fothe Danish Cowter-Mernoriai, p.244, supra]
Annex 10 A
[See Annex 10 A to the Danish Counter-Mernoria, . 246, supra]
Annex il
[See Annex II to the Danish Counter-Mernorial,p.247, supra]
Annex11 A
[See Annex II A to theDanis hounter-hfernouial,.248, supra] COUNTER-MEMORIALOF THE NETHERLANDS
Annex12
AGREEMEN BTTWEEN THE GOVERNME NTTHE KINGDOM OFTHE NETHER-
LANDS AND THE GOVERNME OFTTHE UNITED KIKGDOM OF GREAT BRITAIN
AND NORTHERIN RELAN DELATlNCTOTHE EXPLOITATI OFSINGLEGEOLOGICAL
STRUCTURE ESTENDINGACROSS THE DIVIDING LZNE ON THE CONTINENTAL
SHELFUNDER THE NORTH SEA
The Government of the Kingdom of the Netherlands and the Government
of the United Kingdom of Great Britain and Northern Ireland;
Having reached agreement on the delimitation of the Continental Shelf
under the North Sea between the two countries;
Desiring to regulate certain maofcommon interest with regard to the
exploitation of single geological structures extending across the dividing Bne;
Have agreed as follo:s
Article 1
If any single geological minera1oit or natural gas structure or field extends
across the dividing line and the part of suchortfield whichis situated
on one side of the dividing lineis exploitable, whollyor in part, from the other
side of the dividing line,the Contracting Parties willseek to reach agreement as
to the manner in which the structure or field shall be most effectivelyexploited
and the manner in which the coand proceeds relating thereto shall be ap-
portioned, after having invitedthe licenseescoifany, to submit agreed
proposaisto this effect.
Article
Where a structure or field referred to in Article 1 of this Agreement is such
that failure to reach agreement between the Contracting Parties would prevent
maximum ultimate recovery of the deposit or lead to unnecessary cornpetitive
drilling, then any question upon which the Contracting Parties are unable
to agreeconcerning the manner in whichthe structure or fieIdshallbeexploited
or concerning the manner in which the costs and proceeds relating thereto
shall be apportioned, shall, at the request of either Contracting Party, be
referred to a single Arbitrator to be jointly appointed by the Contracting
Parties. The decision of the Arbitrator shali be binding upon the Contracting
Parties.
Article 3
The Contracting Parties shall, at the request of either, consult regarding the
extension of this Agreement to minera1deposits other than those referred to in
Article1of this Agreement.
Article
(1) This Agreement shall be ratified. Instruments of ratification shall be
exchanged at The Hague as soas possible.
(2) This Agreement shall enter into force on thofdthe exchange of
instruments of ratification.
(3) Either Contracting Party may terminate this Agreement by giving to the
other at least twelvemonths' notice in writing.384 NORTH SEA CONT~NENTAL SHELF
(4)If at the time of the termination of this Agreemanreference to an
Arbitrator has been made in accordance with Article 2 of this Agreement, the
arbitratioshallbecompleted in accordance with the provisions of this Agree-
ment or of any other Agreement which the Conttacting Parties may have agreed
to substitute therefor.
IN WITNES S HEREOP the undersigned being duly authorised thereto by
their respective Governments have signed the present Agreement.
DONEin duplicate at London, the 6th October, 196inthe English and
NetherIands languages, both texts being equally authoritative.
For the Government of the United Kingdom of Great Britain and Northern
Ireland:
(sd.)WalterPADLEY
For the Government of the Kingdomof the Netherlands:
(sd.) D. W. van LYNDEN. NOTE FROM THE EMBASS OF BELGIU MT THE HAGUE OF 15 SEPTEMB 19R65
tMBASSADE
VAN
BELGIË
--
No.. 40/7225
De Ambassade van België te 's-Gravenhage biedt
haar complimenten aan het Ministerie van Buitenlandse
Zaken aan en heeft ae eer te verwijzen naar de nota van
het Departement No. 735593, Directie Europa, Bureau West-
Europa, van 26 augustus 1965, aangaande de begrenzing van
het Continentaal Plat.
De Ambassade heeft opdracht gekregen het Departe-
ment te laten weten dat de Belgische Regering kennis
heeft genomen van het Nederlands voorstel on op korte
termijn over te gaan tot het openon van officiele bespre-
kingen tussen beide Regeringen.
Het onderwerp van deze besprekingen lijkt de Bel-
gfsche Regering vrij eenvoudxg en zal haar inziens geen
aanleiding geven tot ingewikkelde discussies, gezien d.e
eenstemmigheid van inzicht die er tussen de beide landen
bestaat over het principe van de equidistsntie en de prak-
tische toepassing ervan.
Wat betreft het tijdstip dezer besprekingen, zou
de Belgische Xegering er de voorkeur aan geven dat deze
begin oktober zouden plaats vinden, dit in verband met de
afwezigheld gedurende de laatste week van september van
deskundigen waarvan de aanwezigheid gewenst is.
In de hogergenoemde nota No. 135593 stelde het
Ministerie van. Buitenland'se Zaken aan de Ambassade eveneens
de vraag of de Belgische Regering zich officieel akkoord
kon verklaren met de coordinaten 5f048'18" N en 2'28'54" 2
die de Regeringen van Den Haag en Londen hadden aanvaard
ter vaatstelling van het gemeenschappelijk grenspunt tussen
an het Ministerie van Bultenlandse Zaken
te '8-Gravenhage NORTH SEA CONTINENTAL SHELF
Groot-Brittannië, België en Nederland.
Dienasngaande werd aan de Ambassade opgedragen het
volgende te preciseren.
Het Ministerle van BuitenLandse Zaken zal.we1 op de
hoogte zijn van het feit dat er nog geen Belgische wet be-
staat betreffende het Continentaal Plat; de Belgische
Regering ziet dan ook niet in op welke wijze zij officieel
haar instemming met de genoemde coordinaten zou kunnen
betuigen zolang het wetsontwerp .dat onder de vorige Rege-
ring werd uitgewerkt en door het ontbinden van het Belgische
Parlement werd tegengehouden, niet de vorm van wet zal
hebben aangenomen; naar haar menine zou het een dergelijk
akkoord ontbreken aan interne juridische grondslagen.
De Belgische Regering gelooft echter niet dat dit
punt van dien aard is dat.het enlge moeilijkheden zou
kunnen teweegbrengen, aangezien het hier een eenvoudige
kwestie van tijd betreft.
De BeLgische Begering heeft haar Ambassade in Den
Haag dan ook opdracht gegeven te preciseren dat zij intussen
geen enkel bezwaar zal aanvoeren tegen de coordinaten
51" 48'18'' a en 2*~8~54" i, die a19 gemeenschappelijk grens-
punt tussen de Regeringen van Nederland en Groot-
Brittannië overeengekomen zijn en die door de Belgische
deskundigen als aanvaardbaar werden beschouwd.
De Ambassade van België benut deze gelegenheid om
aan het Ministerie van Buitenlandse Zaken de uitdrukking
harer meeate hoogachting te hernieuwen.
1s-Gravenhage, 15 september 1965 COUNTER-MEMORIALOF THE NETHERLANDS
Annex 13 A
(TranslationJ
EMBASSY OF BELGIUM
No. 4017225
The Embassy of Belgium at The Hague presents its compliments to the
Ministry of Foreign Affairs and has the honour to refer to the latter's Note
No. 135593,Europe Department, Western Europe Section, dated 26 August
1965,concerning the delimitation of the Continental Shelf.
The Embassy has been instructed to inform the Ministry that the Belgian
Government has taken note of the Netherlands proposal that official con-
sultationsbe started at an early date between the two Governments.
The subject of these consultations appears to the Belgian Governrnent to be
fairly straightforward and in the latter's opinion should not give rise to com-
plicated discussions in view of the concurrence of opinion between the two
countries on the principle of equidistance and the practical application thereof.
As regards the date of these consultations, the Belgian Governrnent wouId
prefer them to take place at the beginning of October, this in connection with
the absence during the last week of September of experts whose presence is
desired.
In the above-mentioned Note No. 135593,the Ministry of Foreign Affairs
also asked the Embassy whether the Belgian Government could officialIy
declare itselfto be in agreement with the CO-ordinates51'48'18"N and 2"28'54"
E which the Governments at The Hague and London had accepted in deter-
mination of the common point of deIimitation between Great Britain, Belgium
and the Netherlands.
On this subject the Embassy was instructed to state the following.
The Ministry of Foreign Affairs will certainly be aware of the fact that there
is as yet no Belgian Act of Parliament in respect of the Continental Shelf; the
Belgian Governrnent is therefore unable to see in what way it could officially
express its approval of the said CO-ordinatesas long as the Bill that was elab-
orated under the former Government and washeld up on account of the dissolu-
tion of Parliament has not passed into law; in the opinion of the Belgian
Government, such approval would be without foundation in domestic legisla-
tion.
The Belgian Government does not believe, however, that this point is such
that it could create any difficulties, seeing that nothing more is involved here
than a question of time.
The Belgian Government has therefore instructed its Embassy inThe Hague
to state that the former will meanwhile raise no objection to the CO-ordinates
51°48'18" N and 2"28'54"E which have been agreed upon by the Governments
of the Netherlands and Great Britain as determining the common point of
delimitation and which have been deemed acceptable by the Belgian experts.
The Embassy of Belgium avails itself of this opportunity to renew to the
Ministry of Foreign Affairs the expressionofits highest consideration.
The Hague, 15 September 1965. NORTH SEA CONTINENTALSHELF
Annex 14
[See Annex 14 to rhDanishConnter:Memoriai,p. 280, supraj
Annex14 A
(See Annex 14 Ata the DanishCounter-Memuriai,p. 290, supra]
Annex 13
[See Annex 13 tutheDanis Chounter-Mernorial,p. 259, supra]
Annex 16
[See Annex 15 tothe DanishCounter-Memorial,p. 299, supra?
Annex17
[See Annex 16 to thDanis h olinter-Mernorip.305, supra]
Counter-Memorial submitted by the Government of the Kingdom of the Netherlands