ITùTERNATIONALCOURT OF JUSTICE
PLEADINGS,ORALARGUMENTS, DOCUMENTS
NORTH SEA CONTINENTAL
SHELF CASES
(FEDERAL REPUOFGERMANY/DENMARK;
FEDERAREPUBLTCOF GERMANY/NETKERCkNDS)
VOLUME1
COURINTERNATIONALENSLICE
AFFAIRESDU PLATEAU
CONTINENTALDE LA MER
DU NORD
(REPBLIQEFGDERED'ACLEMAGNEIDANEM;RK
R~PUBLIQUEFÉDÉRALE D1ALLEMAGNE/PAYS-BAS)
VOLUME 1 COMMUN REJOINDER SUBMITTED BY
THE GOVERNMENTSOF THE KLNGDOM
OF DENMARK AND THE KINGDOMOF
I THENETHERLANDS
INTRODUCTION
1
1.This Common Rejoinder of the Kingdom ofDenmarkand of the Kingdom
of the Netherlands to the Reply of the Federal RepofGermany is sub-
mitted ro the Court in pursuance of theofthe Court dated 26April 1968.
2. TheGovernments of the Kingdoms of Denmark and of the Netherlands
note the considerations set out In the above-mentioned Order which have led
the Court to conclude that the two Governmearein a common interest In
the proceedings and to decidc that they should file a Common Rejoinder.
The two Governrnents appreciate the couvenience whthisprocedure may
havefor the Court in the present caseinaccordance with the terms of the
Order, have drawnup their comments upon thetwo Replies of the Federal
Republic of Germany aa Comrnon Rejoinder.
3. The Governments of the Kingdoms of Denmarkand of the Netherlands
at the same time emphasize that their respectcases against the Federal
Republic of Germany were instituted by separate Special Agreements and
concern the delimitation of difïerboundariesof the continental shelf to
i seawards from differcntparts of the NSeacoast of the continent of Europe.
The two Governments are thus inacommon interest in the proceedings only
inthe sensethat the issuelxforc the Court in both tis"what principles
and rules of intcrnationaareaapplicable to the delimitation as bctween the
Parties of the areas of the continental shelf in the North Sea which appertain
to each of thern" beyoncertainpartial boundarialreadydetermincd and
that the principles and ruof international law which eachGovernment
considers to k applicable in its case correspond. In al1other respects their in-
terests in the proceedings are entirely different and, in their substance, even
divergent; for each of the two Governments is contomaintain its rights
to thareaof the North Sea continental shelfwhichappertains toomnes,ga
that is, vis-&vis each and evcry other North Sea Power, including bolk the
other two Particsto the present proceedings.
Tn this connection, it mbe recalled that in its Counter-Mernoriai the
Danish Government (paras. 152-156anfig3) has taken the position Chatthe
delimitation of itscontinental sheif boundary vis-&vis the Federal Republic is
dependent on theconjïgurations ofthecousisofDenmarkandof #heFederal
Republic in their relat60each other; and that in its Counter-Mernorial
(paras. 147-151and fi.) the Netherlands Government has taken the position
that the delimitation of its continental shelf boundary vis-&FederaZ
Republic js dependeon theconfigurationsoizlyofcoastsoftheNelher1and.s
andof the Federal Republicin threlatiotoeach orherIn otherwords,the
two Governments have cach insistedupon the entirelyseparate choftheer
issues between them and the Federal Republis as wncerns the substance454 NORTH SEA CONTINENTAL SHELF
of the matters in dispute, that is, areas of continental shelf which appertain
20 the respectivecoasts of the three countries.
Xtrnay also be rfxalled in this connection that the partial continental shelf
boundarim, which already exist between, on the one hand, Denmark andthe
Federal Republic and, on the other hand, the Netherlands and the Federal
Republic and which arereferrcd to in the resp~ctiveSpecial Agreements sub-
rnitting the two cases to the Court, were agreed upon in wholly separate nego-
tiations and were delimited wholly independently of each other by reference
exclusively,in the one case,to the coasts of Denmark and the Fedaal Republic
and, in the other, to thcoasts of the Netherlands and the Federai Republic.
4. Accordingly, having separate pointsof view in regard to the substance of
the rnatters in dispute, the Governments of the Kingdoms of Denmark andof
the Netherlandshave included in this Cornmon Rejoinder certain observations
for which the Danish Government is solely responsible (para. 142)and certain
other observations for which the Netherlands Government is solely responsible
@ara. 143).
5. In its Reply the Federal Republicasit wasentitled to do, has both added
to and amended its submissions. These revised submissions willbe commented
upon Iater in so far as rnay appear nwessary. But the two Governments cannot
refrain in this Introduction frornonce drawing attention to theextraordinary
character of the new Submission 4 contained in the version of the Federal
Republic's subrnissionswhich now confronts the Court '.
The firssubmission asks the Court to say Chat thedelimitation of the con-
tinental shelf between the Parties in the North Seais governeby the principle
that each cuastal State isentitledto a just and equitable "shase". This sub-
mission is followedby a series of negative submissians, developed in two para-
graphs, which are designed to indue the Court to discard the equidistance
principle as a relevantpnnciple or rule of international law. The finalsub-
mission then reads:
"Consequently, the delimitation of the continental shelf in the North
Sea between the Parties is a rnatter whicha9 to be settled by agreement.
This agreement should apportion a justand equitable share toeach of the
Parties in the light of al1factors relevant in this respect."
The extraordinary chat-acterof this submission liesin the fact thaseems to
question the very basisofthe Special Agreements by which the two cases were
referred to the Court.
6. The Governments of the Kingdoms of Denmark and of the Netherlands,
in the submissions contained in their Counter-Memorials, have pointed out
that the prcsentcase save ken brought berore the Court precisely because in
each of them the Parties had established that in regard to the fucther course of
the boundary a disagreement existed betwcen them which could not be settled
bydetailed negotiations. They have also pointed out that this state of disagree-
ment isexpressly raorded in each Compromis and that the task-the only
task-entrusted to theCourt in each case is to decidewhat principles and rules
of international lawareapplicable to the delimitatioas between the Partiesto
the case in question, of theareas of the continentalshelfwhich appertainto
Reply, p.435,supra. COMMUNREJOINDEROF DENMARK AND THE NETHERLANDS 455
each of them. The final submission In the FederalRepublic's Reply seerns to
invitethe Court, disregarding the clear terms and express object of the Com-
promis, to laydown as a principle or rule of international Iawthat "the delimi-
tation isa matter which has to besettlcdby agreement" subject only to a rider
that "thisagrwment should apportion a just and equitabIe share to each of the
Parties in the light of al1factors relevant in this respect".
Under Article 1, paragraph 2 of the Compromis, Denmark and the Federai
Republic in the one case and theNetherlands and the Federal Republic in the
other case, have,it is tsue, undertaken thaa&er the Courr hasgiven iu decision
regarding theapplicableprinciplesandrules 01 infernarionallaw they willrespec-
tively delimit the continental shelf in the North Sea as between their countries
by agreement in pursuance of the Court's decision. But this is quita different
thing from what theFederal Republicseeks to obtain from the Court in its fina'
submission. There the Federal Republic asks the Court to decide underpara-
gragh 1 of Article 1 ofthe Compromisthat ineach casetheprinciple or rule of
law applicable tothedelimitation of the continental shelf asbetweenthe Parties
isthat the delimitation is a matter which has to be settleby agreement. This
deprivestheCompromis ofal1meaning. Inthe Compromis, aspointeclout above,
the Parties exvresslvrocordedtheir disamement. and their inabilitytosettlethis
disagreement bydetailcdnegotiations andwent on to askthe court to decidethe
applicable principlesand rules of international law inordertharfheyrnightafler-
wards beinaposition foreackagreement ipipursuanceojrhe Court's decision.
7.Nor isthe incompatibility of this submission with the Comproniis in any
way diminished by the rider attached to it, which exhorts the Parties that their
agreement should "apportion a just and quitable shareto each of the Parties
in the light of al1factors relevant in this respect". In effect, this exhortation
merely reproduca the so-called principleof the "just and equitable share",
which forrns the subjectof the first subrnission, addingto it the words "in the
light of al1factors relevant in this respect".
The so-called principle of the"just and equitable share" has already ken
subjected to stringent criticisms by thetwo Governments in their respective
Counter-Mernorials (Part TT,Çhapter 1) and will be further discussedin Chap-
ter 1ofthis CornmonRejoinder. Hereit suficesto recallits compIetelack of any
objectivelegalframe of referencebywhich to detemine what ia to beconsidered
a "'justand equitable share" in any given situation. In the context of legal
rights, what is "just" and what is "equitable" çan be appreciated only by
referenceto objective and legally recognized criteria. Tn the two cases now
before the Court the good faith of the respectiveParties isnot in question. They
are in dispute precisely because they differ in their appreciations as tu what is
"just" and "equitable" as between them under international law. Ttiherefore
serves no purpose whatever, and knocks the bottom out of the Compromis, for
the Federal Republic to ask the Court merely to direct the Parties to settb
their dispute by agreement in a manner which will give a "just and equitnble
share" to each of them.
Furthermore, the addition of the words "in the light of al1factors relevant
in this respect" merelyservesto underline the complete absenceof any objective
lepl criteria in the Federal Republic'sfirstand fourth submissionsln Section 5
of Chapter III, entitled "Conclwsions", the Federal Republic does indoed speak
of "the breadth of the coastal front of each State facing the North Sea"as an
"appropriate objective standard of evaIuation with respectto the equitableness
of a proposed boundary". lndeed in paragraph 97 the Federal Republic goes
to the length of saying that "the breadth of the coastal front of each State is
the only appropriate standard by which to dcterrnine the equitableness of the456 NORTH SEA CONTINENTAL SHELF l
apportionment effected by the proposed boundary". But it has not dared to
include this suggesied objective standardofevaluation in its legal submissions
to the Court Jor the very good reason fharifknowsrhisso-calkd standard of
maluarion to have izolegulfowdalion whadever.
Admittedly, the Eederal Republic has sought in its Reply to give the so-
called principle of the "just and equitable share"the aura of a principle or ruIe
of international law by christening ita "general principle of law recognized
by civilizednations" within the meaning of Artiçle 38, paragraph 1(c), of the
Statute of theCourt. The inadmissible character of this attempt to legitimate
the so-called principle will be dernonstrated in Chapter 1 of this Common
Rejoinder. utevei if the so-calleclprinciple could be regardedasa principle
of interilutionallawapplicablein thcontexrof thedelimitaiionof the continental
shelf, it would still furnish no objective criterbynwhich to determine what
would be a "iust and equitable" delimitationas lxtween the Parties.
8. The Federal Republic, in short, seemsin its finalsubmission to be vktually
asking the Court ta pronouncc a non liquei and to mnd the case back to the
Parties to negotiate afrmh the delimitation of their respective continental
shelveswithout any suffiçientlegal criteria by which to determine that delimita-
tion. The two Governments, before they are asked in negotiations to yield a
single rnetrc of the continental sheif which naturally appertains to thunder
the principles contained in the Continental Shelf Convention, are entitledto
know upon precisely what legal basis that metre ought to be regarded as
appertaining ta the Federal Republic rather than to Denmark or, asthe case
may k, the Netherlands. They are the more entitled to be sa informed when
the Federal Republic explicitlyrecognizes the justice and equity of the deiimi-
tation of al1other continental shelf boundaries in the North Sea on the basis of
the very legal principles contained in the Convention and invoked by the two
Governments. Under pressure of Chearguments in the Counter-Mernorials the
Federal Republic has amended its submissions so asto daim that, if the ptin-
ciples containd in Article 6 of the Convention are applicable, specialcircum-
stances within the meaningof the ruleexist in the presentcase.But precisely
what constitutes those special circumstanoes the Federal Republic has not
askedthe Courtto decide. Moreover, the closer the Federal Republic'scontcn-
tions regarding special circumstances are examined, the more clearfy it appears
that the "specialcircumstmces" claimed by the Federal Republic in the present
case are nothing more than its discontent with the area of continental sheIf
which falIs to the Eederal.Republic undera delimitafion made on the basis of
theapplicablepripiciplesand rulesof law.
III
9. This Common Rejoinder isdivided into the following Parts:
Part 1, which contains the following Chapters:
CAapter1 elaborating the views of the two Governments regarding the essence
of the issue before the Court and showing that the question isoneofdelimi-
tation of boundaries, not one of sharing oua cornmonarea and still less one
of sharingout according to a "coastal frontag" conccpt hitherto unknown
ininternational law.
Chapter 2deding with the applicability of the principles and mles of delimita-
tion expressed in Article 6 of the Convention on the Continental Shelf,
thereby showing that these prjnciples and rules are not only in çonformity COMMONREJUINDEROF DENMARK AND THE NITHERLANDS 457
with existing practice of delimiting maritime arbutare also the çoncrete
expression of the principle of adjacency underlying Article1 to 3 in the
Continental Shelf Convention.
Chapter 3 dealing with the interpretation of the special çircurnstanoes clause
in Article 6, showing that this clause cabeoapplied in the present dispute
because a boundary other than the equidîstaoce lineisnot justzed by any
special cirçumstance within the meaning of the clause. This Chapter further
contains the individuai observations of the Kingdom of Denmarkand the
Kingdom of the Netherlandsmentioned in paragraph 4 above.
ParrII, which contains the subrnissions of each Governrnentto the Court
regarding the principles and rulesof international law applicable to the delimi-
tationas betweenthe Parties of the areasof the continental shelf in North
Sea which appertain to each of them.
Pari III, which containsthe Annexeswhich, inter alfa,set out certaiaddi-
tional information on remntState practice regarding the continental sheif.460 NORTH SEA CONTINENTALSHELF
princîpIes of international lawas fomulated in the submissions of Denmark
and the NetherIands, are in full confomïty with generally secognized and
accepted international norms relating to the drawing of boundary lines in
general and to the delimitation of freswater and seaareas in particular.
Section 1.Rules and minciples ofInteniatiooalLaw reiatingta the Deter-
minationof BoundaryLinesin General
15. Before going into a detailedanalysis of the allegations of the Fedesal
Republic relating to the contents of the relevant rules and principlof inter-
national law, it may be usefulto mal1 the general spirit of the rules and prin-
ciplesof internationallaw relating to the determination of boundary lines.
The rules and principles of present-&y international law relating to the
delimitation in spaceof sovereignty or sovereign nghts are indeed "marginal"
in the sense,that they presuppose the CO-existencein fact of various States-
or centres of power-each having already a "territory", i.ea,more or less
dehed space, within which such power is Infact exercised exclusivelyby each
State. Taking their startinppoint in this factual situation theruIesof inter-
national law do norpretend to "distribute" the total space, availablefor human
activities, between the varioStates,but ratheraccept in prjnciple the factual
situation, according to which each State determines itsown exclusive sphere
of activities in spaae, and dno more than limit the discretion of Statesin
thisrespect, particularly in vieof its relations with neighbouring StatesIn
other words, It is not the territory afState as awkole, but the boiindriryline
between the territories of neighbouring States-Le., the exact points where
the extension in space ofthe sovereignrights of one State rneets the extension
in space of the sovereign rights of another Siate-which is the objact of rules
and principles of internationalIaw.
Accordingly, where, betweenneighbouring States, theexact delimitation of
their respective territories is uncertain or disputed, international law has devel-
oped criteria forthemore precisedetermination of the boundary lineand settle-
ment of such disputes.These criteriaare of various kinds, butwhatever their
nature and character, the effect of the determination of thc boundary line on
the totalsurface of the krritoryof the one State in comparison with the total
surface of the territoxof the other State, inevera legally relevant element.
Tndeedthe rules and principles of international Iawrelating to delimitation
of territory betweentwo States do notproceed in the way allegedby the Federal
RepubIic of Germany. They do not start from the assumption that the total
territories of both parties put together (thereby iincludingthe area lying be-
tween the boundary line asclaimed by the one party and the boundary line
as claimed by the other party, i.e., the disputed area) aaesingle unit to be
shared out-"equitably" or othemise-between the two States in dispute.
Nor do they consider ~hedispurcdare0 as an area tok shared out between the
States in dispute. On the contrary, the nomal process is that the claim of each
party as to the boundary Ilne is put tathe test of the niles and principleof
international law;in short, that the better claim prevajls. And evenabound-
aryline is determined which does not correspond fu'llyto either daim thjs is
because the rules and principles of international law indjcate such boundary
line. The fact that such boundary linmight be found to "divide" the "disputed
area" kcause it lies betweeuthe two boundary lines as claimed bythe parties,
isno more than an optical illusion formed a posteriori, neither of the clairned
lines-nor, consequently, the "disputed ares"-having any legal meaning
under the niles and principlesof internationallaw.
16. This process of determination of boundary lines by the rules and prin-462 NORTH SEA CONTINENTAL SHELF
Memorial and in Annex 15 of the Netherlands Counier-Mernorial) "are not
true eguidistanoe linesin the full sensebecauseonlya limited nurnber of points
on the boundary have ben debed as being equidistant from certain coastal
points".(Sirnilarrernarks are made at various places in the Anneto the Reply.)
Now obviously in praciice every boundary line drawn in accordance with the
equidistanceprinciple is nomore than approximare al"true" equidistance litze
in the mathematical senseof the word; there isalwayssome amount ofsimplifi-
cation in order to arrive ata practicable solution.
Eurthcrmore-as developed elsewhere in the present Rejoinder-ar specljîc
poiirts deviatlons from the "true"-or everi from the "rough"+quidistanfe
line may be ampted for reasons of "hiscoricrights" in a specjficareathrough
which part of the equidistance line would run or in view of "special circum-
stances" relating to specificbase-pointfrom which the equidistance Iine would
be construed.
But the relevant fact hereis that in al1those cases the concept of the natural
contjnuation of the land territory into the fresh-wateranseaareas, asreflected
in the equidistance principle, remains the basis of the determination of the
boundary line. And equally relevant is that, whatever deviations from the
equidistance line are admitted, the reasons therefor are aor to be found in
considerations relating to the equaIityor propartlonality of the total surface
of the fresh-water orsea areas Iyingon either slde of the boundary line.
18. IRparasaph 14 of its Reply the Federal Republic of Gerrnany attempts
to nullify the differencebetween the approach of the alleged principle of "just ,
andequitable share" and the approach of the existing rules and principles of
international law relatinfo the detemination of boundary lines, by qualifying
the distinction made in the Danish and the Netherlands Çounter-Memorials
ktweea delimitation and sharing-out of areas of the continental shelf as a
"rathm artificial verbal distinction". The only reason givForthis qualification
is that "it is evident that any delimitation betweentwo States riecessarilyallots
each of them a certain share of the sheso divided". Now obviously, as already
remarked above, if oneState claims a particular boundary line andthe ather
State claims another particular boundary line, it is possibto regard the area
lying between those two lincs as a "disputed area".If then, $y agreement or
judicial settlementa third boundary line, lying between rhe two ctairned lines
is determinedas dheboundary line, it is possibIe to compare a posteriori the
total surface of the part of the "disputara" Iyingon one side of that bound-
ary line with the total surface of the part of the "disputed area" lying on the
other side of that boundary. But the questionis no1whether suchan operation
is technicallypossible, but whetheitisIegallyrelevantfor the application of the
rules and principles of internationalIaw relating to the determination of the
boundary line. As explained above, the answer to the latter question isdefinitely
a negative one, for the simple but essentiareason that the rules and principles
of international law in this field deal wirh the posiiion of the boundary line
and are not concerned with the result in terms of proportional shares of the
total surfaceofany area,let alone the "disputed area". Indeed, wliat the Federal
Republic ofGerrnany qualifies as "the rother artificial verbal distinction" is in
reality anexpression of a fundamentaldi'ererice inIegalapproach.
One couldimagine an international Iegal order which distributed the total
spaceavailable for human adivities between the various exjstingStates, thereby
aIlottingto each State a particular territory on thebasisof its needsin com-
parison with those of othcr States. But itIs obvious that this is not the legal
approach of the rules and principles of internationallaw as they exist today.
On the contrary, those riiles and principles take their starting-point in the COMMONRBJOINDEROF DENMARK AND THE NETHERZANWS
463
factual situation ofeach State, and, in particular in so faasthe delimitation
of sea areas appertaining to sucb State is conçerned, proceed according to the
concept of contiguity or propinquity.
Indeed the Federal Republic of Germany scems to acoept-se, itrtealia,
paragraph 88 of the Reply-"the generaily recognized conception that the
rights ofa State over the continental shelf before its coast havetheir Iegal basis
in the continuation of the State's territory into the seNow it is inkerenin
the principle of continuation of the land territory intosea,that the seaareas
are no more ''eqquitablydistributed" betwen States than the land masses are
"equitably distributed" between States.
Section II. The Alleged Prîncipleof Juçt andEquitable Sbares
19. The Federal Republic of Germany attempts to find support for its sub-
mission that-
"the delimitationof the continental shelf between the Parties in the North
Sea is governedby the principle that each coastal State is entitlea just
and equitable share" (Submissiw 1, p. 435, supra, of the Reply)
in an alleged general principle of law recognized by al1nations formulated by
the Federal RepubIic in the foliowing terms:
"each State rnay claim a just and equitable share in resources to which
two or more States have an equaltyvalid title" (Reply, para. 11).
Itissignificant that theFederal Republic dws not even try to addiice ex-
amples of the application of this alleged "principle" in international conven-
tions, judicial or arbitral decisiorsthe practice of States. Indeed the Federal
Republic states only that the alfeged"principie" has "an inherent, self-evident
and necessary validity" (ibid.).The Federal Republic of Germany evengoes
so far as to state that this "inherent, self-evident and necessary validity" is
"evidenced . .. by the fact that the Counter-Mernorial, while trying tobrush
it aside on procedural grounds, does not dareto atiack its legal substance".
Now actually, a largpart of the Coianter-Memorials is devoted to a denial
of the "legal substance" of the alleged principle. Neverthelitmay be helpful
to go somewhat further into the rnatter in the present Rejoinder.
20. First oFal1it should ti emarked that, whereas the alleged principle is
formiilated interms of "a just andequitable shaw in resouvces"[italics added),
the submission, bascd solely on thisalleged principle, deaiswith a "justand
equitable share" of the continental shelf as anrea, the total surface of which
shoiildbe divided betwcen the coastal States in proportionto the breadth of
their coastal front. Now it is obvious that there is no necessary connection
between thesurface of an area and the amount of exploitable resources therein.
In particular, there is no connection whatsoever between the resources and
the breadth of the coastal front, which, in the opinion of the Federal Republic
of Gerrnany, is the only appropriate standard by which to determine the
equitableness of the apportionmcnt (Reply, para, 88). Tndeedthe total amount
of the nat~iralresourcesof the area, indicatedas the continental shelf beneath
the North Sea, is unknown and the same goes for the location of those rc-
sources. Therefore, even if thealIeged principle were indeed part of positive
international Iaw-quod noiz-ii would be impossible to apply it to the present
case. It rnaybe remarked in passing, that even if the total amount and exact
location of al1the natural resoums were known with regard to a particular
area of continental shelf, it would be dificuloreven impossible Codistribute
these resources between a number of States through the drawiilg of boundary
lines in space, without giving up the conception ofa con~inuafionof the land COMMONREJOINDEROF DENMARK AND THE NETHERLANDS 465
23. It should also be noted in passing that this-in itself inadmissible-
analogy, as invoked in paragraph 35 of the Mernorial, is manipulated by the
Federal Republic in a highly selective fashion. In paragraph 35 the Federal
Republic cites with apparent approval Articlc V (1) of the Helsinki rules and
indeed in submission 4 of its Reply usm an almost identical formula: "a just
and equitable share . ..in the light of al1 factors relevant in this respect".
But if one looks at what the Helsinki rulesconsider as "relevant factors" one
finds i,ter alia, the following factors: (Article(21, under (el, (J), (g)and
(h) of the Helsinki rules-
"(e) the wonornic and social needs of each basin State;
(S) the population dependent on the waters of the basin in each basin
State;
(g) the comparative çosts of alternative means of satisfying theeco-
nomic and social needs of each basin State;
(h) the availability of other resources;".
One would expect the same or similar "factors" being mentioned by the
Federal Republic of Germany as relevant "factors determining the share of
each adjacent State". But there is no referenceta such factorin paragraphs 76
to 81 inclusiveof the Mernorial dealing with alleged "Criteria For a Just and
Equitable Apportionment of the Continental Shelf in the North Sea"!
Admittedly, paragraph 79 of the Mernorial mentions in passing the "eco-
nomic needs" of the Federal Republic and the "particular economic capacity"
of the Federal Republic, but in the samc paragraph the Fedcral Repubiic
declares "thar it does not wish to base its claion tliese considerations". On
the contrary, in paragraph 97ofits Reply itisstared that "the Federal Republic
maintains that ... the breadth of the coastal front of each State is the only
appropriate standard by which to determinc the equitableness of the apportion-
rrienteffected by the proposed boundary" (italics added).
No trace whatsoever is left of the idea of "distribution stccordingto needs"
which underlies the Helsinki rules!
23. Leavingaside the confusion betweenresources and spaoe,and supposing
rhat thealleged general principle of lawasstated in paragraph Il of the Reply
is meant to refer to the continental shelf as space rather than to resources,
itisstill dificult iounderstand what relevancethe allegedprinciple could have
for the prescntcase or indced for any other case relating to boundary Iineaon
a continental shelf. The application of the aileged principleby a sharing-out
operation presupposes that "two or more States have an equally valid title"
to a continental shelf. Applied to the North Sea the supposition wauld be
that al1the States bordering the North Sea would have an equally valid title
to the whaleof the continental shelf under that sea. Now such a supposition
is inflatcontradiction to rhe attitude of a/[ those States, with the single ex-
ception of the Federal Republic of Germany! Al1other North Sea States have
from the outset limited their claims to an area the boundarics of which are
determined by the equidistance principle. It is true that one of thos other
States, France, claims an adjustment of the equidistance line in sp~cificully
menrioiredgeographic areas.But this claim does not affect the validity of the
equidjstancc principle and jsnot based, as the Fcderat Republic of Germany's
claim is, on the argument that the fotal surface of the part of the continental
shdf, aIlocated to France undcr the equidistmce principle, represents an
"inquitaMc share".
Apparently the Federal Republic accepts the equidistance lines, in their
median lineforrn, asthe limitof thecontinental shelvesappertainingto Belgiurn,
the Netherlands, the Federal Republic of Germanyand Denmark as regards466 NORTH SEA CON~NENTAL SHELF
the United Kingdom and Noway. The Federal Republic has also raised no
objection to the application of the equidistance principle in the lateral de-
termination of the boundary line of the continental shclvesof the Netherlands
and Belgiurn.
Should it then be understood to be the legal point of view of the Federal
Republic that Denmark, the Federal Republic and the Netherlands each have
"an equally valid titIe" to the whole continental shelf area adjacent to the
coasts of those three States, the outer limits of which aro determined by strict
equidistance lines vis-à-vis rhe other North Sea States? Tt is hard to believe
and, in any case, neither Denmark nor the Netherlands claim such a titb!
Indeed, in the opinion of Denmark and of the Netherlands, an opinion
clearly shared by the other North Sea States except the Federal Republic,
a valid title only exists in rcspect of the continental sharea truly adjacent
to the coastal State, Le.an area limited in principle by boundary lines drawn
in accordance with the equidistance method. But, if it is not true that the three
States involved in the present dispute have each an cqualIy valid titIe to the
whole of the continental shelf area adjacent to the the States, the alleged
general principle would seem to be irrelevant to the prcsent case.
Indeed the alleged principle, as fomulated by the Ecdcral Republic, wuId
not, even if it existed, help to solvc the present dispute, which actudly turns
on the question to what am of the continental shelf each of the three States
has a "valid title".
The formulation of the allegedpnnçiple aspresented by the Federal Republic
once again shows the fundamental misconception on which the FederaI
Republic's case is based. The rules and principles of positive international law
do nul proceedfrom the assurnption of the continental shelf being "common
property" of the coastal States adjacent to it. The coastal States diloreach,
have an "equally validtitle" ta the continental shasa whole. On thecontrary,
to each coastal State separately appertainsipsojure the continental slielarea
adjacent to ifs coast and that area is apriori "inherently, necessarily and self-
evldently" limited by the geographical facts.
24. Ifone accepts, asthe Federal Republic does, infer dia, in paragraph 88
of the Reply-"the generally recognized conception that the rights of a State
over the continental shelfbefore its coast have their legal basis in the çontinua-
tion of the State's territory into thesea", it is clear that such coiitinuatlon
muscbe based on the actual coastline since it is from the actual coastline that
the land territory "continues" in and under the sea. lndeed the Figures 1-3
Ipp. 427and 428, suprao )fthe Reply clcarlyshowthat, in ternis of continuation,
only the actual coasthe, and not the "general direction of the coast" can be the
sdartiiipoint for judging what part of the sea or sea-bed isa continuation of
the land. It is equdly clear that from this point of vicw there ino difference
between opposite andadjacent States, as there is no difference ktween "en-
closeci"or "not-enclosed" seas. In al1those cases the continuation of one land
territory mets the continuation of another land tcrritory, with the result that
questions arise of the determination of the boundary line betwccn those areas.
It is the merit of the equidistance principle that it fully takes into account
the actual coastlines In determining ia mathematically correct waywhere the
continuation of one coast ends in meeting the continuation of another coast.
In other words the equidistance principle in sea areas astranslation of the
continuation-~onception and excludes considerations OF comparative surface
shares.
The mathematical rnethod of drawing the invisible baundary lines, which
are al1 that is possibIe over the open sea, and of which the equidistance line COMMONRWOINDER OF DENMARK AND THE NETHERLANDB
467
isan example, is particularly suited to conditions such as those which prevail,
intedria,in regard to the continental shelf. Morcover, unless the lineisto he
more or lessarbitrary, the precise limits to which sovereign righof a State
extend in spaçc could-in relation to the sea-bed and subsoil-hardly be
determincd in any other way than by the equidistance method if similar rights
of other States are Invulved.
The effective exercise of sovereign rights by a State in a particular area
cannot be acriterion, it bcing generally recognized thaas stated in Article 2,
paragraph 3, of the Geneva Convention on the Continental Shelf, the rights
of the coastal State doizofdepend on occupation, effectiveor notional, or an
any express proclamation.
Nor-the question of sedentary fisheries apart-could the rcgular use of a
particular area by nationds of one State rather than by nationals of another
State-"trüditional" or "historie rightsm-provide a criterion. Such "tra-
ditional" use for the purposes of exploration and exploitation of the natural
resources of sea-bed and subsoil dues not exist, and, even if it existed, is
excluded as a title to the continental shelby paragraph 2 of Article 2 of the
Geneva Convention on the Continental Shelf. Other traditional uses, such as
fishingin particular areas, cannot affectthe boundary line, those activitiesbeing
safeguarded by other provisions of the same Convention.
The ~Memorialand the Reply suggest considerations of "equity" ascriteria
for the delimitation.
Nom, obviously, such considerations, if atal1 valid, could only lead ta a
correcrioriof lines, drawn according to oiher criteria. These considerations, in
other words, could apply to the resulfof the drawing of boundaries according
to other criteria.
lndeed the whole argument of the Federal Republic b that the application
of the equidistance method in the particular case now before the Court results
in acomparatively small surface of the area belonging to the Federal Republic.
But the Mernorial and the Reply fair cornpletely to indicate for what reason
and on the basis of what considerations this result would be "hiequitable",
In plain words: why should the Federal Republic's continental shelf have a
larger total surface? And where should this additional surface be located?
And why shauld such additional surface be provided by Benmark andlor the
Netherlands rather than by other countries adjacent to the North Sea? And
why should only the Federal Republic receive additional surface andnot other
countries adjacent to the North Sca?
" The truth of the matter is that there issimply no basis, either in faw or in
equity", for thc Federal Regublic's claim for additional surface.
25. In this respect it is significant that the Fedcral Republic requests the
Court to recognize and declare that:
"4. ... the delimitation of the continental shelf in the North Sea
between the Parties is a matter which has to lx settled by agreement.
This agreement should apportiona just and equitablc share to cach of the
Parties in the Hght of al1factors relevant in this respect." (Reply, p. 435,
sripro).
Now, first of al], it an esiablished fact that neithcr the Federal Republic
and Benmark, nor the Federal RepubYicand the Netherlands, have been able
to reach agreement on the delimitation, since both pairs of States are in dis-
agreement on the basis for such agreement.
Consequently thc dispute could oniy be settled by the Court indicating on
what basis the boundary lines must be drawn.408 NORTH SEA CONTINENTAL SHELF
Apparently the Federal Republic requests the Court to declare that this
basis is: "apportjoning a just and equitable share to the Federal Rcpubliç of
Gerrnany, Denmark and the Netherlands in the light of al1 factors relevant
in this respect."
Clearly, as already pointed out jnthe Introduction, such a declaration of
the Court would be absolutcly useless for the settlement of the boundary
disputes between the Federal Republic and Denmark on the one hand, and
the Federal Republic and the Netherlands on the other hand. It would be a
thinly disguised non Iiqtreunless ir werc accompanied by a statement why,
where and to what preciseextent the equidistance lines should bc deviated
from in the detemination of the boundav Iines.
SectionTIR.The Alleged Standardof "the Coastal Front"
25. In its submissions in Part 11of the Reply the Federal Republic does not
indicate why, where and to what precise extent the equidistance lineç should
be deviated from or displaced in the detcrmination of the boundary Iinesof the
continental shclves appertaining to Denmark, the Federal Republic and the
Netherlands respmtively.
By failing to do so, andby introducjng instead the notion of "proportionali-
ty" of the surface ofthecontinental shelf appertaining toa State, to the length
of what is called "the coastal front" of that State, the Federal Republic once
again rnoves out of the realm of existing rules and principles of international
Iawinto the field of arbitraryconstructions.
As dernonstrated earlier inthe present Rejoinder there isno rule or principle
of international law requiring the application of any standard of "equitable-
ness"to the rcsult, in terrns of total surface, of the drawing of boundary lines.
Indeed the Federal Republic inifs submissions carefullyrefrains from in-
dicating what, in itsopinion, would be the content ofsuch a "standard ofequi-
tableness". In the Reply iisclfhowever, the Federal Republic maintains that
"the breadth of the coastal front of each State is the only appropriate standard
by which to determine the eq~iitablenessof the apportionment effected bythe
proposed boundary" (para. 97 of the Reply) (italics added).
Now-lcaving aside the fact, that the notion of "proportional shares" is
wholly alien to the rules and principles of international law relating to bound-
aries-the concept of "coastal front" isacornpletelynovelinvention in the field
of rnaritimelaw. As pointed out in paragraph 17 of the present Rejoinder, the
existingrules and principles of international law relating to the delimitation of
sea areas are based on the concept of continuation of the land territory of a
State intothe sca. Obviously,thjs continuation starts fromthe actual coastline.
Accordingiy, asconfirmed in Article 3 of the Geneva Convention on the Ter-
ritorial. Sea and the Contiguous Zone, the normal baselinefor deiermining the
extent of seaareas is the low-water line along the CoastIn particular localities
and undcr certain conditions straight baselines may be drawn with the effect
of movingseawards the outer Iimitsof the seaareas involved.But this "straight-
ening-out" ofthe baseline shalI not resuIt in a Iine which bears no relation at
al1to the actual Iow-waterline and the land-domain bhind it (cf. Art. 4 of the
Geneva Convention on the Territorial Sea}.
Ncither in the Geneva Conventions and the travaux prkparaioiresnor in the
practice of States can any tracek found of the concept of a "coastal front",
the length or breadth of which would determine the extent in space of the
rights ofa coastalState. Apart from the dcscription in the Reply, paragraph 94,
of the Borkum-Sylt line the Federal Republic of Germany has not in somany
words described the so-called "coastaI fronts" of the States involved in this COMMONREJOINDEROF DENMARKAND THE NETHERLANDS 469
dispute. And although the Federal Republic has in the Mernorial and the
Reply-not counting what is contained in the Annexes-presented no les shan
26 charts and diagrams, no graphic description of the "coastal frontsw-a
concept to which the Federal Republic attaches the utmost importance-has
been given. Inthese circumstances the two Govcrnments feeljustifieciin trying
to show infigure A(on p. 470, infra)what the "coastal fronts" of the three States
appear to be asFar as this concept can be deduced£romthe text of the Memorial
and the Reply and from some abstract diagrams presented in the Reply. A
simple glane at this figure is suficient to show that the concept of "coastal
front" has no basis whatever either in geography ot in law.
In paragraph 97 of the Reply, it is stated that "the Fcderal Republic main-
tains that not the distance from some single point on the coast but rather the
breadth of the coastal front of each Stateis the only appropriate standard by
which to detemine the equitableness of the apportionment effected by the
proposed boundary" (italics added).
In itself the statement just citeisremarkable in the sense that it compares
criteria of an essentially different kind. Whereas the equidistance principor
method i~meant to determinethe boundaries of an area everysi~lepoirit wi~hin
whichis nearer to the coastline (i.e., obviously a poion the coastline) ofone
State than to the coastlin~[i.e., obviousnny point on the coastlin~of anorher
State, in other words,the locafionof the lirnitsof the arca, the allegcd criterion
or standard of"the breadth ofthe coastalfront" (at other placesinthe Memorial
and in !heReply also called"coastal frontage") isa criterion for the distribution
of the tucolsurfme of the area exprcssed in a number of square miles or kilo-
metres, the shares Io be proportionate to the length or breadth ofan artificial
line representing "the general direction of the coast".
Now, one simply cannot compare a criterion for the location of the limits of
an area with a criterion for the size of the shares of the total surface cifan area.
As already remarked before, the only criterion compatible with the concept
of the continuation of the land territory isa criterion based on the location of the
actual coastline.
Criteria of total surface are irrelevant within rhe context of the continuation
of land territory. Equally irrelevant for the concept of continuation is the
length or breadth of an artifîcialine representing "the general direction of the
coast", quite apart from the fact that in rnany cases the total coastline OCa
particular State simply does not have one "general direction". It should also
be noted that even if, in the abstract, ii may for some purpose make sense to
reduce and simplify a particular actual liiie to onc or a serics of straight lines,
caIled "the gerieraldirt.cclotof the actual line, the [eng~hf suchan ariificial
line has no reiationship whatever with the length of thactual line or withany
other reality.
Ti is therefore confusing to compare "the distanoe from some single point
on the coast" to "the breadth of the coastal front". This wayof presenration
seems to suggest that points on the wastline which deviate considerably from
the "gcneral direction" of the coastline should ixleft out of accountin deter-
rnining the equidistance line. However,this suggestionis not borne out by the
remainder of the sentence just quoted. In the remainder of the statement ilis
nul the direction,but thc lei~grhof the artificial Iine called "coastal frontage"
which is considered the only appropriate standard by which to determine the
total surface-not the location of the lirnits-of the continental shelf to be
allotted toa given State.Figure A COMMONREJOINDEROF DENMARK AND THE N~RLANDS 471
SectionIV. The So-Calied "Sector-Thmry"
27. The attempt of the Federal Republic to get away from the necessity of
indiçating preciselywhy, whereand to what extent the equidistance linesshould
ix deviated from in the determination of the boundary lines on the continental
shelf culminates in the construction of the Noreh Sea area as a "roughly cir-
cular" area, to be divided in "sectorsIn this constmction any and every con-
nection with the realities of the situation-thactual location of the coastlines
and the form of the North Sea-is completely thrown overboard.
Jt is significantthat onlythrough such a construction canlink be established
between the location of the limits in the area, the total surface of that area and
the length of the imaginary coastline.
Jndeed if an interna1 seaarea is perfectly circular, that is if there is no land
within that circle and no sea outside that circle, lines could be drawn from the
centre ofthat sea area to the frontier points on the coastline, whichlines could
then be taken as the dividing lines on the-equally circular-sea-kd. Jf the
whole sea-bed is continentak shelf or if the configuration of the continental
shelfissuch that ils nateira1outer lirnit (the 200 metres isobath] runs exactly
paralleto the coastline, the result would thbe that for each coastal State the
total surface of the continental shelf appertaininto it would k exactly pro-
portionale to the length of its coastline as it would beexactly propcirtionate Co
the length of the straight line connecting its froniier points. At the same tirne
the boundary lines thus dram would be exact equidistance lines!
In other words,insuchan imagiriarysituation the result is tsame whether
the boundary lines are drawn taking as a starting-point the land territory
and its continuation into the sea from the actual coastline, or whether one
shares out the sea area, taking asa starting-point the "middle" of that sea
area.
Inany acttrasituation, however, and in particular in the case of the North
Sea, the choice of a point "in the middlof the sea9*,as wellas the drawing of
boundary linesfrom such point to the frontier points on the actual c~astlines,
would be pureIy nrbitrary even in the sharing out approachadopted br the
Federal Republic. There js simply no escape from the fact that any test of
"equitableness" in terms of total surface of an area cannot determine the
location of thelincsdclimiting thatarea.
28. In its Reply the Federal Republic states (para92):
"The Federal Republic has not attempted to regard the North Sea as a
casewhere the delimitation of the continental shelf between the adjacent
States could be effcctcd by application of the sectoral division purand
simple; it has considered the construction of sectors as a 'standard of
eilaluafionby whichato judge whether a certain boundary delimitation, in
particularby the piinçiple of equidistance, could be regarded as equitable
under the circumstances of the case." (Ttaliadded.)
But how could the rnnfhematicad fact that ia perfectly circular intemal sea
the drawing of boundaq lines according to the equidistance principle results in
sectors, the surface of which is proportional to the lençth of the coastline,
provide any standard of evaluation in law for the drawing of boundwy lines
in sea areas of a cornpletely different shape, which are not fully surrounded
by land, wherethe configuration ofthe coastlines ifarfrom circular, and where
the length ofeaçh coastlinehas no relationship whatsoeverwith the length of an
arc ofcircleor straight linejoining its frontier points?472 NORTH SEA CONTINE~AL SHELF
Indeed, if the Federal Republic "has considered the construction of sectors"
only as a "standard ofevaluation" ofthe "equitableneçs" of the total surface of
the continental shelf which appertainç to the Federal Republic under the
principle ofequidistance, the whole so-called "sector theory" hasno indepen-
dent meaoing and boils down to a somewhat elaborate way of askingfor more.
29. On the ooter hand it appas from the statement in the RepIy, just
quoted, that the Federal Republic has givenug the-indeed untenable-claim,
put fonvard in paragrapb81 of its Mernorial, to the effectthat-
"in an apportionment of maritime areas which are surrounded by a
number of States, it would bean equitaMe principle of division for every
coastal Slate to receiva portion which extended fothe rniddo lethe sca"
(itaIicsadded).
Actually the Federal Republis-in paragraph93 of the Reply-recognizes
that "the circle line in figure21" (of the Mernorial) "may indeed have beena
little misleading .." and "might have been drawn with a different radius or
omitfed alrogether" (italicsadded). This admission rather underlines the purely
arbitrary character of both the so-called "sector theory" and the concept of
"coastal front" as appliedto theNorth Sea.
Ttis obviously always possiblete choosea point in the sea as representeon
a map, anddraw a circle having that point as its centre. But if the map faith-
fully represents the North Sea nosuch circle lincan be construed that bears
any relationship to the actual coastiines of the NorSea countries!
The Federal Republic's claim to "the middle of the seamindicated at least
one-be it fictitious-pointof theboundary line as it should run in the view
of the Federal Republic. Now that this claim is abandoned the thesis of the
Federal Republic iswduced to one reIatingto the total surface only of the con-
tinental shelfappertainimgto itAs such it does not, and could not, specify at
which point or points a deviation ftam the equidistance lines is considered
justified by the Federal RepubIicnor, afortiorw ih,at are the considerations
relating to those points, whicouldpossiblymiliratein favourof suchdeviation.
Section V. The FederalRepubiic's Concept of "Speciai Circumstances"
30. Contrariwise, Denmark and the Netherlands, whiIe admitting that the
rules and principles of international Iawprovidforthe possiblejustification of
a boundary line other than the equidistance line, maintain that there areno
special cjrcumstancesw, hich, in the relationship between the Federal Republic
and Denmark, or in the relationship betwen the Federal Republic and
the Netherlands, wouEdjustify a deviation from the equidistance line.
As amply demonstrated in the Counter-Mernorials and in the present Rejoin-
der, such "special circiimstances", in order to quahfyfor thc possiblejustifica-
tion of another boundary line, should relate to specificgeographic points and
the corresponding specificarea.
Thus, in particular withrespect to the application of the equidistance prin-
ciple in the delimitatioof nvers, lakes and territorial waters, deviation from
the exact equidistance lines is sometimes bwd on the consideration that at
specificpoints those equidistance lines would insuficiently take into account
the traditional use of a specific area crosscd by such equidistance line (cf.
"historic title" in ArT2 of the Geneva Convention on the TerritoriaSea).
Again, in the application of the equidistancc principle, there mighreasons
to a certain extenttodisregard particular points of the baselines of one State,
which-taking into account their position with respect to the baselines of the COMMONRWOINDER OF DENMARK AND THE NETHERLANDS 473
other State-deviate extremely from otherwise relevant points in their neigh-
bourhood on the baselinesof the former State. But these types of circurnstances
arefuridamen~ally dtfferenrfrom the type of circumstances which the Federal
Republic of Gesmany attempts to invoke in the present dispute.
The Federd Republic-in paragraph 82 of the Reply and at various other
places in the Mernorialand in the Reply-alleges:
"if geogaphicd circumstances bring about that an equidistance boundary
will have the effectto cause an unequitable apportionment of the con-
tinental shelf ktween the States adjacent to that continental shelf, such
circurnstancesare 'special'enough to justify another boundary line".
Now it is obvious that theboundaries, esiaMishedon land,arriveat acertain
point at the coastlinand that, from thereon, the equidistance boundary in the
seaarea isex kypathesi the result of "geographiml circumstances'',Le., of the
configuration of the coastline. If such configuration of the coastlwere to be
qualifiedas a "special circumstance" in any and everycasewherethe determina-
tion of boundary lines in the sea area by application of the equidistance prin-
ciple were said to resultin an "unequitable share" in the lotal surface of sea
axa, the connection betweenthe location of the boundary line inthe sea area
and the configuration of the coastline would be completelysevered.
In otherwords, and asalready remarkedbefore, itis logically impossible to
combine the idea of "equitable distribution" of the total surface oa sea area
with the ruleof determination of baundary lineswith rcferenceto the configura-
tion of the coast.The latter rule necessarilyrequires,for the possible justifica-
tion of adeviation from theequidistance line, that there is something "special"
inthe location of spocificpoints of the coastline.
As amply demonstrated in the Counter-Mernorials the FederalRepublic did
not-and, indeed, cannot-indicate any "special" point or points in the con-
&ration of the coastlinof the three States involved in the presentdispute
which could possiblyjustify a deviation from the equidistance lines. COMMONREJOLNDEROF DENMARK AND THE NETHERLANDS 474
Mernoriai interprets it, under nearal1circumstances, ismissing" (italics in the
original).
33. The submissions in the Counter-Memorials, however, are crystalclear
as to the substanceof the legal rule which the two Governments consider
should oblige the Federal Republic to acrept the p~incipleof equidistance with
regard tothe boundaries of itscontinental shelf. It is the legal rule cxpressed in
Article 6, paragraph 2, of the Continental Shelf Convention which, when ap-
plied to the circumstances of the present cases, lads logicallyto the result that
the Federal Republic is obligea to accept the determination of its boundaries
"by application of Ihe prinçiple ofequidisfancfrom the nearest points of the
baseIinesfrom which the breadth of the territorial sea of each Stateismeasured"
(italics added). Furthermore, the precise substance of the legal rule invoked by
the two Governments against the Federal Republic was repeatedly indicated
and underlined in their respectiveCounter-Memorials.
34. Nor js there any "necessary distinction" between the method of drawing
the boundary line according to the principle of equidistanand the ruleofIaw
invoked by the two Govemments against the Federal RepubIic. The supposed
"necessary distinction" is nothing but a dogma introdiiced by the Federal
Rcpublic in Par tI, Chapter11,of the Mernorial. Assertinginthe opening para-
graphof that Chapter thatthe principleofequidistance was adopted in Article 6
of the Continental SheIfConvention and in Article 12of the Territorial Seaand
Contiguous Zone Convention as a rnethodfor drawing maritime boundaries,
the Federal Repuhlic thereafter tenaciously referred to the principle of equi-
distance asthe "equidistance method" oras a mere "techniquefor the drawing
of maritime boundaries" (para. 46). But that isnot how the matter appears
either in its substance or in the work of the InternatioLaw Commission or
in the Continental Shelf Convention itself.
The delimitation of maritime boundaries between either "opposite" Or
"adjacent" States raises botha problern of the principle bywhichtodetermine
the course of the boundary and aproblem of the mefhodby which, the principle
king settled, the course of the boundary is actually to be delimited. It is one
of the virtues of the equidistance principle that it provides the basis for the
solution of both problernsat one and the sametirne.It supplies firsfaprinciple
forthe delimitation of the maritime areas in question, namely the principle that
areas nearer to one State than to any other State are to be presumed to fall
within its boundaries rather than within those of a more distant State; andat
the same time a practical geornetrical method for defining the boundary in
accordance with the principle, namely the construction of aline the pointsof
which are at equal:distance from the nearest points of the respectiveçoastlines
of the twoStates.
This double character of the equidistance criterion as botha principle and
amedhodis shown in the rwommendation of the Cornmittee of Experts in their
Repart of 18May 1953(Danish Courtter-Mernorial, Annex 12 A and Nether-
landsCounter-Mernorial, Annex 7):
"After thoroughly discussing different methods the Cornmittee decideci
that the (lateral) boundary through the territorial sea-if not already
fixedotherwise-should be drawn according to theprînc@le ofequidistance
from the respectivecoastlines." (Italics added,)
If the Cornmitteeasa body of technicians,mayhave approaçhed the problern
ptimarily from the pointofviewof "methods", itisclear that they at the same
time recognized itscharacteras a "principle". Not oniy did theyspeak ofitas476 NORTH SEA CONTINENTAL SHELP
l
such but they occupied themselveswith the question whether or notit would in I
al1casesgive an eguitable result.
In the Commission itselfthe SpeciaIRapporteur (M. François) at once trans-
lated the recommendation of the Experts into provisions which manifestly
expressed the equidistance criterionas aprincij7leand asa Iegalrule:
"2. Where the same continental shelf is contiguous to the territories
of two adjacent States, the boundary ofthe continental shelf appertaining
to each Siate should be drawn according to the principle of eqtridistance
from the respectivecoastlines of the adjacent States.
3. If the parties cannot agree on how the lines areto be drawn in ac-
cordatice wifh fhe princigles set forth in the preceding paragraphs, the
dispute shdl be submitted to arbitration1."(Ttalicsadded.)
Inthe subsequent proceedings in the Commission itwas in the character of
a principIe and legal rule that the equidistance criterion was discussed, not of
a mere "rnethod" or "technique". Nor can itbe seriouslyquestion4 that it was
in the character ofaprinciple and rule of Iawas wellas of a inethodof delimi-
tation that the equidistance criterionwas embodied in the Continental Shelf
Convention at Geneva in 1958.
35. Curiouslyenough, the Federal Republic seernsitself in paragraph 36 of
the Reply to have admitted the duaI character of the equidistance criterion as
both a "principle" and a "rnethod". Riding its hobby horse of an alleged
fundamental djfference betwaen median lines between "opposite" States and
equidistance lines between "adjacent" States, it there said:
"However persistently the Counter-Memorial may refuse to admit it,
there can beno doubt that ~hefuric~ioonf maritïme boundariesis not a mere
'delimitation'of the inarifin~earea each Store controls, but also, nul
primarily, nnequitablepartition ofthe maritime area berween the States
conceraed."(ItaIics added.)
Even if this proposition could be assunied to be true, it seerns pertinent to
ask the Federal Republic whether the 63 States, ineludir~fheFederalRepublic
itseK which voted in favour of the text of Article 6 of the Continental Shelf
Convention at Geneva arenotto be presumed to have adopted the equidistance
criterion in paragraph 2 not as a mere mefhodof delimitation but "also iynot
primarily", as "an eqiciiablepnriitioof the rnaritittte area beiweeit the States
conccrned" (italics added).
In any event it isclearthat any partition of maritime areas cannot be com-
pletely detached from al1 the accepted principles governing delimitation of
maritime areas,as the Federal Government maintains.
36. In short, the Federal Republic's attempt to separate the equidistance
criterion as a princkle of delimitation from the equidistance criterion as a
mefhodofdelimitationjs cornpletelyunjustjfiedinthe context of the Continental
Shelf Convention. The alleged "necessary distinction" is clearly non-existent
andcannot serve the Federal Republic's purpose of trying to undermine the
status of the equidistance principas a generallyrecognized rule of law for the
deIimitation of continental shelf boundaries as betweenadjacent States.
37. Chapter IIof the RepIy further containsa generalattack on the subrnjs-
sipnsof the Danish and Netherlands Govmments conceming the prjnciples and
mles of internationalIaw appIicable to the dclimiiationofthe boundaries now
YeaearboookftheI.L.C., 1453, ol. 1, para37,p. 106. COMMUNREJOINDEROF DENMARK AND THE NETHERLANDS 477
in question. This attaçk takes the fora seriesof related, if disjoinary-
rnents which the two Governments propose to examine under two main hm&:
(1) the status of the equidistance-special circumstances ruasa generally
recognized rule of internationallaw; and (2) the position of the Federal
Republic of Germany in relation to that rule.
Section11.The Statusof theEquidistance-SpecialCircumstancesRule asa
genemlly RecognizedRuleof International Law
A. THEARGUMENT O F THE DANISH AND NETHERLAN GOSVERNMENTS
38.In Chapter II of the Reyly,as in the Mernorial, the arguments of the
Federal Republic are in some measurernisdirectebecause it persists in repre-
senting thatthe kgal ruIe invoked by the two Governmentisthe "equidistance
'
li~ie"pure and simple whereas iis,of course, the application of the "equi-
distance princele unlessanofherboundar iyjusr$ed by speciacircumsfunceY"'
In paragraph 21 it further distorts the legal position takup by the two
Governments in their Counter-Mernorials by asserting:
"The Counter-Mernorial regards the equidistance Iine as the 'general
rule' for al1sorts of maritime boundaries (Dan. C.-M., paras. 61, 84-90,
115; Neth. Ç.-M., paras. 55, 78-8109) as if it had the same legd validity
for al1 situations, irrespective of whether the boundary line hato be
drawn betwcenadjacent or opposite coasts, whether theywere boundarjes
in Straits, in waters near the Corsin the wider regions of the open sea,
or whether the delimitationwas made for the purposes of custom and
fishery control or for the division of subrnarine resources. By treating the
existing maritime boundaries aljke the specificfactors relevant to the ap-
plicability the equidistance line for delirniting continental shelf bound-
aies rnight be disregarded."
Thc paragraphs in the Counter-Mernorials mentioned by the Federal
Republic in no way bear out the assertion, by whichthe Federal Repuseems
to suggest to the Court that in their Counier-MemoriaIs the two Governments
have invoked the equidistance principleas a general rule of customary law
governingthe delimitation of nll maritime boundaries bjndingsiichupon the
Federal Republic.
If that is the meaningthe assertionit ian inadmissiblepresentationofthe
argumeiits of the two Govcrnments in their Counter-Memorials, where they
expressly stated: Tt is nat here a question of establishthe "equidistance
prjnciple" as a principle universally binding in boundary delimitation.
39. The arguments, rneticulouslydevelopedstep by step in Chapterof Part
II of the Counter-Memorials, may be summarized asfoilows.
In the State practice prior to the definitiveestablishment of the coastal State's
rights in the continental shelf at the Geneva Conference of 1958 the tendency
was to refcr in general terms to the delimitation of continental shelf boundaries
on "equitable principles". But the conccpiaodelimitation on equitable prin-
cipleswas afterwards converted, through the work of the International Law
Commission and through the Geneva Conference into the rules set out in
Article 6 of the Continental SheConvention which accept the equidistance-
special circumatances principforthe delimitation of continental shelf bound-
ariesas a rule of law (Danish Counter-Memonal, para. 61; Netherlands
Caunter-Memorial, para. 55).This development took place between 1951and
1958through the work of the Cornmitteeof Experts and the International Law
Commission and through the endorsement of their views ai the Geneva478 NORTH SEA CONTINENTAL SHELF
Conference (Danish Courater-Mernorial, paras. 63-71 and 75-79; NetherIands
Counter-Mernorial, paras. 57-45 and 69-73).
Thughout the period during which the codification and progressive
development of the law of the seawasunder consideration by the International
Law Commission the whole doctrine of the coastal State's rightsover thcon-
tinental shelfwasstiIlin course of formation. The iiniIateral claims which had
been made by individual States varied in their natura end extent; and many
coastal States, încluding all the Parties tothe present disputes, had not yet
promulgated any claims, although Denmark had made her position clear
(Danish Counter-Memorial, paras, 12 and 13).The work of the Commission
and of Gouernments in theu repliesto theCammission both klped to consoli-
date the doctrine in international law and to çlarify 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 the nature and extent of the legal
rightrof coastal Statesover the continental shelf. Thus,just as the work of the
Commission and the contribution to the work made by governments were
important factors in deveIoping a consensus as to the acceptability of the
doctrine, so also werethey important factors indeveloping a consensu assto
the acceptance of the equidistance-special circumstances principle as the
general rule for the delimitation of continental sheIf boundaries (Danish
Counter-Mernoriai, para. 72; Netherlands Counier-Mernorial, para. 66).
The equidistance-specid circurnstanoesrule wasembodied in the Continental
Shelf Convention at Geneva by analmost unanimous vote. Furthermore, the
equidistance principle which is its basisstifat+frorn king a novelty in 1958,
was a principle which atready had wide roots in the Statepractice concerning
sea and fresh-water boundaries. State practice, as demonstrated in an Annexto
the Counter-Mernorials (Danish Annex 13; Netherlands Annex 151,showed
Shat in 1958there already existed a very considerable number of examplesof
recourse to the equidistance principlor same variant ofit for the delimitation
of differentkinds of seaand fresh-water boundaries. In short, the rules for the
delimitation of continental shelf boundaries embodied in Article 6 ofthe Con-
vention were an expression of n principlealready hown and accepied in State
prricticeinrelnfionto maritimehoundaries and were #lausirzfulharmony with the
exisrit~gpracficeand concepis of mcnritime internationallaw (Danish Counter-
Mernorial, paras8 .4-90; Netherlands Counier-Mernorial, paras. 75-84).
State practice since the Geneva Conference, by the numerous ratifications of
the GencvaConvention and bythe numerous delimitations of continental shelf
boundaries on the basis of the principles expressedin Article 6, amply confirms
that today those principles possess the status of the generally recognized rules
of international law appIicable to the delimitation of continenta1 shelf bound-
arjes. Thoseprinciples have &en applied not only by the States parties to the
Continental SheIfConvention butalso byStates, includingthe Federal Republic
which have not yet become parties. It iswith regard to the present boundaries
alone, and this only with reference to "thejr further course" beyond partial
boundaries already determined on the basis of the equidistance principle, that
an example of a State's resisting the normal application of the principIe of
Article 6 isto be found.
Finally, the pnnciples expressed in Article 6are Eullyconsonant with, and
even demanded by, the radio Iegisof the Continental Shelf Convention. Under
Articles 1 and 2 each wastal State isrecognized to posscss ipsojure sovereign
rights ofexploration and exploitation ouer the sea-bed and subsoil of the sub-
marine areas adjacent to its coasts. Inherent in this concept is the principle
that areas nearer to one State than to any other State ato be presumed to fa11 COMMONRWOINDER OF DENMARK AND THE NETHERLANDS 479
1
within its boundaries rather than within those oamore distant State; and the
applicationof this principle isrealized aydelimitationin accordance with the
equidistance principlc (Danish Counter-Mernorial, para. 115; Netherlands
1 Counter-Mernorial, para. 109).
40. Such, in outline, is the case presented by the two Governments intheir
respective Counter-Mernorials regarding the status of the principles çontained
in Article 6 of the Convention as the generally recognizedrule today for the
delimitaiion of continental shelf boundaries. They have not asked the Court
to decide that the equidistance principle or evcn the equidistancespecial
circurnstances principleia general rule of customary law governing the delimi-
tation of al!forms of maritime boundaries, Impressivethough the evidencemay
be in favour OF the equidistance principle asa norrn for the;delimitation of
maritimeboundaries, the Court is here concerned with a narrower question-
the question of the principles andrulesof international law applicable to the
delimitation of the boundaries of the areas of continental shelf appertaining to
coastal States. What the two Govcrnments have asked the Court to decide is
that the rapid development and general recognition of the coastd State's righrs
in the exploration and exploitation of the continental shelf adjacent to its
coasts has beenattended by a parallel development and general recognition of
the equidistance-special circurnstances principle as the general nile, in the
absence of agreement, for the delimitation ofb~undariesbetween the areas of
continental shelfappertaining to differentcoastal States;and that this principle,
being an integral part of the lanow generallyrecognized as the law governing
the continental shelf, is binding upon any c~astal State which claims areas of
continental shelfas appertaining to it under that law, whether under thCon-
tinental Shelf Convention itself or under a cnstomary right recognized and
defined in that Convention.
41.ln attempting to undermine the above arguments the Fedecal Republic,
as alrcady indicated, makes considerable play with its supposed "necessary
distinction" betweenequidistance as a mefhodCora boundary and asa principle
prescribing the application of this rnethod. The spurious charactof thisso-
called "necessary distinction" hasbeenpointed out above (para. 36): thequi-
distance criterion is at onaernethodof limitation and a pritxciplof division,
namelyequality of distance from the ncarest points of the respectivecoasts of
the States conoemed, In the Reply, however, as in the Mernorial, the Fedcral
Republic places its main emphasis on a further distinction: a supposed difler-
enceinthe validityoftheeqwidistancccriterion as a principleforthe delimitation
of a boundary between "opposite" Statesand between "adjacent" StatesHere
itsobjectivesappear to be four-fald: (todiminish the significanceof the State
practice addiiced bythe two Governrnents as showing the wide recourse tothe
equidistance principle in delimiting sea and fsesh-water boundaries; (2) to
provide a plausible reason for questioning the general applicability of the equi-
distance principlas between "adjacent" States, i.e., of tlie provisions in para-
graph 2 of Article of the Convention; (3)to provide a plausible reason for its
acceptance of the use of the equidistance principle in the delimitation of
al1other continental shelf boundaries in the North Seabut not its own; and
(4) to providea plausible reason for its acceptance of the equidistance prin-
ciple in the delimitatioof its own continental shelf boundary in the Baltic
Sea.480 NORTH SU CONTINENTAL SHELF
42. The preoccupations of the Federal ~epdblic concerning these rnatters
are easily understood. The Federal Rcpublic has taken the position before the
Court that there is anly ane-very broad-principle which is binding as law
upon all North Sea States, including itself, in the delimitation of their con-
tinental shelf boundaries: the principle that "eachçoastalState is entitledtoa
just and equitable sharel". This so-called principle oflaw,as has already been
pointed out and is indeed evident from its mere formulation, lacks any objective
criteriaor standards for its application. Accordingly, the Federal Republic is
apprehensive that, even il the Court were CO admit that entirely vague formula
as an applicable principle of law for the purposes of the presencase, ifniight
very wll tki~tkit Iogical, on [liebcisisof thepririciplesstatiriArticle6 ofthe
Conventiori,of fhe deliwiitaiionof nurnerouscoiiiipie~rshev boundaries it~con-
formity with those principles and ofthe wide use of the equidistanceprinciple
in the o'EIimirafioof olhersen andjresh-water boundaries,still to laydown thar
ivrbhecontext ofmaritime areas a jus8and cqlrifablesliare istkai whichresults
fromthe applicatiorr of the equidistanceprinciple unlessirisafirrnalivelyestob-
lishedchar ano~fierboundaryisjustiJiedby specialcircumsf~nces.Tnother words,
the Court might very well find in the numerous precedents of the use of thc
equidistance principle inState practice the objectivecriteria and standards oa
"just and equitable" delimitation which the Federal Republic's very broad
formula so evidently lacks.
43, The Federal Republic, it would seem, had made up its mind that, having
regard to the extensive acceptanceof median Iinesin State practice, including
its own acceptance of median liirdelimitations of the continental shclf in the
North Sea and the Baltic, the Court is almost certain to concludt that rnedian
line delimitation-equidisdtea lmcitation between "opposite" States-is
today generalIyrecognizedas the legallyappropriate expression and application
of the concept oFa ''justand equitable share" for maritime areas in the absence
of special circurnstances. For this reason it has ,sought in its Mernorial and
Reply to make a sharp distinction betweenthe use of the equidistance principle ,
-in itsmedian line form-for delimitation of boundaries between "opposite"
States and its use-io its lateral Iine form-for delimitation of boundaries be-
tween "adjacent" States. But for this distinction no hasis is to be found in
State practice.
44. In seeking, as it dms in paragraph Zt of the Reply, tu drive a wedge
between "median line" boundaries for "opposit~" States and "equidistance
line" boundaries for adjacent States the Federal 'RepubIic has the narrowest
limits within which to manauw. It finds itself gravely ernbarrassedby the
fact that neither the TerritoriaSea and Contiguous Zone Convention aor the
Continental Shelf Convention itself makes the slightest difference ktween the
&O types of case. The argument by which it attempts to escape From this em-
barrassing fact appears to the two Governments to be wholIyartificialand un-
convincing.
Aftcr accusing-quite gratuitously-the two Governments of treating al1
maritime boundaries alike, the Federal RepubIic proceeds in paragraph21 te
argue as Follows:
"By trcating the existing maritime boundaries alike the specific factors
relevant to the applicability of the equidistance line for delimiting con-
tinentalshelf boundaries might be disregarded. This is in contradiction
not only tu the practice of States but also to the wording of the Geneva
lReply, Submission 1. COMMON REJOINDEROF DENMARK AND THE NETHERLANDS 481
Conventions on thc Law of the Sea. 1tdoes not seem necessary to repeat
al1 what has been said in this respect in the Memorial of the Federal
Republic of Cermany ;it rnaysufficeto ask whyArticle6 of the Continental
Shelf Convention put the mles on boundaries between adjacent and op-
posite coasts in different paragraphs and why the impact of 'special
circumstances' is treated differently in Article 5 of the Continental Shelf
Convention from Article 12 of the Convention on the Territorial Sea
(see Mernorial, para. 64, p. 62, supra) witnot from the conviction that
special factors had to be taken inaccouni in each of these distinsitua-
tions. If we examine the report of the Committee of Experts, which played
sucha great role in iniroducing the equidistance line intoGenevaCon-
ventions (see the textreproduced in Annex 17of the Danish Counter-
Mernorial,pp. 249-258,srrpraand in Annex 7 of the Netherlands Counter-
Memorial, pp.377,supra),weseehow differentlythe Committee treatthese
situations. Whilefor the delimitation of territorial waters betweenopp~site
coasts the median line wasadopted as a matter of course, for the delimita-
tion betweenterritorial waters two adjacent States therewasa thorough
disciission on various methods proposed, until the equidistance line was
adopted in the end with the reservation that anurnberof cases rhis rnay
not lead to an equitable solution, which should be then arrived at by ne-
gotiation' (ibid..,p.and8p. 377,supra, respectivcly).was thought bythe
experts that these proposals might also be used for the delimitation of the
continental shelf, which question, however, semaincd outside the tems of
reference of the Committee. Therefore, the material submitted by the
Counter-Mernorial in support of the equidistance line does nat always
carry the same weight, dopending on the situation where the median or
equidistance line had been used."
Thesearguments, on which thc Federai Republic seerns primarily ta rest its
attempt to undermine the legalsignificanceof thc provisions of ttwo Gencva
Conventions and the other Statc practice applying the equidistance principle,
will now be exarnined in turn.
45. That the Federal Republic should pose the question why Article 6 of
theContiiiental ShelfConvention puts the rules for "opposite" and "adjacent"
States in different paragraphs is surprising. By doiso it at once invites at-
tention to anotherand more pertinent question why the rules statedfor "op-
posite" and "adjacent" States in those two paragraphs shouldbe pmisely the
same.
The answcr to the Federal Rcpublic's question seemsto be clear enough and
hardly to justify the conclusions which the Federal Republic desires to squeeze
out of the question. The explmation lies in the drafting history of wisnow
Article 6 of the Convention and was iargely given by the Special Rapporteur
of the Internationa! Law Commission himself when, at its 20lst Meeting, he
introduced the firstdraft OFthe text which has becomeArticle 6 (then Article 7).
That draft, Iike the present article, dealt with the caseof "opposite" and
"adjacent" States in different paragraphs, providing for the application of
the equidistance principle in both cases but specifically designatingastthe
"median" linein.thefirstcase.Explaining his newdraft, the SpecialRapporteur
(M. François) said (Yearboo ok~he Commission, 1953, Vol.1,p. 105):
"The Commission would remember that article 7, asadopted at the
third session, contained no directives about the delimitation ofthc con-
tinental shelf, on which therwas no rule of law that couldbe applicd by
a tribunal. The comment, by referring to median lines, did give some482 NORTH SEA CONTINENTAL SHELF
guidance in the matter to States whose coasdswere opposite to each other,
but gave none to adjacent States, because fhe Cominissioti had nu1 yel
reached any decisionon the dcllttiitationthe ferriforiaseu ofsuch Sfafes.
In the absence of any rules of law, the Commission had decided that
disputes on the delimitationof the continental sheIf should be submitted
to strbitratiex aequo etboizo.In viewofthe objections raised bynumerous
governrnents ta that proposal, however, he had suggested inhis fourth
report that disputes should be submitted to conciliation procedurc. But
since the completion of the fourth report, the conclusions of the Com-
mittee of Experthsad becorneavailable and had prompted hirn ta prepare
a new text for articl7." (Italicsadded.)
I
These observations of the SpecialRapporteur makeit plain that the Çomniis-
sion had corne to separate cases of "adjacent" States from cases of "opposite"
States largely because in rheformer cases ihe bouridarymmus ie Iinked to the
lalerai boundary dividiiithe ierritoriol seaO/ adjacent Siafes and it had not
yet reached any conclusion in regard to the territorial sea boundary. This
purely technical factor made it perfectly naturai that the Special Rapporteur
also should frame his draft in two paragraphs stating the rule separately for
"opposite" and "adjacent" States. There is no trace whaiever either in the
Special Rapporteur's draft article or in his explanatianto the Commission of
any inherent differencebetween the cases of "opposite" and "adjacent" States
which mightrender the equidistanceprincipleeither lesssuitableor lessgenerally
applicable for ihe delimitation of boundaries between "adjacent" States than
ktween "opposite" States.
In the Commission itselfthe main focus of the discussion was the question
whether the equidistance principle should be qualified by making provision
for "special circumstances" which might justify anothcr boundary line. This
question was discussed by the Commission ind~ferentlywiih reference to boih
"oppusite" and "adjacerit"Siafes; and the outcorne of the discussion was that
the Commission did add this qualifying provision in fIisaine terms to Borh
cases. SimiIarly, theGeneva Conference itself adopted the two paragraphs of
Article 6 of the Convention providirigiaCmost identicaltermsjor theapplicafion
of rhe eqriidisiairpririciplein boih iypeof cases1
In short-the iravarcrpdparatoires of Article 6 aiîord nowarrant whatever
for the fundamental differencesof substanoe and principle which the Federal
Republic seeh to establish between "median", equidistance Iines between
"opposite" States and "lateral" equidistance lines between "adjacent" States.
On the contrary, both the Commission and States at the Conference treated
the quidistance principle as equally suitable For both cases and applicable
to both cases under precisely the sawe conditions!
46. This being so, the Federal Republic, before trying to drive a wedge
between "median" and "lateral" equidistance lines for the purposes of irs
arguments should have asked itself the far more pertinent question: why did
the Commission and the Conference treat "opposite" and "adjacent" cases on
grecisely the same bais? This question, it is obvious, has the rnost serious
implications for the whoIeof the Federal Republic'scase.The Federal Republiç
has maintaincd in its pleadings that the only generally recognized principle
which is binding upon al1 States, including itself, is the principle that cach
coastal State is entjtled ta "just and equitable share". The Federal Republic
has Iikewise rnaintained in its Reply that "there can be no doubt that the
function of maritime boundaries is not a mere 'ddlirnitationof the maritime
area each State controls, but also, if not primarîly, an equitable partition of COMMON REJOINDER OF DENMARK AND D HE NETHERLANDS 483
the maritime area between the States concernedl". It has further conceded
expressly in its pleadings that, in nearly al1cases, at least, a "median" equi-
distance line constitutes a just and equitable delimitation between "opposite"
States. What then is the Court to think in regard to the action of the Com-
mission and of the Conferencc in prescribing the equidistance-special circum-
stances rule for both "opposite" and "adjacent" States? Did these two res-
ponsible bodies have in mind what is "just and equitable" and what would
constitute "an equitablepartition" when they were endorsing the equidistance-
special circumstances rule as the rule of delimitation for "opposite" States?
Presumably, the Federal Republic must think so; for the whole of its argument
favours that view. But if that be the case, is it really conceivable that those
responsible bodies were irresponsibly obliviousof what in law would be "just
and equitable" and constitute "an equitable partition" when they turned their
attention to the case of "adjacent" States?Or is the Court asked to think that
those two responsible bodies wereirresponsibly oblivious of these considera-
tions in both cases and onlyby good luckfailed to lay do~vnan inequitablerule
for "opposite" States in thefirst paragraph of Article 6?
However the matter is put, it is obvious that the position of thc Federal
Republic is highly delicate even on the basis of its own thesis of the "just and
equitable share". The concept of the codifying organ of the United Nations
and the concept of the international community of States at the Geneva
Conferenceas to the Iawto be applied in order to achieve a "just and equitable
share" and "equitable partition" is the equidistance-special circumstances
rule which is found in Article 6 of the Convention. The Federal Republic's
position under its own view of the law becomes al1the more delicate if it is
asked what was in the mind of the Federal Republic's owndelegation at the
Conference when it voted in favour of the whole of Article 6 without any
semblance of a differentiation between paragraph 1 and paragraph 2. 1s the
Court to understand that the Federal Republic's delegation voted for the
article despite a belief that the application of paragraph 2 would not achieve
a "just and equitable share" or an "equitable partition"? If so, there is no
indication of any such belief in the records of the Conference.
And if the truth bas it obviously is-that the International Law Com-
mission and the community of States at the Conference endorsed the equi-
distance-special circumstances rule because they conceived that in the cases
both of "opposite" and "adjacent" States this rule would achieve what in law
wouId be a "just and equitable share" and "an equitable partition", then the
two Governments arc, indeed, entitled to pose another question to the Federal
Republic: why should Denmark and why should the Netherlands not be
entitled to delimit their continental shelf boundaries on the basis of the
principles which the International Law Comn~ission and the delegates
at the Geneva Conference, including those of the Federal Republic, appear
to have accepted as the embodiment of what is "just and equitable" in this
regard?
47. Whatever may be the Federal Republic's answer to that pertinent
question, it is clear that the legislativehistory of Article 6 of the Convention,
in the Commission and in the Geneva Conference,is wholly incompatible with
the sharp cleavage which the Federal Republic seeks to establish between
"median" equidistance lines and "lateral" equidistance lines.
lReply,para. 36.484 NORTH SU\ CONTINENTAL SHELF
C. THE ROLE OF THE EQUIDISTANCE-SPEC CIIRCUMSTANCR ESLE IN THE
DELIMITATIO NF TERRITORIAS LEA AND CONTINENTA SHELFBOUNDARIES
1s INESSENC TEHE SAME
48. The Federal Republic iii the passage of its argument quoted above poses
another question: "why the impact of 'special circumstances' is treated dif-
ferently in Article 6 of the Continental ShelfConvention from Article 12of the
ConventionontheTemiroria1Sea(seeMemonal, para.64,p.62,supra),wereitnot
from the conviction that special factors had to be taken into account in each of
these distinct situatil".The object of this question seemsalso to be to drive
a wedge between "median" and "lateral" equidistance lines but this time in
regard to the role given to "special circumstances"; for the Federal Republic
does not in that passage pursue the question of the supposed differencein the
treatment of ''specialcircumstances" inthe two Conventions but rather claims
to find in the Territorial Sea Convention a marked difference between the
treatment of "special factors" in delimitations of the boundary as between
"opposite" and as between "adjacent" States.
49. Nevertheless, it is necessary to dwell brietly on the difFerencein the
formulation of Article12 of the Territorial Sea Convention and Article 6 of
the Continental Shelf Convention. In paragraph 64 of the Memorial the
Federal Republic asked the Court to conclude that the Geneva Conference
intended the equidistance lineto "have a far wider scope of application in the
delimitation of the territorial sea than of the continental sheif" because in the
Temtorial Sea Convention the "special circumstances" clauseis in the form-
"where it is necessary by reason of histonc title or other special circum-
stances to delimit the territorial seas of the two States in a waywhichisat
variance withthisprovision" (i.e.,theequidistance principle)(italicsadded)
whereas in the Continental ShelfConvention it is in the form-
"unless another boundary line isjustified byspecialcircurnsfarr(italics
added).
In fact there are two other clear differencesin the formularionof Article 12
of the Territorial Sea and Article 6 of the Continental Shelf Conventions: The
6rst is that in the former the cases of "opposite" and "adjacent" States are
covered by the sarneprovision in thesatneparagraplt,whereas in the latter they
are covered by virtuaiiy identical provisions inseparafeparagraphs.The second
is that in the former Convention the equidistance rule is expressed r~egafively
as a prohibition against extending the territorial sea beyond the median
(equidistance) line, whereas in the latter it is expressed as a positive direction
that the boundary shall be the median or equidistance line.
The two Governments dcalt with this matter of the different formulation of
the two articles in their Counter-Memorials, where they explained that this
was primarily due to the accidents of the drafting processes at the Geneva
Conference (Danish Counter-Mernorial, paras. 122-124;Netherlands Counter-
Memorial, paras. 116-118).The two articles were dealt with in different Com-
mittees (the First and Fourth Cornmittees) and, owing to the political dif-
ficulties surrounding the whole problem of the breadth of the territorial sea,
the question of the delimitation of the territorial sea was dealt with towards the
end of the Conference when Article 6 of the Continental Shelf Convention had
already been approved in the Plenary. The International Law Commission's
draft for the delimitation of the territorial sea boundaries betwccn "opposite"
and "adjacent" Stateshad been very similar to its draft for the delimitation of
l Reply, para21, COMMONREJOINDER OF DENMARK AND TWENETHERLANDS 485
the continental shelf boundaries.When,however, the draft for the territorial
seawas eventually taken up by tlie First Cornmittee, Nonvay pointed out that
the Commission's draft did not take account of the complication that the
States concemed in a delimitation might beclairningdifferentbreadihs for their
territorialseas.Norway further pointed out, as ind~ed did also the Federal
Republic, that some coastal Stateshad "'historic"claimsto aparticular breadth
of the territoriasea which might in certain cases entirle them to extend their
boundary beyond the equidistance Iine (OBcial Rccords, Vol. 111,pp. 187-188).
At the sametime,sayingthat the problemsregarding "opposite" and "adjacent"
States were "so closcly interrelatedasin some cases to be indistinguishable",
Norway proposed that the provisions dealing with these two types of cases
shauld be combined (ibid. Th. Norwegian proposais found favour with the
First Cornmittee and led toa recasting of the Commission'sdraft in anegative
form and asa single provisioncoverjng both types of cases;and thcy also lcd to
the inclusion ofan explicit referençe in Article 12 of the Territorial Con-
vention io a "histocic titleas a form of "specinl circumstance'hhich might
"necessitate" a departure from the equidistance rule.
50. The Federal Republic has not attempted in the Reply to challenge the
staiements of the two Governments in the Counter-Mernorials that-
"There isno indication in the records of the Conference that the dif-
ference in the formulation of the territorial sea and continentai shelf
provisions was due to anything else than the difficulty brought up by
Norway and the vjcissitudesof drafting in different Cornmittees l."
Tthas rnerelyreasserted jts contentionthatthe different formulations of the
relevant provisions in the two Conventions shows that the "impact of special
circumstances" is treated differentlyinthe two Conventions and has attributes
this to "special factors" found "in eachof those distinct situations".
Undoubtedly, as has just been explained, the Conference did have some
special factors in mind when it formulated Article 12 of thc Territorial Sea
Convention in differentIanguagcfrom that in which ithad forrnulated Article 6
of the Continental Shelf Convention. They were the possihility of territorial
seas'having dimerentbxeadth and the possibility of a State's having a historic
title ta particular breadth,But, apartfrom thesepoints, there is nQindication
in the records thatthe Conferericeconsidered that there would be any essential
difïcrcnccs in the impact of "special circumstances" in the delimitation of
territorial sea boundaries from their impact on the delimitation of continental
shelf boundaries. Indeed, the Conference seems, if anything, to have envisaged
that "special cisçumstances" might have a larger impact in the case of the
territorialseathan in that of the continental shtlf.Nor is it in the least sur-
ptising that the Conference should have vitwed the matter in that light, The
Federal Republic's statement in the Memorial (para. 64) that "the equidistance
line has a far usiderscopeof application in the delimitation of territorial waters
than in thc deliniitation of continental shelf areas"aipure ass~imptionwhich
lacks any ioundation not only in the records of the Conference but also in
Staie practice. Specialfactors are jusas likelytocorne into play in areas near
the shore than in more distant areas. mis can be seen,e-g.,in the U.S.S.R.-
Finland Treaty of 1965where the near-shore boundary reflects provisions of
earlier peace treaties between the two countrics (Danish Counter-Mernorial,
para. 102; Netherlands Counter-Mernorial, para. 96) and also in the recently
' Danish Counter-Mernorial, para. 123; Netherlands Counter-Mernorial,
para. 117. I
NORTH SEA CONTLNENTAL SHELF
signed Nuniray-Sweden Agreement of 24 July 1968for the delimitation of the
continental shelf boundary of these countries in the northern part of the
Skagerrak (see para. 54 below). In both these treaties it is in the near-shore
areas that specialfactorsoperate andin the openiseasthat fheequidisfanceline
plays itsfuii rule.
Here again the question posed bythe Federd Republic invites anuther and
more pertinent question: why djd the international Law Commission and the
Geneva Conference, despite any difierences which they may have perceived
between the situation of the territorial sea and that ofthe continental shelf,
Iay down essentially the same general rule for both situations and why did
they in each situation lay down the same general,ruleboth for "opposite" and
for "adjacent" States? Was it because they considered that this general rule,
the equidistançe-special circumstances rule,would resultin what in law would
be a 'Ljusand equitable" distribution? Or werethey ca~less of the justice and
eguity of the result? And, when the Federal Republic's own delegation voted
at the Conference in fnvour of this general rule for both situations and for
both types of cases,did it have regard to the "just and equitable" character
of the rule?In short, ifitbecomes a matter of p~singquestions, the questions
rnay once again prove very delicate for the Federal Republic under its own
thesis of the "just and equitable" shareas the one and only general rule.
51. Finaily,inthe abovequoted passage from the Reply thc Federal Repub-
lic callin aid thereport of the Cornmitteeof Experts in support of its conten-
tion that specialfactors distinguish territorial from continental shelf delimi-
tations and "opposite States" from "adjacent States" delimitations and that,
in consequence, "the material submitted by the Counter-Mernorials in support
of the equidistancelinedoes not alwayscasrythe sarneweight,depending on the
situation where the median or equidistance line had been used '". But the
deductions which the Fcderal Republic seeks to make from that report are
not justified. !
No doubt, the Federal Republic iscorrectup to a point in sayingthat"while
for the delimi.tation of territorial waters between opposite coasts the median
line was adoptedas a nlafter ofcourse, for the delimitation between territorial
waters of two adjacent States ~herewas a ihoroughdiscussionon variozrsmelhods
propo~ed, until theequjdistance line was adopted in the endwiththe reservation
that "in a number of cases rhismuy nat lead ru an equitabKesolution, whîcfi
shouldbe thenarriiredat by negorintion'"(italicsadded). Median lineboundaries
between "opposite" States were, in one connecticinor another, already farniliar
inState practice and had, in fact, already been tentatively recommended by
the C~rnrnission for the continental çhelf.On the other hand, as pointed out
in the Counter-Memorials, in most cases States had not found it noccssary to
conclude treaties or legislate about their lateral sea-boundaries wirh adjacent
States before the question of exploiting the mineral resources of the sea-bed
and subsoil amse and the practice was therefore sparse (Danish Counter-
Mernorial, para. 88; NetherIands counier-~emokial, para. 82). Accordingly,
it is not surprising that in the case of adjacent States the Cornmitteeof Experts
had a "thorough discussion on various rnethods proposed" before deciding to
recommendthe equidistance principle as the general rule. Indeed, the very
fact that the Cornmittee did thoroughly discuss other rnethods can only give
added significance to its adoption of the equidistance principle in its report
withouf rnentionirigany orberrule or method as an1 accepfable alfer~iativSut
Reply,para. 21. COMMONRFJOINDEROF DENMARK AND THE NETHERLANDS 487
in any case the Federal Republic's statement is misleading in relationto the
"imyacf ofspeciulcirczrmstanc~s".
52. The Federal Republic refers only to the Cornmittee's observation,
under Point VI1of its report dealing with {ateral boundaries, that ianurnkr
of cases the equidistance line may not lead to an equitable solution. But under
Point VI dealing with "opposite" States the Committee also rnentioned certain
"special reasons" which "may divert the boundary from the median Iine".
Feirihermore, the SpecialRapporteur of the Commission, who wus aIso Chair-
man of the Cotnmittee ofExpexfs, when it came to translating the Committee's
recommeridaiions into draft articles, proposed precisely the samc ruZe for
"opposite" and "adjacent" States not only for the continental shelf but also
for the territorial sea. And when the Commission introduced "special cir-
cumstances" as a specific exception to the mle, it did so in the same terfor
"opposite" and "adjacent" States and in connectjon both with the continental
shelf and the tcrritorial sea. Accordingly, the Federal Republic's attempt to
attribute particular significance to the above-mentioned observation of the
Committee of Experts seemsalzogetherunjustified.
As to the Federal Republic's further comment: "lt was thought by the
Experts that those proposais (concerning the tcrritorial sca) might nlso be
used for the delimitation of the continental shelf, which question, howevcr,
remained outside theterms of reference of the Cornmittee", it is not çlear what
this is meut to convey to the Court. The ierms of reference of the Committee
took the form of a questionnaire drawn up by the Special Rapporteur of the
International Law Commission under whose chairmanship, asjust stated, the
Cornmittee worked and drew up its report. True, the Committee's statement
that it "considered it important to end a formula for drawiny the international
boundaries in the territorial waters of States, which could also be used for the
deliinitationof the respective continental shelves of two States bordering the
same continental shelf '"was made as a "rernark"and not as an answer to a
specific question. But to speak of this remark as being "outside the terms of
reference of the Committee" is in the circumstances quite unreal. The solid
factis that the Committee of Experts did express this view and that the Com-
mission itself, in paragraph 83 of its report for 1953, also put On record its
opinion that in the case of adjacent Statesthe delimitation ofthe continental
shelf should be carried out "in accordance with the same principles as govern
the delimitation of the territorial waters between the two States in question"
(see Danish Çounter-Mernorial, para. 68; Netherlands Counter-Memorial,
para. 62).
53. Accordingly, the two Governments submit that the several arguments
discussed above, by which the Federal Republic has sought in its Reply to
minimize the significanceof the position given to the equidistance principlein
the International Law Commission, in the Geneva Conference and in the
practice of States are without any substance whatever. Thcy serve only to
underline the embarrassrnent which the Federal Republic feels when it finds
itself confronted by so clear and gencral an acceptance of the cquidistance-
special circurnstances rule within the international community.
Yearbookof ibeI.L.C.,1953,Vol.II,p. 79,seealso Danish Counter-Mernorial,
Annex 12 A and NetherlandsCounter-Mernorial,Annex 7.488 NDR~ SEA CONTINENTAL SHFLF
54. Thc Danish and Netherlands Governments set out certain State practice
in their Counter-Memorials, invoking this practice from Iwo points of view
(Danish Counter-Mernorial, paras. 84-112 and Annexes 13, 14 and 14 A;
Netherlands Counter-Mernorial, paras. 78-106and Annexes 13 A, 14, 14A and
15). First, they referred ta considerable number of precedents as showing
that the provisions of Article 6 of the Continental Shelf Convention adopted
aE Geneva in 1958were in harmony with the psinciplcs underlying the delimi-
tation of other types of maritime and fresh-water boundaries. From this
Statc practice they drew the conclusion that the equidisiance-special circum-
stanccsrule found in Article was nota new conceptand that, on the contrary,
it was an expression oa principle already known and accepted inState practice
in relation to maritime boundaries. Secondly, the two Governments invoked
a substantial body of prccedents in the period after the Geneva Conference
which relate specificallyto the delimitation of continental shelf boundaries and
which confirm the general acceptance today of the rules set out in Article 6 as
represcnting the modern law governing continental shelf boundaries. In
regard to these precedents thetwo Governments pointed out that al1the con-
tinental shelf boundaries, including those of the Federal Republic, so far
established in the North Sea as well as in the Balti-the two seas which
concern thc Federal Republiç-reflect the principle of Article 6 of the Geneva
Convention.
1. State Fractice inregard tu the DelimitarionofFreslt-Waier Boundariesand
Mariiime Bounduriesopartfrom Boundariesofthe CoririnentalShew
55. The Federal Republic, in seeking in the Reply to dispose of the SiaPe
practicerelating to boundaries other than continental shelfboundaries, advances
certain arguments of a general chasacter (paras. 34-39)and alsornakes certain
specificcriticisms of some of the individual precedents (Annex, Section B).
These speci6c criticisms are confincd to practicc concerning territorial sea
boundaries and it will be convenient to consider them first.
It was pointed out in the Counter-Mernorials that in 1947, when it was
necessaryto definethe territorial sea boundaries of the Free Territoryof Trieste
in Articles 4 and 22 oa major collective treaty, the ltalian Peace Treaty, the
States concerned significantlyfixed the boundaries of the Frae Temitory both
with Ttaly and with YugosIavia by application of the equidistance ptinciple.
The Federal Republic seeks to dispose of these precedents merely by saying
that, the Free Territory having ceased to exist, the provisions in question
are no longer in force. But the relevant pointisnot whether these provisions
are still in force; it is the evidence which thcy furnish of the understanding of
States concerning the principles to be applied under the international law
of today for delimiting territorial sea boundaries between adjacent States.
The fact that, owing to the disappearance of the Free Lcrritory, the provisions
are no longer in force in no way diminishes their value as evidence of the con-
victions of States onthis matter.Moreover, it seems clear, from the informa-
tion available, that the existing territorial sea-boundary between Italy and
Yugoslavia, which replaces the Peace Treaty boundaries, is also basedon the
equidistance principle.
The same observation applies to the Treaty between Norway and Finland
,of28April 1924defining the boundary betweentheir two States inthe Varanger-
flord. The fact that it isna Ionger in fordoes not alter its character as evi- COMMONRWOINDER OF DENMAKKAND THE NEWERLANDS 489
dence. The new boundary between Norway and the Soviet Union may not
followthe equidistance line in the samcway;but italso reflectsthe equidistance
principle.
Threc examples of reliance on the equidistance principlc the Federal Republic
seeks to dispose ofby the observation that thcy are unilaferaand caitnor can-
stitutea precedenrfor inter-State pracfice: the Mexico-Belice, Mexico-United
States and Tanzania-Kenya territorial sea boundaries. This observation seems
quite out of place sincethere is not the slightesr suggestion that the applica-
bilityof theequidistance principle was in any wayin disputeinany of the ihree
cases. Indeed, in the two first-named examples al1 the States concerned-
Mexico, the United Kingdom and the United States-were parties to the
TerritorialSea and Contiguous Zone Convention, Article 12of which provides
for the application of the equidistance-special circumstances rule. The thiré
cxamplea Proclamation of the Prcsident of Tanzania-is significantfor
Tanzania is not a party to the Convention and yet appears to haveconsidered
itnatural to applythe principlesof delimitationwhi~htheconvention prescribes.
As to another precedent, the Italo-Turkish Treaty of 1932 delimiting the
territoriasea boundary between Anatolia and the Esland of Castellorizo, the
Federal Republic comments that "this line contains only a few points of
equidistance connected by straight lines'". But it isnot uncornmon for two
States, in applying the equidistance principlto #grecfor mutual convenicnce
to sitripl~vthe line by joining straight tines between. The resulting boundary
neverthelessremains one based essentiallyon the application of the eqiiidistance
principle.
Two other precedents cited in the Counter-Mernorials as examples of the
equidistance principle, Treatiesof 1908 and 1925 delimiting United States-
Çanadian boundaries, are contested in the Reply on the basisof a "suggestion"
thai boundarics "running along the rniddle of two channels" are rather ex-
amples of a thalweg boundary. In facr,the term "channel" in these casesseerns
to refernot to the navigational channel but simply to tlie waters intervening
between the two shores, as in the expression "English Channel"; and the
principle of delimitationthus would appear to be essentially that of equidis-
tance.
56. The two Governments, inthe above-mentianed Annexesof their Counter-
Memorials, noted four precedcnfs in which methods othcr than the equidis-
tance line had been uscd for dctermining the territorial sea boundary. The
Federal Republic observes in this connection that "many others could bc
added". Certainly, some furtber prccedents of the same kind could beadduced,
more particularly from somewhat earlier tirnes, such as the Norwegian-
Swedish boundary which was the subject of the well-known Grisbadarna
arbitratioil.But it remairis true that the cquidistance-spccial circurnstances
rule, adopted by the lntcrnational Law Commission and by the Geneva Con-
ference for the delimitation both of the territorial sea and the continental shelf,
was by no means a new concept thouglit up by the Committce of Experts in
1953. On the contrary, it was a naturai evolution from an existing principle
of boundary dclimitation which had manifesteclitself often enough in the prac-
tice of States in the delimitation of various forof maritime and fresh-watcr
boundaries. Indeed, in paragraph 35 of the Reply the Federal Republic itself
concedes that "Obviozrslytheauahors of theCoir~DfentaSl Pie(fÇonve~itioii would
not have framed the rules on the delirnftotionof continnital sheIf boundaries
wifhoutrefaud to rhe experience made wfrIisuch rnethods in Store practiceand
Reply,Annex,Sec. B, 3.490 NORTH SEA CONTINENTAL SHELF
wouidnot havechosena mcfhodwhichthey hadizot consider~drhe mosr suitable
fur itspurpose" (italics added).
In the light of that statement in paragraph 35 of theRcply, itissomewhat
surprising to read in the very next paragraph:
"The weight of the practice on which the Counter-Meinorid relies, is
further reduced by the fact that the supposed 'wide recognition' of the
equidistanoe principleismainly restrictedto boundaries in rivers, straits,
channels and coastal waters. Thesituatioti in thesecaseisnoi comparabl~
toa situaiion wherebustudarieshave io bedrawn throug exterisivmarifime
areas under ifthighsea. .. As precedents carry weight only for compa-
rable situations, ihis praciicecannot be reprrdd as reievanl for other
maritime situations where such an equitable apportionment cannot be
expected from the application of the equidistance principle under al[
circumstances." (Italics added,)
Lf,asthe Federal Republic concedes in the previous paragraph, it is obvious
that the authors of the Convention framed the rules on the delimitation of
continental shelf boundaries after paying regard to the experience made with
such methods in State practice and that they chose the method which they con-
sidered most suitable for the purpoçc, how can itaay that the situations are
in no waycomparable or that the practice is in no wayrelevant to the delimita-
tion of the continental shelf?The International Law Cammission and the States
at the Geneva Conference, including rileFederal Republic ifself,chose the
equidistance principle as the "method" mosr suitablefor rhe pilrpose ofthe
continentalsheg
57. The two Governments, bcfore turning to the State practice relating to
the continental shelf itself, must express their reservations concerning the
comment of the Federal Republic on the precedent of the European Fishcries
Convention cited in the rclevant Annexes of the Counter-Memoridsl under
the heading "Fishery Zoncs". Article 7 of this rnultilateral Convention, signed
by the Federal Republic together with 12 other European Powers, provides
for the application of the equidistance principle in the delimitation of the
boundaries of the 12-milefishery zones established by this Convention; and
itdoes so both in the case of "opposite" States and in the case of "adjacent"
States. Dealing with this precedent in paragraph 38 (6) of the Reply, the
Federal RepubIic comments: "it should be noted that the Federal Republic
of Germany has not ratified the European Fisheries Convention."
It may be tnie that the Fedcral Republic has not yetratified this Convention.
But, as the documents in Annexes 1-3of this Rejoinder show, it is no less true
that in 1964, together with Denmark, the Netherlands and the other Powers
concerned, the Federal Republic signcd a Protocol ol Provisional Application
of the Fisheries Convention 2;and that under this Protocol the Çonvent ion .
has been and is being applied as between Denrnark, the Netherlands and the
Federal Republic. Again, in 1967the Federal Republic and Denmark concluded
an agreement by Exchange of Notes under which Denrnark accorded to the
Federal Republic the right to continue a traditional Cerman fishery along the
Danish Coast spec$caily witk referen oeArticle 9, paragraph I, oJthe Cori-
vention. In that Exchange of Notes3 it was alsa agreed that the temporary
southern boundary of the fisheryzone should be that Iniddown in the "partial"
Danish Annex 13and NctherlandsAnnex 15.
Annex 1 to thisRejoinder.
"nnex 2to this Rejoinder. COMMON REJOINDER OF DENMARK AND THE NETHERLANDS 491
continental shelf boundary Treaty of 9 July 1965, pending its final determina-
tion later through an agreement between the two Governments. Furthemore,
in connection with these negotiations the Federal Republic expressly stated in
an Aide-Mémoireof 16 March 1967:
"Although the Convention is not, as yet, in force for the Federal
Republic of Germany, it is expected that the Federal Republic's instru-
ment of ratification will be deposited during this summer, possibly before
1 July 1967. The delay in the ratification procedure is due to purely
technical reasons.
Already today, the Federal Republic of Germany considers herself
bound by the provisions of the European Fisheries Convention of9 March
1964 '."
Accordingly,the two Governments cannot regard the comment of the Federal
Republic in its Reply as in any way affectingthe significance of the European
Fisheries Convention as an example of the application of the equidistance
principle in the delimitation of maritime boundaries. Indeed, it remains as yet
another instance of the recognition of the equidistance principle by the Federal
Republic in the North Sea.
2. State Practice irrRegard to the Delimitation
of the ContineritalShelf
58. In Annexes to their Counter-Memorials the two Governments set out
12precedents of delimitations of continental shelf boundaries al1of which have
occurred since the Geneva Conference of 1958 (Danish Counter-Memorial,
Annex 13; Netherlands Counter-Mernorial, Annex 15); and, analysing this
practice in Chapter 3,Part II of the Counter-Memorials, they showed that in
al1the precedents, includingthree in whichthe Federal Republic was concerned,
there was an application of the equidistance principle (Danish Counter-
Memorial, paras. 100-110; Netherlands Counter-Memorial, paras. 94-104).
The sole exception, they further pointed out, was the Federal Republic's
claims in the present case.
The Federal Republic has made certain comments on this practice in para-
graphs 37 and 47-55 of the Reply and in Section A of the Annex thereto; in
addition, it has drawn attention to certain further precedents which it puts
forward as incompatible with the recognition of the equidistance principle.
59.In regard to the North Sea, the Federal Republic questions the reference
in the Counter-Memorials to the Denmark-Netherlands Treaty of 31 March
1966 on the ground that its validity will entirely depend on the ruling of the
Court in the present case. But this Treaty is not cited as a precedent bindingas
slrchirponthe Federal Republic.It iscited merelyas part of the general evidence
of the conviction of States that the applicable principles and rules of inter-
national law in force today for the delimitation of the continental shelf are
those expressed in Article 6 of the Continental Shelf Convention; and it is
similarly cited as part of the evidence that al1the North Sea States, with the
singleexception of the FederalRepublic, havesought to delimittheir continental
shelfboundaries in accordance with those principlesand rules.In those contexts,
the Treaty is fullyrelevant, even if it may do little more than confirm an opir~io
juris on the part of Denmark and the Netherlands whichwas already ir?iplicit
in tlreirpreviorrsratificationsof the CorrtinentalShelf Convention.
' Annex 3 to thisRejoinder.492 NORTH SEA CONTINENTAL SHELF
The Federal Republic also questions the reference to the "partial boundary"
treaties of 1December 1964betweenthe Federal Republic and the Netherlands
and of 9 June 1965 betweenthe Federal Republic and Denmark, because "the
Federal Republic of Germany upon signing these treaties, made it clear that
it did not recognizethe equidistance rnethodas determining the further seaward
course of the boundary line l". Here again it is not a question of a precedent
binding as such upon the Federal Republic but of evidence of recourse to the
principles of delimitation whichare found in Article 6 of the Continental Shelf
Convention. This aspect of the Treaties was gone into by the two Governments
with somethoroughness in the Counter-Mernorials(Danish Counter-Memorial,
paras. 105-109; Netherlands Counter-Mernorial, paras. 99-103), and the
Federal Republic does not really seem to make any new point in paragraphs 29
and 30 of the Reply. Al1it seems todo is to clarify a little in paragraph 30 its
explanation of its acceptance of the "partial" equidistance boundaries. It
there says that the treaties "prove nothing more than the fact that the equi-
distance line may bc employed for the delimitation of the continental shelves
between adjacent States in the vicinity of the Coast where the direction of a
boundary line based on the equidistance method is not yet it~jlitencedby the
special configurationof the Coast so rnuclias to cause atl inequitable result"
(italics added). The interesting thing about this explanation is that it really
seems to be indistinguisliablefroni an invocation-liowever tttglrstified-of the
"special circtrmstances"clausewhichfortns an integralpart of the rulecontained
in Article 6 of the Convention.That it is completely unjustified will be shown
later in Chapter 3. Lnthe present connection it sufficesto point out that the
Federal Republic isableto rationalize itsacceptanceof the "partial" boundaries
only by recourse to a thinly disguised version of the equidistance-special
circumstances rule.
60. On four other North Sea delimitations-the treaty between Denmark
and Norway of 8 December 1965and the treaties betweenthe United Kingdom
and respectivelyDenmark, the Netherlands and Nonvay-the Federal Republic
rnakes the comment that they "contain one or several points of equidistance
which are connected by straight lines 2".This comment, if it is intended to
suggcstthat thefour treaties in question do not establish boundaries determined
by application of the principle of equidistance, merely serves to underline the
decidedly forced character of the Fedcral Republic's arguments on this aspect
of the case. All four Treaties expressly proclaim themselvesas based on the
application of the equidistance principle; and al1four go as close to establishing
an actual equidistance line al1along the boundary as is consistent with the
practical requirements of a definition of the line by referencc to geographical
CO-ordinates.
61. As to the last of the North Sea precedents, the Belgian Bill introduced
into the House of Representatives on 23 October 1967,the Federal Republic
observes in paragraph 37 of the Reply that "it is not a treaty at all". This is,
of course, tme. But laws, decrees, proclamations, etc., promulgated uni-
laterally are unquestionably relevant forms of State practice in determining
what are the generally recognized principles and rules of international law.
The Federal Republic clearly recognizesthat this isso, becauseit revertsto the
Belgian Bill inparagraph 55 of the Reply where it criticizesthe Bill as "a very
weak precedent". In support of this criticism it further observes:
-- --
l Reply, para.29.
Reply, para. 37 (d). CDMMONREJOINDER OF DENMARK AND THENETHERLANDS 493
"Apart from the facs that it iat present only a proposa1 without the
force of lawitis certainly withîn the discretion of anyState to adopt the
principle of equidistance for the delimitati~n of its continental shelf
vis-à-vists neighbours if it considers such delimitation equitab11does
not follow £rom the Exposedes Motifs of the Belgian Government which
accompanies the proposal, that the Belgian Government had chosen
delimitation by the principle of equidistance because &lgiuisobIigedto
acceptthiç mode of delimitation."
The Belgian Bill is, in fact, far from bean"very weak precedent"; on the
contrary, it is of particular interest, seeing that Belgiumnotsyetbecorne a
party to the Continental Shelf Comrention.
In the 6rst place, the BelgianBill docs not stand alone aspurely unilateral
act.In Annex 13 A to the NetherIands Counter-Mernorial there isprinted the
text of a Note frorn the Belgian Ernbassy ar The Hague to the Netherlands
Government datcd 15 September 1965, Le., some two years before the sub-
mission of the Billto the BelgianParliameni. In this Note the Belgian Govern-
ment refwred io projected consultations betweeri the two Governments con-
cerning the delimitation of their continental shelf boundary andthen replied
to the request of the Netherlands Government for BeIgium's agreement to
the CO-ordinates51' 48' 18"North and 2" 28' 54" East as thecommon point of
delimitation between Great Britain, BeIgium and the Netherlands. In this
regard the Bclgian Government expressed itself as follows:
"The Minisiry of Foreign AITairswill certainly be aware of the fact
that therc ias yet no Belgian Act of Parliament in respect of the Conti-
nental Shelf; the Bclgian Government is therefore unable to see in what
way it could oficialiy express its approval of the said co-ordinaselong
as the Bill that was elaboratedunder the former Government and was
heldup on accciunt of the dissoiution of Parliamenhasnot passed into
Iaw; inthe opinion of the Eklgian Governmcnt, such approvaf would be
without foundation in domestic legislation.
The Belgian Government does not klieve, however, that this point is
suchthat it couId create any dificulties, seeing fhainofmore isinvolïed
herethan a qrrestioof tirne.
The BeIgiari Govcrnment has therefore instructed its Embassy in The
Hague to state that the former will mcanwhilc raise no objection
to the CO-ordinates51"48' 18"N and 2"28' 54" E which have been agreed
upon by the Governments of the Netherlands and Great Britain as deter-
mining the comrnon point of delimitation and wkicli have been deerned
acceptahb by the Belgian experts." (Italics added.)
The co-ordinates in question, it hardly needs to be said, are those which
had been accepted by the Belgian expertsas atonce the southern terminal of
the Netherlands-United Kingdom medianline and thenorthern terminal of the
Netherlands-Bdgian lateral equidistance boundary.
62. It ishardly conceivable that, before the matterhadeven been submitted
to the Belgian Parliament, the Belgian experts and the Belgian Government
would have gone so far in expressing their acceptance of the trilateral Nether-
lands-Belgian-United Kingdom equidistance point, if theyhadnoc ken under
the firm conviction that thiwas the terminal point ofthe Bclgian-Netherlands
boundary indicated by the generalIy recognized rules of international law; or
chat tlie Belgian Government would have gone so far as to say that "nothing
more isinvolved here than a question of tirne", they had not been çonvinced' 494 NORTH SEA CONTINENTAL SHELF
that the generally recognized rules of international law governing the matter
would inany cvent require the Belgian Parliament to cndorse the triIateral
equidistance point as the terminal of the Belgian-Netherlands boundary. This
is al1the more inconcefvablein that Belgiurn is not a party to the Continental
Shelf Convention and the area of the continental shelf which accrues toBel-
giurn under boundaries determined by application of the principle of equidis-
tance, though reflecting what naturally appertains to her çaast, is not con-
siderabIe. Belgium, like the Fedcral Republic, finds that the proxirnity of
coasrs of orher neighbouring Statcs lirnits the area of continental shelf which
appertains to her awn toasts, Unlike the Federal Government, howcver, the
Belgian Government did not beljeve this to be any reason for displacing thc
equidisfnnce prinçiple as the applicable criterion of delimitation.
Nor does the rnatter rest there. Owing to delays irnposed by the course of
politics in Belglum, thc Bill has not yet been vated upon by the Belgian Par-
liament. Huwever, the projected consultations between the two Govcrnments
and their expertsduly took place and full agreementwas reached between them
regarding the course of the Netherlands-Belgium cantiriental shelf boundary
on the basisof the principle of equidistance. Inresponse to a request from the
Netherlands Government, the Belgian Government has stated in a Note of
8 Decernber 1967that it has no objection to this agreement's king brought to
the attention af the Court, providcd that it ismentioned thar the position taken
bythe BelgianGovernrnent issubject to the approvai of the BelgianParliament.
The text and translation of this Note arc reproduced in Annexes4 and 4 A to
this Rejoinder,and itwillbeseen that theBeIgian Governrnent there describesthe
agreement asfollowç:
"Cet accord, non encore signC,porte sur la délimitation concrete du
plateau continental. Conformtment aux dispositions contenues dans le
projet de loi belge, il affirme le principe de la ligne médianedont tous les
points sont &quidistantsdes points les plus proches des lignes de base à
partir desquelles est mesur& la largeur de la mer territoriale des deux
Pays.
Sur cette base, l'accord consacrera que la délimitation sera tracke par
les arcs de grandcercle entre les points suivants:
(1j51" 48' 18"N; 2"28' 54" 0."
And there follow the CO-ordinatesof seven further equidistant points" In
other words, the course of the boundary is expressed in a manner very similar
to that in which the five equidistance boundaries already agreed upon by
other North Sea States are expressed.
As to the Exposédes Motifs of the Beigian Bill,this certainly seems to can-
firmthat the.BelgianGovernment considered the delimitation of its continental
shelf boundaries to be governed by the principles set out in Article 6 of the.
Convention. Having explained that Belgium would abstain from ratifying the
Convention because of her dissatisfaction with the definition of the continental
shelf and with the omission ofany provision for compulsory arbitration, the
Exposédes Motifs proceeds:
"Cette abstention ne signifiepas que le Gouvernement belgen'accepte
pas le principe m&medes droits de 1'Etatriverain. Comme la mer du Nord
ne constitue en réalité qu'un seup llateau continental physique, que Ses
droits qideI~OLIpourrionsy &tenir se trotivenn8cessairertzentlimitPs d'une
l IIlustratedin Appendix1 toAnnex 4. COMMON REJOINDEROP DENMAKK AND THE WETNERLANDS 495
muniire coiicrètepurceux des aufre~Etar~riverains, Ics lacunesde la Çon-
vention de Genève nesauraient y avoir effet.
Aussi,le Gouvernement belge,h l'instarde cequ'a fait le Gouvernement
norvégienpar sa loi du 21 juin 1963, a-t-il pris la dkcision d'affirmer les
droits dc la Belgiquesur la part qui lui revient dabsplateau continental
de la merdu Nord par la voie d'une loi nationale, reprenant lesdispositio~is
de la Coizventiotde Centve du29avril 1958 qu'iiconsid6i-ecommelesphs
appvopriéesauplateair continendalbelge '".(Italics added.)
63. If zlie precedent of the Bclgian Bill has been discussed in these para-
graphs at some length, it is not only becauseof its obvious relevance to the
issues before the Court but also kcause of its evident incompatibility with the
arguments advanced by the Federal Republic in the prescnt cases. The signi-
ficance of the precedenisincreased by its ccimplete consistency with the posl-
tion adopted by Iraq, another Siaitewhichfindsthe riyhts that can have to the
continental shelf "ntcessairement limitésd'une manière concrétepar ceux des
autres Etats riverains",asthe Belgian Government put it in the passage cited
above from its Exposédes Motifs.
64. In fact there is yet another precedent which relates to the North Sea
region, even if not actually within the NorthSea irself, namely an Agreement
signed on 24 July 1968 between Norway and Sweden for the deliinitation of
their continental shelf boundary in the northern part of the Skagerrak. The
two Governments concerned have consented that this Agreement, although
iiot yet made public, should be broughr to the attention of the Court in this
Common Rejoinder. The Agreement, as appearsfrom Annex 5, is on much
the same general linesastheNorth Sea Agreements mentioned above. Article 1
expressly states that "The boundary line. ..shall Inprinciple be a line which
at cvery point isequidistant from thc nearest points of the baselinesfromwhich
the territorial seaof Sweden and Norway is rneasured". Article 2 states that
"In conformity with the principle setforth in Articl1 the boundary line shall,
with certain minor divergenciesfor practical purposes be aline drawn through
the followingfivepoints" which arethen defined. Points 1and 2-nearer to the
shore-are not pointsof equidistance but are fixed by reference to the so-calied
Grisbadarna line established under the Award of the Permanent Court of
Arbitraiion in 1909; inother wards, by reference to a historic "special cir-
cumstance" similar to that in the U.S.S.R.-Finland Treaty of 1965delimiting
their cornmon territorial sca and continental shelf boundary. Bctween Points
3 and 5 the line is evidently based upon the equidistance principle but, for
administrative convenience, the curved line has ben sirnplified by straight
lines connecting Points 3 and 4 and Points 4 and 5. Point 5, the final Point,
isa so-called "tripoint" between Denmark, Norway and Sweden.
The Norwegian-Swedish Agreement, it hardly needs to be said, relates to a
lateral boundary between adjacentStates. Ittherefore constitutea case in the
North Sea region in which ardjacend Stateshave expressly based themselves
upon the equidistance principle largely reproducing the actual phraseology of
Article 6, paragraph 2, of the Convention. Furthermore,oneof theseStates-
Norway-is not aparty to the Convention.
65. kegarding preoedents outside the North Sca, the Federal Republic
does not comment on the Agrmment of 9 June 1965establishing a median line
boundary betweenthe continental shelvesof Denmark and the Federal Repubfic
in the Baltic otherwise than to insist in the Annex to the Reply that this as
Counter-Memorjals,Annexes 14 and 14 A.496 NORTH SEA CONTINENTAL SHELF
"dividing line between opposite States". But,as isemphasized in paragraph 74
below, the fact thar the precedent may insome degree be regarded as a case of
"opposite" States in no way diniinishes its valas cvidence of the application
of the equidistance principle in Sfare practice.
Regarding the two U.S.S.R.-Finland boundaries in the Baltic (Danish
Counter-Mernorial, Annex 13, pp. 260-263,supm; Nctherlands Counter-Memo-
rialAnnex 15,p. 388,supro), the FederaIRepubliccommentsin paragraph 37(d)
of the Reply that these "provide for boundaries followingmore or less precisely
ageneral middle line"; and that "thereby it might be suggestedrhat equidistance
and middle lines are identical which cIearlythey are not". The pertinence of
this comment is not understood. 30th the Agreements in question expressly
refer in their prcarnbles to the Geneva Convention on the Continental Shelf
and expresslyprovide for a "median line" boundary. As to the comment in the
Annex to the Rcply (p. 439,sitpru)that "the laterai boundary in the Gulf of Fin-
land does not followthe equidistance line", thisfeature of the Treaty of May
1965teflects a specialcircumstance arising froni the Soviet-Finnish Peace Trea-
tics of 1944and 1947, aswas fullyexplained in the Counter-Mernorials (Danish
Counter-Mernoriai, para. 102; Netherlands Counter-Mernorial, para. 96).
- 65. Tn the present çonnection, and more generally in connection with the
lcgal position takcn by tlie U.S.S.R., the attention of the Court idrawn toa
recent "Decree by the Presidium of the U.S.S.R. Highest Soviet oti the Con-
tinental Shelf of the U.S.S.R." (Annex 4). Dated 6 February of the present
year, this Deme incorporates inta the law of the U.S.S.R. the prinçiplcs of
Article 6 of rhe Continental Shelf Convention. Thus, by paragraph 2 (b) of
the Dccree itjsexpressly laiddown that in the absenceof any agreement with
the States concerned and unless speçial circumstances justify another boun-
dary:
"the boundaro yf thecontinentaI shelfof the U.S.S.R. with a Statewhose
shclf is adjacent shall be determined by application of tlicgrinciple of
equidistance from the nearestpoints of those baselines from which the
breadrhof the territorialsea of the U.S.S.R. and the corresponding State
is measured".
This is precisely the legal position of Denmark andthe Nethcrlands in the
presen tcase.
67. As to the Mediterranean, mention is made by the Federal Republic in
its Annex (p.449,supra) ofa report that agreement has ben rcachedconcerning
the delimitation of the Italian-Yugoslav continental sheIf in the AdriaticSea.
The FederalRepublic thencomrnents: "Itseems that the boundary considerabIy
deviates from the equidistance line." However, the two Govemrnents' under-
standing of the report isthat the eontemplated boundary is a median equi-
distance Iine modified only ina few places on account of probbms presented
by certain small islands
68. Tn regard to South America, the Federal Republic cites in its Annex
{pp.437-438, supra) decrees of Chile, Peruand Ecuador providing for 200-mile
maritime zones bounded by lines drawn dong the parallels of latitude of the
points wherethe land frontiers meet the sea. It sufficesin the present connection
to observe that these de~reesforrned part of highly special understandings and
agreements betweenthe three States concerned; and that the situation in regard
to them bears no relation to theissuebefore the Court.
A translationOFthe Agreement, published in Intermiional Legal Materials,
Vol. VIT,No. 3, May 1968,pp.547-553,isreproduced asAnnex7. COMMONREJOINDEROP DENMARK AND THE NETHERLANDS 497
The Federal Republic also refers in the Annex to the United Kingdom-
Venezuela Tseaty of 1942 (Gulf of Paria) as providing for boundary lines
which are not equidistant. This treaty, whichdividesthe waters oa gulfalrnost
wholly enclosed between the island of Trinidad and the mainlandof Vcnezuela,
was concluded before the modern doctrine of the continental shelf had been
set inmotion by the Truman Proclamation of September 1945. Moreovcr, al-
though it is true thal the boundary dues not follow the equidistance line, a
cornparison of the cquidistance Iine and the treaty boundaas shown on figure
B (secp. 498,infra)suggeststhatthe departurcs frorn the equidistance line more
or less balance each other and that the agreement reflectsa compromise, the
general basisof which was a divisionofexpediençy derivedfrom the application
OFthe equidistance principle. The actual course of the boundary was, it seems,
dictated by particular local considerations.
69. In the Western Pacific the Federal Republic cites in its Annex the Com-
monwealth of Australia's Petroleum (SubrnergedLands) Act 1967, theSecond
Schedule of which sets out the continental shelf boundaries of Australia's
individual States and territories, as mutually agreed between them and the
Federal Governrnent. On this Act the Fcderal Republjc comments that it is
"an example of international law as applied between the individual states of
a federation"; and it further comrncnts that the boundary linesagreedktween
the states conccrned "differ largely from equidistance, particularly as the fron-
tier between Victoria and South Australia is concerned".
This Act, although clearly of interest from the point of viewof international
law, is an interna1 law of the Cortirnonwealth and it is obvious that constitu-
tional, fiscalaiidhistorical considerations haveaffectedthe agreementsin regard
to the inter-state boundaries. Even so,as figurç C (see p. 499, infuu)shorvs,
the boundaries fixed in the Second Schedule would appear to indicate a large
relianceon the principlcof equidistancein theit delimitation. In thisconnetion,
the Federal Republic's observation regarding "the frontier between Victoria
and South Australia" is not understood, since the continental shelf boundary
far these states, as defined in the Second Schedule and illustrated in the map
produced in the Australian Parfiament, appears to be a case of a boundary
largely detcrmined by referenceto the equidistance prjnciple.
In any event, the Act also provides for certain international boundaries
aiid with regard tothesc boundaries,as appears from the Notes of the External
Affairs Department of 19 June 1967 and 18 March 1968 has considered the
equidistance principle to be the applicable principle. Jndeed, in the latter Note
the Department expressly observes in regard to the boundaries bctween West
Irian and the Territories of Papua and New Guinea that the principle of
equidistance mrtitioizëd NiArticl6, parag.uaph2, i.e., thadtacemi States pro-
vision, has ben applied for the purpose of dcfining the boundaries.
In the case of Papua, aminor modification of the equidistanoe principle was
in Factmade in favuur of the Territory for a special reason expliiineby the
Minister of National Development when moving the second reading of tlie
Bi11in the Australian Parliament on 18 October 1967 =. Recalling that in the
gast certain exploration perrnits had ken issued by the Territorof Papua on
the basis ofa boundary somewhat more favourabie to Papua than the nredian
line, he pointed out that to apply the median line would therefore resulin a
reduction of the area of continental shelf under the authority of the Tenitory.
He then said:
l Anncx 8, B.
Annex 8, C.498 NORTH SEA CO~TINENTAL SHELF
Figure B. GuN of Paria- Treaty Boundary
and EquidistanceLine PETROLEUM {SIJBMEKCED LANDS) BILL 1967
ADJACLN'T jiRE.45
NOTE
TheBr11aupllm onl~ in rclalion la ex~loration Tor. and mpd.rhn wimlslim
l resmurtesot such wbrnergelands included in the ad~sccntareawe ihe chaiictceirhw-
(a) ot saabd and subseil heneath territorial waten, or
{b] 01 continental shelf wiihin the rneaiheeConveniion on ihe Coniinenial Shall signed
ai Ganwa on 29 Aptil 7958.
Figure C COMMON REJOINDER OFDENMARK AND THE NETI-IERLANDS 501
connectiori with the extension of Iraq's territorial sea to 12 milm, the Iraqi
Government asked a Norwegian expert, Commander Coucheron-Aamot, to
measure on a chart the territorial sea and continental shelf areas which it
considcred to apperrain to Iraq. At any rate, by a Note of 22 August 1960
the lraqi Forcign Ministry transmitted to the Danish Embassy in Baghdad a
copy of an officia1chart showing thc areas of territorial sea and continental
shelfof Iraq as delirnitedin accordancc iviihthe measurements ofthe Norwegian
expert. This chart, on which the northern boundary of the Kuwait-Kuwait
Shdl wnccssion has also been addcd for ease of cornparison, is reproduced in
figureD (see p. 502,infra)This chart demanstrates:
(1) Iraq has based the dclirnitation of her territorial sea and continental
shelf in the Persian Gulf, vis-cà-vboth Siales udjacerit rIier, on the strict
application of the equidistance principle.
(2) The northern boundary or the Kuwait-Kuwait SheElconcession does not
follow the general direction of the land frontier but ispractically identical
with the equidistancc line claiined byIraq as her territorsea and continental
shelf boundaries.
It is equally clear that the other boundaries of the Kuwait-Kuwait Shell
concession are not continuations of the gencral direction of the land frontier.
Study ofdetailed charts of this part of the Pcrsian Gulf shows that the delirni-
tation of the actual international boundaries between Kuwait and rcspectively
Iran and the Neutra1Zone involvesconsideration of the usc of various islands
and low-tide elevations as base-points for the application of theequidistance
principle; and it may besurmised that the other concession lines arc "working"
boundaries pending the completion of negotiations between the States con-
cerned.
72. The Traqi prccedent, as already indicated in patagraph 63 above, is of
partiçular interest. Iraq, likc Belgium and the Federal Republic, is not a party
to the Continental ShelEConvention; indeed, like Belgium, she is not even a
signatory to either the Territorial Seor Continental Shelf Conventions. Like
Belgiurnand the Federal Republic, Iraq is a country whosc coast abuis upon
a "single natural continental sbelf" and whose rights thereover, in the words
of the Belgian Exposédes Motifs, "are necessarilylimited ina concrete manlier
by the rights of other coastal States". Again, lika Belgium and the Federal
Republic, lraq finds that the area of continental shelf appertaining to hcr
undcr the equidistance principle is iiot considerable. In other words, Iraq's
situation has obvious parallels with that of Belgiumand the Federal Republic,
and more especially that of the Federal Republic. Like Belgium, but ciillike
the Fedëra lepublic, Iraq has automatically considered that the equidistance:
principle expressed in Article 6 of the Continental Shelf Convention would
govcrn the dclirnitation of her continental shelf in the absence of an agreement
or of special circurnstancesjustifying another boundary Iine.
73. The Danish and Netherlands Governments accordingly persist in
thinking that the State practiçe sincc the Geneva Çonference of1958 points In
thc strongest and most unequivocal manner to the acceptane by States of the
principles and rules expressed in Articl6 of the Convention as the generally
recognized rules of international law applicable to the delimitation of
continental shelf boundaries today.
74. The two Governments further consider that there is no substance what-
ever in the argument, often repcated and invoked again in regard to this State
practice in paragraphs 44, 51 and 53 of the Reply, that for the most part it
relates to boundaries between "opposite" States. They have already underlined w U!u-P'l%l io
J- --3 10
IWS iw~m-l!e*em UI
* 0"lQmii I,cS+plnw
mY4 )O luidUUUlmN aF1:
uni. Ioluiuiwl : ('1ljl
1- 111ml!JJe,: -------
'au!, .Ulm "01 ' ..----...
=au!l aan+*!P!*a '
:mQlPl W WIEII *I "01 TI~U;TT aql
'HWl mg+ 10 Dr!= lmr#i *y! 0,
eul*Q -al Pi3nDO2dw - +au riiuipiy*
SPWfi 10 UotrwDw irwr O ~UIOIW
Pua ID"'~!JQeq~ oqd ~JWI UI:qq COMMON RWOINDER OF DENMARK AND THE NETHERLANDS 503
that the internationalLaw Commission and the Geneva Conference made not
the slightest difference between the casesof "opposite" and adjacent States
either in regard to the territorisea orthe continental shelf (see paras. 45-47
above). As to the State practice itself, Belgium, Iraq and the U.S.S.R. provide
clear cases of the recognition of the equidistance principle as the general rule
applicable between "adjacent" States, quite apast from the position taken,
from the first and independentfy, by both Denmark and the Nerherlands in
regard to the boundaries now More the Court and the positioii taken by the
Netherlands in regard to the Netherlands-Belgium boundary. The Federal
Repubric, in fact, stands alone in the sharp distinction which it seeks to make
between "opposite" and "adjacent" States. Furthcrmore, the reasons for not
making any such distinction are compelling. In both cases the equidistance
principleestablishesan objectivecriterion for determining what in the generality
of cases is to be cansidered an equitable delirnitation. In both cases also,
notw~thstandingthe apparent opinion of the Federal Republic to the contrary,
certain types of geographical factors may amount to "special circumstances
justifying another boundary line". An insignificantoffshoreisland, for example,
may affcct a delimitation between "opposite" States just as much as one
between "adjacenty'States. There is, inshort, notashredof justification either
in law or in fact for the distinction on which the Federal Republic so heavily
reliesin trying to undermine the significanceof the State practice.
75. Tn concluding their examination of the State practice, rherefore, the
two Govemrnents reafhrm their conreniions that the principles and rules of
international law expressed in Article 6, paragraph 2, of the Continental Shelf
Convention are the generally recognizedprinc@lesand rules ofiister~uiional
law app!icab!e lu fhe deliniiratio,~ofthe conlinenralsh~ifberween "adjureilt"
Sraies.
SectionIII. ThePositionof theFedemiRepublicinRelation to the
QuidistanceSpacial Circumstances Rule
76.In Lhaprer IIofthe Reply (para. 19)the Federal Republic cornplains khat
the Coiinter-Mernorials"do nordistinguishclearlyenough betweenthe inlritisic
merirsof the equidistance method on the onehand and the solrrceoJobligarion
foi a Stateto settleits boundary vis-i-vis its neighbour States byapplication of
this method". Then, while conceding that in many cases the equidiçtance line
may be regarded as the most equitable boundary line, the Federal Republic
asserls:
"But there remains the question uiiderwhaflego1 fititehe egriidis~nnce
I~P~cEtibe itnposedniz thFedera Repuhk ofGermany ;here the Counier-
Mernorial fails to provc itç case." (Italics added.)
It goeson to recall the observations of the two Govemrnents in the Counter-
Mernorials that :
"Denmark and the Netherlands having delimited their continental shelf
boundaries specifiçallyon the basis of generally recognized principlesand
rules oflaw,these delimitations aprima fuci eot cantrary to international
law and are valid with regard to other States .. . ln the present case it is
not a question of Denmark and the Netherlands seeking to impose a
principleQI+rule upon the Federal Republic; it is rather a questiof the
Federal Republic's seeking to prevent Denmark and the Netherlands
from applying in the delimitation of their continental shelf boundaries the
principles and rules of international law generally recognized by States." COMMONRWOINDER OF DENMARKAND THE NETHERLANDS 505
obligation resting upon the Federal Republic: to respect those equidistance
boundaries. This contention seems to be inspired by the notion that, State
sovereigntybeingthe basis ofinternational law,no obligation can be considered
to sest on the Federal Republiç unless it is proved that it has accepted that
obligation cither specificallyin a ireaty to which it is a party or through a
custom which is specificallybiiding on the Federal Republic. But the Federal
Republic overlooks the fact that the sovercignty of Denmark and the Nether-
lands are also to be reckoned with. These States,as the Federal Republic itself
acknowledges, ipso jure posscss rights over the areas of the continental shelf
adjacent to their coasis. lt therefore seems somewhat bold for the Federal
Republic tomaintain that the two States may exerciseand enjoy these rights to
the extent adrnitted under the generallyacccpted principlesand ruIesonlyifthey
can esiablish a speific obligation resting upon the Federal Republic to aIIow
rhem iudu $0.
81. ln the Fisheriescase (I.C.J. Reports 1951, p. 1321,as the two Govern-
rnents recalled in their Counter-Mernorials (Part 11,Chapter 2),the Court has
statcd authoritatively the position afcoastal State with regard ta the delimita-
tion of sea areas. Jt.dinot say that the validity ofa delimitation bya coastal
State vis-a-visanother State dependsupon the will of that other State or upon
~htlnfrer'ssubjecfiveconceptof the seaareas wliichit wurddconsider aj~rsiarad
equilnblealiucarion toitselfThe Court said that the validityofthe delimitation
with regard to other States depends upon inrernafionallaw. Accordingly, ir
would seemverynecessaryto examinethe rights, and the sourceofthe rights, of
the coastal State in the sea areas concerned before beginning lo talk of the
invalidity of its delimitation owjng to anylack of proof of a specificobligation
on the part of a neighbouring State to respect that delimitation.
82. The Federal Republic, it may be, does not accept that partof the defini-
tion of the continental shelf in Article 1 of the Convention which refers to
exploitable areas beyond a depth of 200metres. Subject to this, the Federal
Republic considers that "itis generally recognized today thatthe coastal State,
by virtue of its geographic positio... isvested with exclusivesovereignrights
over the continental shelf adjacent to its coasi for the purpose of exploiting its
natural resources" (Mernoriai, para. 29). It alseern tsaccept thatthe general
recognition of these rights ofthcoastal Statetoday issubstantialiy in the terms
in which they are expressed in Articles 1 to 3 of the Continental Shclf Con-
vention; for it later speaks of the general recognition of the exclusiverighof
the coastal State over the continental shelf lyjng adjacent to its coasts speç$ed
in Articles IIO 3 oj'fhe Conv~niion. In short, there isno material divergence
between the view of the Federal Republic and the views of the two Govern-
ments as to the nature and scope of the rights of a coastal State over the con-
tinental shelf adjacent to its coast which are generally recognized in interna-
tional law today.
Ttfolloua that the Federal Republic isin agreement with the two Govem-
ments that these exclusiverights of the coastal State attach to iaufomaticully
"by virflreofits geog~rrphicposiiian". Indeed, in the Mernorial the Federal
Republic was at pains to removeany doubt as taitsviews onthispoint (para. 29):
"It is imrnateriaf whether these exclusive sovereign rights overthe
continental shelf adjacent to its coast are vested in thc coastal Statipso
jure,as assumed in Article 2 paragraph(3) of the Convention on the
Continental Shelf-
'the rights ofthe coastal Stateover the continental shelf do not depend
upon occupation, effectiveor notional, or on any express proclamation,' 506 NORTH SER CONTINENTAL SWELF
or whether the çoastal State must assert suchrights by some forma1 and
unequivocal action. In any case,itisgenerally recognized that the rights of
the coastal State over the continental shelf adjacent to its coasare ex-
clusiveir ihesmse rliatatherStates am exclrded a litnitfrom clait~lingor
acquiring righismer rhat part ofthe con~ine/tf~lhew which'appertains'to
the coasralSiate." (Italics added.)
Frorn this undoubtedly correct staiement of the law as jtexists today the
Federd Republic jumped to a discussion of "distributive justice"and the
alleged principle of the "just and equitabIe share" of the continental shelf of
the North Sea as a whole wlckour considering either thelegai irnplicc~tionsaf
the exclusive rights the cuasfalStore as generally recognizedor the compati-
bility of itown- allegedprinciple with the exclusive rightsso recognized. But
when these two rnatters are examined, it becornes obvious that the Federal
Republic's insistenceon the need for Denmark and the Nctherlands to prove
acustomary rule conferring upon them aspecific"legal title" under which the
equidistance line can be imposed on the Federai Republic of Germany lacks
any real basis.
83. Since the applicable law accepted by the Federal Republic recognizes
the autoinatic extension of the exclusivesovereign rights afcoastal State over
the area of the continental shelf which is adjracentta thçoastof its territary,
the existence of these rights necessarlly entails a corresponding obligation
on the part of al/ other States to respect thoseexclusiverights. But logically
the rights precede the obligation and determine its naturand scope.In con-
sequence, the question is not whether the Federal Republic has undertaken, by
treaty or by custom, an obligation towards Denmark and the Netherlands to
respect the exclusive rights of these States, but whether the exclusive rights
in fact claimed and exercised by thern are indeed recognizedby the principles
and rules of international law.
Inherent in the recognition of the coastal State's exclusive rightover the
continental shelfadlacent to itscoast isthe conccpt that the continental shelf
adjacent to the coast oFa State is, in principle, to be considaseappertaining
to that State. Inherent in this concept is thcn the further concept that con-
tinental shelf whichis nearertoone çoast thaa to another is, in principle, ta be
considered as adjacent to the nearer coast. Otherwise, not only the term
"adjacent" but aiso the very principIe of recognizing the automatic extension
of the "exclusive" rights of the coastal State over the adjacent continental
shelf would begin tcilose their meaning.
This view of the matter is refnforced by the specificprovision in Artide 6
of the Convention that, inthe absence of agreement or of special cirurnstances
justifying another boundary line, the boundary is to be determined by reference
to thc principle of equidjstance borh as between "appositc" and as between
"adjacent" States. Whether or no2this provision isregarded astheexpression of
a distinct customary sule binding as such upon the Federal Republic, it is
certainlya reflection ofwhat the States at the Geneva Conferenceincluding
it would seem the Federal Republic-cançeived to be an expression of what
should be considered the area of continental shelf "adjacent" toa coast and
as prima facie appertajning to the coastal State. The principle of equidistance,
it hardly needs ro be said, comprises within itself the most obvious and the
most objective criterionof "adjacency ".
When Denmark and the Netherlands delimited their respective continental
shelves by application of the principle of equidistance, each State included
within the "adjacent" areas over which it has exclusiverights only those points1 COMMONREJOINDEROF DENMARK AND THE NETHERLANDS 509
cerning its "attitude towards the equidistance line" as without pertinence.
They do not touch the central point that in the present dispute the Fedcral
Republic invokes the general recognition of the exclusive rights ofthe coastal
State in the Continental Shelf Convention and at the same time, discarding
the conditions of its recognition, asserta claim in itsown case todefine thc
scope of its own riglitin lirown mantterand noi inrhat eniiisaged it~thefarm
inwhiçhg<>rrerrae/cognitioiawasgiven to thoserighrs.
90.The refcrencein that section@ara. 25) to the dictum of the International
I Court of Justice in the Norwegian Fisheriescase c~ncerning the ten-mile rule
for bays issimilarly without pertinence, because the situation in regard to the
ten-mile limit forbays was entirely difTerentfrom that in regard to tlie equi-
distance principle for the delimitaiion of the continental shelf. Before any
question of a ten-mile limit arose the exclusiverights of thcoastal State over
enclosed bays had already ken recognized for a very longtime: the recognition
goes back to Grotius and beyond. The question in the Norwegian Fisheries
case (I.C.J. Rtports 1951, p. 131)was whethcr in the course of the nineteenth
and the early part of the present century a customary rule had grown up in-
tr~ducing a tcn-milc limit as a restriction upon size of thebays which cauld
be treated by coastal Statesas enclosed. It was in that very diffcrcnt context
tliat the Court said: "In any event the ten-mile rulewould appear to be in-
applicable as against Norway inasmuch asshe hm always opposed any attempt
t~apply it tu the Norwegian coast." The recognition ofthe exclusive rights of
the coastal State in that casc Iiad, in short, ben quite indcpendenof the par-
ticular limitation which was said by the Unitcd Kingdom to have afterwards
kcome attached to them under customary law.
91. In addition, the conduct of Norway in relation to the ten-mile limit
differedconsiderably [rom that of the Federal Republic in relation to thcequi-
distance-special circumstances rule. Norway had from the zîrst persistently
opposed the application of the rule to the Nonvegian coast and had refused to
participate in the drawing up and adoption of the North Sea Fisheries Con-
vention of 1882 on Chat very ground. In the present instance, on the other
hand, the Federal Republic while objecting to some clements in the text of the
Continental Shelf Convention in 1958voted in favour of Article 6. Afterwards,
as recalled in the Counter-Memorials, on the penultimate day before the Con-
vention ceased to be open for signature the Eederal Republic deliberately
associated itself with the Convention by si~ning the text (Danish Counter-
Mernorial, para. 99; Netherlands Counter-Mernorial, para. 93). Furthermore,
althougli making a spccial declaration with referencc to Article 5, it niade no
comment of any kind in regard to Article 6. Nor did it voice any objection or
misgivings in regard to Artide 6 either in its Continental Shelf Proclamation
of 20 January 1964or in the Expose des Motifs accompanying the Bill to give
effcctto the Proclamation (Annexes 10 and 11 to both Danisli and Netherlands
Counter-Memorials). Indced, in a Note of 26 August 1963 questioning the
view of the Netherrands Government thattlie eastern boundary of the Nether-
lands continental shelf would be delimited by the equidistance line beginning
at a named point, the Federal Repubric stated that "thereare /~utovica/reasorzs
andotherspecialcircu~nstancesthetjustfi adoption in the area ofthe continental
shelf under the North Sea of a delimitation line. the position of which differs
in more than one respect from that claimed by the Royal Netherlands Govern-
ment l" (italics added). This statement could not fail to give the irnprcssion
Nethcrlands Chunter-Mernorial, Annex 9 A.510 NORTH SEA COMINEWAL swELF
that the Federal Republic was taking a position under the provisionsof Arti-
cle 6, the appli~ation of which to itself, it now disavows. Subsequently, in the
Joint Minutcs of 4 August 1964 drawn up in connection with the negotiations
for the conclusion of the "partial boundary near the shore", the Federal
Republic's delegationused language which could not farlto givethe impression
that the Federal Republic regarded the delimitation of its continental shclf
boundary as a macter falling under Article 6 of the Convention (Memorial,
Annex 4 A).It js true thin these Joint Minutes and in the sirnilar Joint Press
Communique and Frorocol with Denmark regarding the Danish-German
partial boundary the Federal Republic reserved its position as to the further
courçc of the boundary and the principles to bi: applied in its delimitation
(Memûrial, Annexes 7 A and 8 A). Tt is true that in connection also with the
conclusion of other North Sea delimitation treaties the Federal Republic
reserved itsposition in regard to the applicatioof the equidistance principle.
But jt equally accepted the application of the equidistance prjnciple for irs
boundary with Denmark in the Baltic.
92. AdmittedIy, the Federal Republic seeks in paragraph 28 of the Reply
to give a djfferent aspect to its Continental Shelf Proclamation and to the
Expose des Motifs of the Statute givjngeffectto it. 'ithere states:
"A careful reading of those instruments (reproduced as Annexes 10
and 1I of the Danish Counter-Mernorial) would have shown that recogni-
tion of the custoinarylaw character of the provisions of the Continental
Shelf Convention was limited to the rulescontained in Arriclm I and 2
afthe Conveirtionaccording to which everyState hasipso jure an exclusive
right to exploit the natural resources of thc continental shelf adjaceto
itsCoast.Not a single word, however, appeared In these instruments on
the delimitation of the continental shelf which could be interpreted asa
recognition of Article 6, paragraph 2,of thc Convention or of the rutes
contained therein as custornary international law; on the contrary, the
Proçlamatian expressly declared that the delimitation of the Germn
continental shelf vis-&vis the continental sholves of other States would
remain the subject of agreements withthose States." (Italicsadded.)
Thisstatementcannot be accepted for one moment. Indeed, if itwere correct
the Court might wonder why those obviouslypwtinent documents of the Federal
Republic werc omitted frorn the Federal Republic's own Memorial and, had
to be brought to light by the Danish and Netherlands Governments.
Neither the Proclamation nor the Exposédes Motifs makes thc slightest
difference between the diferent parts of the Ganeva Convention. Indecd, the
Exposé des Motifs speaks cxpressly in its third paragraph of the Federal
Republic's assumprionthat "the contents of its rights" over thc continental
shelf '?conJorm60rhoseestabjishedfor coasial States by theGenevaCoi~vcntion"
(italics added). And the paragraph which follows refers not only to the state-
ment of the rights in Articl2 but also to the restrictions attachingto [hem
underArticles 3and5of theConvention. Even more pertinent, the Proclamation
itselfnot onlyspeaks "of thc development ofgenerailtzfernationalaw asexpres-
sed, ..inparticularin the Cairvenlion"('italicsadded) but also refers specifically
to the delimitation of the German continental shelf in language which is highly
significant. Tt does notSay,as the Reply states, that the dclimifaiiorzOF the
German continental shelf vis-&-visthe continental shelvesof other States will
remain the subject of international agreement. Whatitsays isthat the "detailed
delimitation" of the German continental shelf is ta be subjext to such agree-
ment; and in this form the statement is strongly suggestive of the detailed COMMONREJOINDEKOF DENMAKK AND THE NETHERLANDS 511
determination of a boundary already indicated in the provisions of the Con-
vention.
93. Accordingly, the position of the Federal Republic in the present case is
fundarnentally different from that of Norwayin regard to the ten-mile rule for
bays. Until the opening of the present proceedings the Federal Republic
conducted itselfas if it rcgarded the principles and mles of international law
st out in Article 6asthe generally recognizedrules applicable in the matter. Ir
declareci its vieivs concerning the inapplicability of the equidistance principle
to its own North Sea boundaries beyond the "partial boundarics near the
shorc". But that is aEl.
94. Moreover, the Danish and Netherlands Governments see no reason
whatever to modify the conclusion reached by them in the Counter-Mernorials
I that the provisions of Article 6 express what today are the generaIlyrecognized
rules of international law governing the delimitation of continental shelf
boundaries. This conclusion, if correct, isby itself enough in their view, to
establish the validity of the delimitations made respectively by Denmark and
the Netherlands on the basis of thc equidistance principle unlessthe Federal
Republic can satisfy the Court that in the presentcase there exists a "special
circumstance justifying another boundary" within the meaning of the rule
expressed in Article 6.Tf no such special circumstances exist,the Federal
Republic is, in their view, completely incompetent in law, by its mere @se
dixif,to deny either to Denmark or to the Netherlands the exclusivesovereign
rights over theiradjacentcontinental shelveçwhichappertainto them under and
in yirtueof the generaIlyrecognized principles and mles of law governing the
continental shelf.
95. That conclusion of the two Governments is based on the work of the
International Law Commission promoting a general consensus in regard to the
law of thc continental shelf, the cornments of Governments duringthe Com-
mission'swork, the proceedings of the Geneva Conference,the virtual unanimi-
ty of the vote adopting the text of Article 6, the ratification of the Convention
by no lesç than 37 States, and the subsequent recourse to the equidistançe-
special circumstances rule for the delimitation of the continental shelf byth
States urhichhave already ratified the Convention and by States which are not
yet partics to it. TheState practisincethe adoption of the Continental Shelf
Convention has been rc-examined in paragraphs 58-75 above and it points in
the clearest manner to the general recognition of the principles and rules
expressed in Article 6.
96. In the Reply the Federal Republic in effect challenges the two Govern-
rnentsto specifywhether they consider the principles and mles of international
lawexpressedin Article6not merely to begenerallyrecognizedbut toçonstitute
general niles of customary Fawbinding upon the Federal Republic. As pre-
viously indicated, having regard to the nature of the exclusive rights of the
coastal State overthe continental shelf and the circumstanceain whitheyhave
been recognizedto attach ipsojur~ to everycoastal State, the two Governments
consider it suficienforthe purposes of the present casethat the principles and
rules expressed in Article 6 are generally accepteas those applicable to the
delimitation of the continental shelf. Whether these principles and rulcsare at
the same time to be consideredas customary rules of international law binding
as suchupon thc Federal Republic isa matter for the appreciation of the Court.
But, if the two Governrnents donot think that they are calledupon to establish
thls point, it is certainly fhview that the principles andrules expressed in
Article 6 today have the character af general customary law.512 NORTH SEA CONTINENTAL SHELF
97. Apart from arbitrarjly and inadmissibly asking the Court to shutout of
its consideration a11the Staie practicc relating to median lines-a point already
dealt with abov+the Federal RepubIic advances three general objections to
the thesis that Article 6 expresses what is now customary law.
In paragraph 35of the Reply, whileconcedingthatthe equidistance "method'"
was incorporated in the Convention in the lighr of the experiencc made with
methods of delimitation in State practice and becausitwas considered to be
the most suitable for Itspurpose, tlie Federal Republic argues:
"A law-creatingeffectin customary Iaw, however, could be attributed to
the incorporation of the equidistance method into the Convention only if
that method was chosen and sanctioned by the Convention on the ground
that itwas the only one uniformly and consistently applied in the past."
On reading this statement, the Court rnay feel inclined to ask itself how
then the Federal Republic can reconcile its claim in the Mernorial that the
exclusive rights of the coastal State recognized in Articles 1 to 3 of Con-
vention arctoday generallyrecognized as customary law (Mernorial, para. 61)
with its concept of the conditions required for the formation of customary
law, asset out in the Reply. If anything iscertain, it is that theunilateral claims
made by States prior to the Geneva Conference exhihited more numesous and
more fundamental variations with regard to the nature and scope of the rights
of the coastal Statethan did the practOFeStates inthe delimitation of maritime
boundaries.
The process of the creation of customary law is one of the mysteries of the
law,whether ininternationai law or innational legalsysterns,and theconditions
for its operation cannot be redoced to the kind of simple formula propounded
by the Federal RepubIic in the above statement. Most authorities today, for
example, acccpt that the duration of the State practice needed forthc creation of
a customary rule rnay be fundamentally affected in some spheres by the ex-
istence of world-wide international organizations like the United Nations and
the SpecializedAgencies.The concentrated multilateral negotiations and taking
of legal positions in such organizations rnay, it isrecognized, grmtly accelerate
the process ofthe formation of international customary law. The rapid dcvclop-
mcnt of the law of outer space ia clear exampleof this phenonlenon, In much
the same way the United Nations processes of codification and progressive
development of international law, involvjng as they do discussion in the
International Law Commission, observations of Governments communicated
to the Commission, debates in the Sixth Cornmittee and finally full-scale
consideration by States at a world-wide multilaterai conference convened by
the General Asscrnblyrnay bring about a rapid recognition of a customary rule.
Otherwise, the Fedwal Republic rnay not find itmsy to sustainitsstatement in
the Mernorial about the provisions of Article1 to 3 of the Convention.
Especiallyrnay these United Nations processes accelerate the recognition of
a customary rule when the mle is implicitIydiswmible in the State practice, is
suggested alikeby the precedents and the nature of the matter in question and
jsthe one "most snitabk for its purpose".
The Federal Republic, it rnaybe added, distorts thefocusof the problem by
apparently trying to isolate the question of the recognition of the mle by the
adoption of the Convention from the work of the Commission and the State
practice which followed the Ceneva Conference. The formation of customary
law is a composite process.
98. Secondly, in regard to the State practice since thGeneva Conference,
the Federal Republic contends in paragraph 49 of its Reply:l COMMON REJOLNDEROF DENMARK AND THE NETHERLANVS 513
"To sustain the argument that the rules contained in Article 6 had
become customary international law, the Counter-Mernorial should have
shownthat the equidistance method was applied in recognition of an
obligation#Oapgly that methodas the 'geneualrule'There Is,however, no
evidence ofsuch a practice." (Italics in the original.)
The opînio juriof States evidencing a customary rule is more oftenmani-
fested tacitly thxougconduct than by express words and is primarily a matter
of the appreciation of their acts. Accordingitseems a somewhat extravagant
assertion to say that there is no evidence afpractice evidencing opiniojuris,
when Statesnot parties to the Convention, likeNorway, Belgiumand Iraq have
automatically considered the principles in Article 6 to be applicable to their
coast. Nor js expresscvidencelacking when Norway, a non-party, reptoduces in
her delimitation treaties th~~~issim aeubaof the Convention; and when the
BelgianGovernment drieslikewise ina Bi11proposed to the Belgian Parliament
at the same time explaining that it has decided to assert the rights of Belgium
over ilsdueshare ofthe conlinenfa1sheuof the NowihSea by means of that Act
of Parliament. Indeed, asshown in paragraphs 91-82above, there is more than
a littltraceof opiniojurieven in thc documents of the Federal Republic itself,
It may be added that here again the Federal RepubIic seems ta distort the
focus of the problem before the Court since the question at issueisrather the
exclusiverights of the coastal Staover its adjacent continental shelfthan any
matter of obligation.
99. Thirdly, the Federal Republic relurns in paragraphs 45 and 50 of the
Reply to an argument already advanced in the Mernorial concerning rescr-
vations to Article 6 of the Convention (Menlorial, paru. 52 and 55). This
argument is that, since the Convention permits reservations at the time of
signature, ratification or accession to articles other than to Articles 1 to 3, it
must beassumed that the Geneva Conference reçognized that the other articles
and, in particular Article 6, did not constitute customary law. In the Counter-
Memorials, however, the two Governments pointed out that a wide freedom
to formulate reservations is quite normal in general multilateral treaties,
including codification conventions, and that this is onIy for the purposeof
facilitating thmaximum number of acceptances by allowing States having
special difficulties to make reservations. They further pointed out that the
freedom to make reservations is, iir any evcnt, subject to the over-riding
condition that the reservations are compatible with the object and purposof
the Convention; andthat, In consequerice, fceedorn to make reservations is
by no means inconsistent with the recognition of the main principles of the
provisions in question as çustornary law. In this connectionthey noted that
such major codifying conventions as those on the TerritoriaSea and Contig-
üous Zone, the High Seas and Diplornatic Relations contain no clause re-
stricting the making of rescrvations. They added that in the present instance
the reservations clause had ben introduced in Article 12 of the Continental
ShelFConvention for the purposc more of prohibiting reservations to Articles 1
to 3 than of legdizing mservations to the remaining articleand that the fact
that reservations to Article4 to 7 are not excluded in no way irnplies that
those articles were not considered to ban integral and important partof the
Convention.
The Federal RepubIic, while not contesting the general truth of those
observations, says that they do not touch the crucial point and that it cannot
be coritended that expresspermission PO formulate reservations is-irrelevant.
Statingthat the crucial issue in the present disputisthe question whether514 NORTH SEA CONTINENTALSHELF
Article 6 creates generally binding lawby the mere fact that the Convention
haç kn aocepted by a suficient number of States, the Federal Republic
argues:
"This cannot be the case for the simplc reason thata rulecontained in
an Article of the Convention to which reservations are permitted and
reservations have already ken made by States parties tothe Convention,
could not at the same tirne become binding on other States not parties
to the Convention which had not ken in a position to contract out of
such a rulel."
From thisit further argues that a non-party could only become bound by
the principles expressed in Article 6 if it has accepted them by customary
application.
This argument greatly oversimplifiesthe question. In the firstplace, it again
isolates the recognition of the equidistance-special circurnstances rule in the
Convention from its wntext-the prior pracrice in maritime delimitations, the
prior work of the Commission, the attitude of Governments io the Commis-
çian's proposals and the suhsequent piactice of States consonant with the
principles exprcssed in Article;S. Again,as aIready stated, a EacultyComake
reservations does not include a faculty to make reservations incompatible
with the object and purpose of the treaty. In the present instance this would
obviously mean that any reservation in regard ta Article 6 which is incorn-
patible with the recognition of the exclusive sovereign rights of the coastal
State over the continental shelf adjacentto its coast would not be consistent
with the faculty to make reservations provided for in Article 12. Since the
equidistance principle js by its very nature linked to the concept of adjacency
to the coast,it by no means follows that, by admittiny a faculty to make
reservations to Article 6amongst other articles,the GenevaConferenccintended
to recognize an absolute freedom for parties to the Convention to "contract
out" of the equidistance-special circurnstances rule. Furthermore, the distinc-
tion,which the FederalRepublic apparently seeksto draw between an express
and an imriliednower to make reservatians-no doubt in order to escape the
fact that rekrvations areimpliedly admittedtosuch great codifyingconventions
as the TerritoriaSea, High Sras and Diplornatic Relations Conventions-does
not really affectthe substance of the question. The provisions of thcse convcn-
tions are today regarded as expressive of gcneral rules of customary law
despite the fact that, in principle, the faculty existsto make reservations which
are not incompatible with the object and purpose of the treatics and tbat
reservations have been made by some States to particular articles.
100. As to the reservations which have actualIy ben made to the Conti-
nental Shelf Convention-by France, Venezuela, Iran and Yugoslavia, those
wereanalysed in the Counter-Mernorials (Danish Counter-Mernorial, paras.93-
98; Netherlands Counter-Mernorial, paras. 87-92).
The two Governments there showed that in none of those cases did the
State concerned seek to reject the equidistance principlc as the generarule;
that Yugoslavia rnerclystated that she recognized no "special circumstances"
which could affect her own delimitation; that Iran merely stated her under-
standing of the "special circurnstances" cIause with reference to possible
delimitations of the boundaq from the high-waier mark; and that the other
two cases France and Venezuela by the terms of their reservations assumed
Reply, para. 46. ÇOMMON REJOINDER OP DENMARK AND THE NETHERLANDS 515
the gencral applicability of the provisions of Article 6, while declaring their
position as to tlic existence of special circumstances in particular areas off
their coasts. Accordingly,they feltjustifiedinconcludingthat thesereservations,
so farfrom weakening the character of the.equidistance principle asa general
rule, merely served to confirm it.
Inparagraph 50 of the Reply the Federal Republic clalms that this is "a clear
misinterprétation" of the reseniations of France, Iran and Venezuela "and of
the purpose they should serve". It asserts:
"The very purpose of these reservations was to prcdude other States
from invoking Article 6 and claiming the equidistance line if "special
circumstances" were not ~cognized. Thc three States wanted to exclude
any claim to an cquidistance boundary within the defincdareas in reliance
on Article 6. Thcrefore, these reservations are certainly natrecognition
of the primary role of the equidistanoe principle; on the contrary, they
go to showthat thc rulescontained inArticle 6 werenot thought acceptable
within the areas defined because Article 6 might be interprcteas it is in
fact done by the Counter-Mernorial, in a way which establishes the
principle of equidistance as the 'generalrule'."
This assertiokars no discemiblerelation to the content oIran' rsservation
of whichthe Federal Republic itself saidin paragraph 55 of the Mernorial that
ii"is not of interest here".
As to France and Venezuela the Eederal Republic itselfrecognizes that it is
only with respectto certain "defined areasof their coasrsthat those States have
made anyreservation at al1 to Article 6. In regard to the "dehed areas" both
States make express reference to "special circumstances" as being the buis
of their ~cservations.No doubt by invoking "special circumstances" in the
form of a "reservation", theyintended to excludeany obligation forthemselves
to have Article 6 applied to them excepton the basis of the recognition of the
existence of "special circumstances" in the "definedareas".But that does not
alter the fact-which rather itemphasizes-of their recognition ofthe provisions
of Article 6 as the generally applicable Iaw. The Federal Republic says that
these two States made their rescmations with respect to the "defined areas"
because they thought that "Article 6 might be interpreted,as it is in fact done
by the Counter-Memorials, in a way which establishes the principk of equi-
distance as the 'generainile'". A more natural andmore objectiveexplanation
of the action of these States in including their reservations would bethat fhey
~htms~lves inferpreted Article 6 ina way wwhich .stablishes the principle of
equidisfanccas 11ie"generalrule".
101. In paragraph 54 of the Reply the Federal Republic has gven a new
twist to its argument regarding the faculty to make reservations. It says that
in consequence of its repeated pratcsts and reservations al1 the North Sea
Statesknew that it doesnot recognizethe principlof equidistance as applicable
for the delimitationof its continental shelf. Then it arguas follows:
"Ifit was permissiblefor the parties to the Continental ShelfConvention,
to exdude, by way of areservation under Article 12, the application of
the principleof equidistance to certain areasbefore its coaasdid France
in its reservations with respect to certain parts of its Atlantic and North
Sea coasts, why should Germany be forbidden to make a similar declara-
tion with respect to the continental shelfkfore its North Sea coast? If
Germany were obliged, as the Counter-Memorial contends, to accept
the rules contained in Article 6 of the Convention ascustomary interna-516 NORTH SEA CONTINENTAL SHELF
tional law, this obligation could evidently not be more stringent than
for States which have ratified or acoepted the Convention, but may attach
reservations to Article 6 excluding the applicability of the equidistance
principle for certain maritime areas beforc their coasts."
This argument is anoîhcr example of the Federal Republic's ambivalent
attitude towards the Continental Shelf Convention, While always keeping
the argument on the plane of c~rsfomary law, it rejects the relevance of those
articles it does not like but asserts the relevance of those it does like-even
essentially confractualarticles like Article 12.
102.The law of rcservations forms part OFthe yeneral law of treaties and is
govemed bythe principles of mutual consent and of good faith. A reservation
to amultilateral treaty requires the express or irnpiiedconsent of another party
to the treaty if it to be ~onsideredas established with respect to that party.
When the other party has objected to the reservation, the treaty itself does not
corne into force between the two States concerned unless the objecting State
has indicated a different intention; and in the latter event the provisions to
which the reservation relates do not apply as between the two States (see
Articles 17and 19of the Vienna Draft Convention on the Law of Treaties).
Accordingly, if the Federal Republic is to indulge in the rnake-believe that
ithas made a reservation to a Convention which it has not ratified, it must at
the same time rnake-belieuethat jts reservation has been objected to by both
Denmark and the Netherlands; for each of these States has unequivocally
rejected any claim by the Federal Republic that there is a "special circiim-
stance" in the present case andanj: claim by the Federal Republic to exclude
the application of the equidistance principlas ktween itself and the Federal
RepubUc. And what then? The Federal RepubIic would have done nothing
towards establishing that rhere is "a special circurnstance justifying another
boundary" in the present case andnothing towards establishing that it has a
better claimthan Denmark or than the Netherlands to points on the continental
shelf which lie ncarer to the coast of the one or the other country than to the
Federal Republic. At best, under this game of make-believe the Fcderal Re-
public might beconsidered as having negatived the application of the equi-
distancespccial circurnstancesclause as such in respect of the defined area off
the German North Sea coast. But in that event, on what basis is the Federal
Republic to lnvoke the legal concept of "special circumstances" at al]?
The Fccleral Rcpublic'ç game of make-believe is, of course, in itself in-
admissible; for there is a world of dikrence between the faculty to make a
formal reservation to a multilateral treaty and the faculty which the Federal
Republic seems to clairn for itselto interpret, as andwlreirit wiilsthe scope
of irsown rights under custornary law without regard to the exclusive rights
vesteciby that sarne customary law in other States. A reservation isa formal
act which, subject to the consents of the other States concerned, establishes
deJizitiv teellegal position of the State concemeci on a confractual plane,
atthe marnent when it &cornes a party to the treaty and thsreby entitled to
the rights provided for by the treaty. But the faculty ciaimedby the Federal
Republic seemsto beof a quite different kind and to invoke a power, outside
thc treaty, to adjust and modify the formulation of its legal position at any
chosen moment according asthe situation demands.
103. The Federal Republic, as pointed out in the Counter-MemoriaIs
[Danish, para. 77; Netherlands, para.71) voted in favour of the texof what is
now Article 6. Moreover, in an "explanatjon of vote", the deIegation of the
Federal Republic stated that, when a certain Venezuelan amendment had been518 NORTH SEA CONTINENTAL SHELF
that "the Gcrman attitude at the Geneva Conference cannot \se properIy
appreciated inretrospect from the present dispute". Continuing, it says that
the Federal Republic could not possibly know that Denmask and the Nether-
lands "would go so far as to maintain that the acts of unilaterd delimitation
of theis continental shelfareas by the equidistance line 'arc prima jàcie not
contrary to internationd law and are valid with regard to other States' (Danish
Counter-Memorial, para. 59, p. 177, s~~pra; Netherlands Counter-Mernorial,
para. 53, 331, srip~a)and to interpret Article 6 of the Convention in such a
way (see Danish Counter-Mernorial, paras. 126 et seq.,pp. 203 et seq., supra;
Netherlnnds Counter-Mernorial,paras. 120 ef seq,pp. 356,et seq.,supra) as to
reduce the importance of the reservation of 'specialcircumstances'practicallyto
nothing"'. The Federal Republic's delegation, it adds, voted with the rnajority
who were in favour of Article 6because it "regarded the ruIe contained therein
aisoasa workable solution, providedthat its interpretation wouldpay due regard
toits purpose, namely to reach anequitable solution of the boundary problem".
Finally,itpoints out that "in 1958,the delimitation problem had not ken the
main German concern", but rather the possible prejudice to freedom of the
high seasand fisheries; andthat this is whyitssignature was accompanied by
a reservation to Article 5but not ta Article 6.
105. These statements are quite unconvincing as explanations of its change
of front with respect to the principles in Arti6.In the hst place, as indicated
in the Danish Çounter-Mernwial (paras. 73-74) the Federal Republic had
everyreason to know how the Government of Denmark would be lkely to
interpret the principles expressedin Article 6.In a Note Verbale of 13 May
1952to the Secretary-General commenting upon the Commission's proposals,
the Danish Government expressed its support for the median line principle of
delimitation, then specifiedonlyfor oppositeStates(Danish Counter-Mernorial,
para. 63; Netherlrtnds Çounter-Mernorial, para. 57).Jt atrachcd to its Note
Verbale a sketch rnap illustrating itç interpretation of the Commission's
proposals whenapplied fo the Da~iish const~.The Note Verbale, infer alia,
stated expressly:
"This sketchis primarily based on the boundaries fixed on 3 September
1921betwee~tDaiiishandGerrnanferrirorial waters easland west~JJutl~nd,
and the boundary fixed by agreement of 30 lanunry 1932 betwecn Danish
and Swedisbwaters in the Sound and the prolongation of these lines eom-
biriedwiih the median liiie, where the latter isapplicable, and oiherwise
bascd oi?platreformirig the locusofpoir8ts closerio Denmarlc than to aizy
afher çotmiryinilolilel."(Italics addcd.)
The Note Verbale thus made it very clear that the sketch concerned the
Danish-German boundary, appIied the "median line" where relevant and
otherwise applled the principle of distance from the respective coasts-of
adjaŒncyto one coasrrather than to theother. The Note added that "the sketch
might serve as an illustration of a division under concrete conditions" and that
the "principles outIined" might also be applicable to analogous cases in oeher
geographical areas.
The Nate Verbale was printcd bath in the report and the Yearbookof the
International Law Commission and the map, alrhough not reproduced in
those publications, was obtainable from the Secretariat of the United Nations.
In addition, publicity wasgiven to the sketch rnap in the Danish press. The
sketch map, whiçhwasitself a mere concretisation ofthe principles statein the
Danish Counter-Mernorial,Annex 8. COMMON WOINDER OF DENMARK AND THE NETHERLANDS 519
vote Verbale, depicted Denmark's continental shelf boundary vis-A-visthe
Fédcral Republic almost precisely in thciform in which it is depicteinthe
maps beforc the Court as representing the equidistance boundary htween
Denmark and the Federal Republic. In the Reply the Federat Republic has
not made any suggestion that it was unaware of the existence either of the
Note Verbale or of the map.
Accordingly, the claimin paragraph 26 of the Reply that in 1958the Ecderal
Republic "wuld not possibly know" how Denmark would interpret the equi-
distance-speçial circumstances mle in practice simply camotbe acceptedfor
one moment.
Nor, in any event, coulditk accepted that the Federal Republic "couEd
not possibly know" in 1958 ihat the equidisiance-special circumstancesrule
would be interpreted byDenmark and the Netherlands iii the way which they
have done, whenthatis precisely bhway inwhichal1theotherNorth Sea States,
other thanthe Federa Rlepubli hc,veailiomatically proeeeded Ezferpretil.
The sme applies to the cornplaint that the Federal Repubric could not pos-
sibly know that Denmarkand the Netherlands would go so far asto maintain
that the unilateral delimitation of their continental shelves by the equidistance
line areprima façienot contrasyto international lawand are validwith regard
to other States. Why should this beso far outside the perspectiveof the Federal
Republic in 1958whenit is the natural consequenceof the provisions of Article
6 in the absencoef special circumstances or an agreement to the contrary?
Why, again,should the Federal Republic be so littie in a positito foresee
an intcrpretation of Article 6 whiisthe very one that has been adopted by
i other States-by Belgiumand Iraq for example? Why, furthermore, should the
Federal Republic beso surprised that n State rnight think taaconscientiauç
attempt to derimit its continental shelf in accordance with the generally recog-
ni& principles governing the matter would lx prima focienot contrary to
law and valid in regardtoother States?
196. Consequently, the observations of the Federal Republic in paramaph26
of the Reply do nothing to explain away the inconsistencies in the Federal
Republic's attitude towards the principles cxpressed in Articlof6the Con-
vention. Equally, theydo nothing to diminish the siyiificance of the recognition
at first given by the Federal Republto the provisions of Articleasthe em-
bodiment of the generally acccpted principles and rulof internationalIaw
applicable to the delimitation of continental shelf boundaries. Since the Federai
Republic now places its case on the basis of customary law supplementeby
an alleged "general principle of law", its recognition prior to the present
proceedings of the principies of Article 6, which are incompatible with that al-
leged "general principle", is doubly significant.It Is significant, first, in regard
to the determination of the question whether the principles in Article 6 are to
be regarded as forming part of the customary law of the continental shelf on
which the Federal Republic relies. Sccondly, it is significant inregard to the
determination of the question of the applicability of the aileged "general
principle of law" calling for the division of the continental shclf on the basis
of "justand equitable shares" indepe~zdet of~ikyprInc@Jm in Article 6. The
attitude adopted by the Federal Republic at the Geneva Conference and iits
practice after the Conference is compatible, it is clear, only with the fist
questio~being answeredin the affirmative,and thesecondin rhnegatdve.
107. The attitude adopted by the Federal Republic towards the principles
in Article at and after thGeneva Conferenoeis significantalso froanother
point of view. The remarkable featureof the Federal Republic's action ithe
present disputesas previouslyobservedinparagraph 103above,isthat although520 NORTH SEA CONTINENTAL SHEW
it began by recognizing thc applicability of the principIein Articlc 6 and al-
though these principles containa specificground on which, under certain con-
ditions, a right to derogate from the equidistance principle may be established,
in fkepresentproceedirigsia hasshown Q decided reluctai~cctu askforadecision
upan ~hatground. Under the pressurcofthe argumentsin the Counter-Mernorials
a tentative-purely subsidiary-invocation of the "special circumstances"
clause, has crept into the Federal Republic's Subrnission 2 (cl,after finding
no place in jtssubmissions in the Memorial. Whcn the Court recalls the earlier
attitude of the Federal RepubIic and its earlicr invocation of the clauseinits
practice, it may feel that the only rational explanation is that the Federal
Republic itself has corne to tliink that its own case-the "defined area" off
its own coast--cannot possibly be brought within the meaning of the "special
circurnstances" exception recognized in Article 6 of the Convention.
Section IV. Thc Aileged GcneralPrincipleof Just and Quitable Shares
108. The Federal Republic's subrnission, that the delimitation of the con-
tinental shelf in the North Sea is governedby the principle of "just and equi-
table share" was strongly criticized by the two Governments in their respective
Counter-Mernorials on two main grounds. First they objected that it lacks any
Framework of legal criteria by which to determine what is just and equitable
and that the submissionis,in consequencc,tantamount to askingfor a delimita-
tion ex aequo etbono. Secondly,they pointed out that the concept of the sharing
out of the continental shclfas ifwere a cornmonspaceto be distributed among
the coastai Statesis in complete conflict with the whole legal approach to the
detemination of boundaries in international lawwhichisthat ofthe delimitation
of spaceon the basis of which State has established the "better claiin" to the
areasin question.
109. This alleged "general principle",of which there is no mention in the
Continental SheIf Convention, was expiained by the Federal Republic in the
Memorial asfalling under the head of "distributive justice" @ara. 30):
"If goods or resources which are held in cornmon by several parties by
virtue of the same right have to be divided up between these parties, ia is
recagnizcd principlein law that each of these parties is entitleto a just
and equitable share which is to be rneted out in accordance with an ap-
propriate standard equally applicableto al1of them, This principle, here
after calIed the principle of thejustand eqiiifoble shareis a basic lcgal
principle emanating from the concept of distributivejustice and a generalIy
recognized principle inherent in al1 legal systems, including the legal
system of the international comrnunity. Nobody would probably deny
the convincing force of that principle; therefore, it is not surprising that
ithas been applied in international situations of the same kind asmatter
of course." (Italics in the origina1.)
The Federal Repubiic then went on to clairn that this principle had been
applied in the State practice rcgarding the continental shelfinthe period be-
twcen 1945and the Geneva Conference (para. 31).
A little later in the Memorial(para. 37) the FederaI Republic insisted that
the alleged principle is one of "iawand not mereiy one of eqaity", because
"its substance derives its binding force from the legai conviction of the inter-
national community". Then it added:
"It could be regardedas an ernanation of the priricipIe of equalityof
States: the just and equitabIe sharto which each State isentitled must be
measuredby a standard equally applicable to al1of them." COMMON REJUINDER OF DENMARK AND THE NETHERLA~S 521
110. Oneof the throe pillars on which the FederaL Republic sought to restits
"general principle" in the Mernorial-the "equality of Statesv-seerns tu have
disappeared from the Reply. Thc two Governments pointed out in their re-
spective Counter-Mernorials that the alleged "gcneral principle", so far from
king an "emanation of the principle of the equality of States", violates this
principle (Danish Counter-Memorial, para. 159; Nethcrlands Counter-
Memorial, para. 154). In the present context thc cquality of States means their
equality before the law-their right to the even-handed application to them of
the relevant rules of international law on the same basis as ather States. The
Federal Republic, however, invokeo its so-called "general principle" for the
very purpose of withholding from Denmark and the Netherlands the delimita-
tion of their continental shelveson the basis of thgenerallyapplied principles
and rules; and of requiring them to have those delimitations made under a
system of legal rulesdifirenfuom thabunderwhickother NorthSea Stnieshave
had the delimituiions of iheir continentasheu boundariesdetermi~zed.At any
rate, in the Rcply the principle ofthe cquality of Stanoslonger figures apart
of the parentage of the alleged general principle of "justand equitablshare".
111. As to the practice of States, the two Governments sh~wed in their
respective Counter-Mernorials that in fact the Staie practice, both before and
after the Geneva Conference, consistently reflectsthe concept of the delimita-
#ionof'fhehoundciriesof coastalStaresin theiradarent aveas ufcotziinentalsheif,
notiharof dividing tia cornmonaren of confirieiltasheJflike a cake. This iso
plain from the terms of the various proclamations and treaties that theFederal
Republic seems to have thought it wiser in the Reply notto ask the Court to
consider in detail whether theterms of the various proclamations and treaties
in fact reflect its concept of skaring out the shelFora concept of delimiting
boundaries, Inparagraph 12 it finds no other expedient than to make an ex
cathedw reassertion of its contention while ignoring the many Indications in
these proclamations and treaties that it is the delimitation of boundaries, not
the division of spnils which is the basis of the law in this matter.
1 12. At anyrate, in Chapécr1of the Reply it isArticle38,paragraph(1) (c),
of the Statute of the Court which is put in the forefront of the Federal Re-
public's argument as the legal source of the so-called principle of "just and
equitable share". The Federal Republic, itseerns,now recognizesthat, in order
to convinçe the Court of the relevance of its "principle", somethinp more is
needed than its own bare assertions in the Memorial. Accordinglg, in para-
graphs 10-13ofthe Rcply it tries to put thoseassertions into what may plausibly
pass for legal clothing:
"The arincinle of the iust and eauitable share as advocated bv the
Fedcral Repuhiic of~errnin~, belongs'tothe realrnof the gmeral principles
of law to which the internationaI"iu-ne isauthorized to recur in order to
avoid non liquet in cases where there are no rulcs oftreatyor customary
law at haad which might beapplied, or where these ruIes are so general
that they need supplementation. The doctiinary question whether the
general principlesof Iawarea formal or merely a material source of inter-
national law, can be left aside here, because the Court is expressly au-
thorized, by Article 38 (11,lit. (c), ofStatute, toapply not onIy treaty
or customary law, but aIso general principles of law recognized by al1
nations for the legal solution of controversil."
l Reply, para. 10.522 NORTH SEACONTINENTAL SHELF
Nere itcallsIn aida passage from an article by SirH. Lauterpacht in Sym-
boIae Verzijl (1858)entitled "Somc Observations on the Prohibition of 'Non
Liguet'and the Completenessof the Law". This passage,howcvcr,doesno more
than make a strong plea for the recognition of thc significanceof Article 38 (1)
(c) ofthe Statute with regard to the completeness of the legal order and the
avoidance of a non liquet. Ttisentirelygeneral and contains nothingtoindicate
that, in the viewoEJudge Lauterpacht, the situations in the present cases would
cal1for the application of a "general principle of law" within the meaning of
Article 38 (1)(cl;nor does it contain anything to indicate that, in his view, the
application of the so-called principle of just and equitable share in the present
cases could passibly be a legitimate use of the Court's powers under that
provision of its Statute.
The argument of the FederalRepublic then proceeds:
"Today it is generally accepted that general principles of law racognized
by al1nations form part of international la; theare the ourcome of legd
convictions and values acknowledged al1over the world. Some of them
may cven impose themselves as having an inherent, self-evident, and
necessary validity."
Here it calls in aid another artide from the Symbobe YerzijI(1958)-by Sir
Gerald Fitmaurïce and entitled "The Formal Source osf InternationalLaw".
But this again does no more than examina "general principles of law" in
general terms and to provide a text for the statement that "some may even
impose themselves as having an inherent seIfaident and necessarq.validity".
It does nothing to support the view either that the presentcascs cal1for the
application of Article 38 (1)(c) of the Statute or that the application of the
so-calledprincipleof theG'jusand equitable share" could possibly be legitimate
in the context of these cases.
113. Theargument of the Federal Republic seems, in the finalanalysis to be
that which isfound in paragraphs 12and 13.The earlier paragraphrms:
"It is the function of the principle of the just and equitable share to
supplement the emerging law on the continental shelf. While it had been
gradually recognized in the practice of States that every coastal State has
@sujure an exclusive right to the seabed and subsoil of the submarine
areas 'adjacent' to its coa(cf.Articles 1and 2 of the Continental Shelf
Convention), generally accepted rules on the delimitation oa continental
shelf adjacentto more than one State were, and still are, lacking. It had
been show in Part TI,Chapter 1,of the German Mernorial (cf. paras. 29-
38, pp. 30-36supra) that the practicof States as welas the authorsof the
Continental SheK Convention started from the premiss that any rule,
method or formula for the doliniitation oa continental shelf adjacent to
thecoast of two or more States shoufd apportiona just and cquitabIeshare
toeach of these States. That this was the raison d';ire of the formulation
of Article 6, paragraph 2, of the Continental Shelf Convention, had been
totally ignored in thearguments put forward by Denmark and the Nether-
' lands in favour of the equidistance line."
This passage contains the ex cathedra reassertion regarding the State
practice which has been mentionedinparagraph I11 above.Sofarfromignoring
the raisond9EIreof the formulation of Article6,paragraph 2, the two Govem-
rnents,mcticuIously examined the State practiceand rneticulausIy traced the
formulation of the provisions of Article 6 from the Cornmittee of Experts
through the International Law Commission and the Geneva Conference to the COMMONREJOlNDEROF DENMARKAND THENETHERLANDS 523
text of that article; and they showed that the raison d'itre of its provisions
was not the sharing out of the continental shelf but the delimitarion of the
boundariesof the continentalshelf adiacent 10 each coastal Sfate. If any"ig-
noriog" ha occurred in tbis connection, it is the igmciringby the Federal
Republic of the plain and consistent meaning of the Staie acts, the proposals
of the Experts and the International Law Commission and of the text adopted
at the Conference in a sense contraty to its own assertions.
114.Paragraph 13,however, gives a slightlynew tum to the argument:
"Article 6, paragraph 2,of the Continental Shelf Convention was but
one cauticiusstep in the attempt to findaformula whiçh might lead to an
equitable solution of the boundary problem; it is exaggerating to say
that Article6 had already 'translated this generalconcept into the more
concrete criteaia for the delimitation of continental shelf baundaries'
(Dan. C.-M,,para. 55, p. 175, supra; Neth. C.-M., para. 49, p. 329, supra)
becauseitofers nocriteriaas rothecir.cumstanceswhichalhw theapplicatbn
ojrke equidistaln icee,or whfchoreso 'special'as fojustfi anotiierboundary
line. Therefore, itnot surprising that the authors of the Continental Shelf
Convention by a verywise dccision put the agreementbetween the States
concerned inthe first place and thereby made it an obligation for the
Statesconcernedto seek a settlementprimarilybyagreement.What purpose
should this provision serveif one sidewere allowed to start negotiations
from the outset with the preestablished argument that the equidistancline
is the only applicable rule, without considering whether the equidistance
line would provide an equitable resdt? Byproposi~zgthegrincble ofthejmt
and equitable shwe as the controlling principle for the delimitarionof the
coniirientalsherj;the FederulRepubiicofGerrnanymks the Courttuprovide
the Parties withn guiditg lineforthe negotiation of an agreemenr.If the
Court. felt able to add some more precise criteria ro guide the Parlies
inthespecial caseof the North Sea (likethosc submitted in ParcTT,Chapter
llï, of the German Mernorial; cf. paras. 76-87), it would certainly help
the Parties ta reach agreement more easily." (Itdics added.)
I
This paragraph seem to the two Governments to besomewhat unclear on
the question whether the Court is being asked to oust the equidistance-special
cjrcumstances rule altogether as a rule applicable as between the Parties orto
direct tliat the principle of "the just and equitable share" should beregarded as
a principle controlling the application of that rule. Rut, however the matter is
put to the Court, the two Governmcnts are strongly of the opinion that the
Federal Republic's whole thesis regarding the application of the principle of
the "just.and equitable share" as a "general principle of law" within the
meaning of Article 38 (1) (c} of the Statute is, in the circumstances of the
present cases, without any foundation whatever.
115. The two Governments will assume, for the purposc of the argument,
the existence of a çeneral principle oflaw of the kind alleged by the Federal
Republic. ln doing sa, however, they miist express every reservation on that
point; for despitetlie extreme importance which it givesto this principlein its
argument, the Federal Republic has made not the slightest attempt to demqn-
strate the exisiencçor the nature ofsuçh a "general principle"or the categories
of legal titles with rcference to which it may have application. The Federal
Republic has simply asserted that the alleged principle has an "inherent,
self-evident and necessary vafidity".This bcing so and the allegcd prin~iple
beingwhollyincompatible withthe "legal convictions" of States in international528 NORTH SEACO~TINBNTAL SHELF
128. It remains to exmine further the statemcnt made above that the ap-
plication of the "special circurnstances" clause leadto a deviation frorn the
strict equidistance boundary. No doubt it is because the exception is applied
only when the geographical configuration does not constitute an adequately
"solid geagraphical cannection" (Reply, para. 60) betwcen the contincnial
shelfand the territoryofthe State concerned that the following suggestion was
madeby Mr. Kennedy, the United Kingdom DeIegate atthe Geneva Conference
(Oficial Records, Vol. VI,p. 93):
"he suggestedthat, for the purposes of drawing a boundary, islandsshould
be trcated oii their merits, verysmall islands or sandcays on a continuous
continental shelfand outsidc the belss of territorial sea being neglected
as base paints for rneasurement and having onIy their own appropriate
territorial sea".
A dclimitationon these lineswould bc illustrated by the Agrecment between
ltaly and Yugaslavia as this is understood by the two Govemmcnts. According
to the information received the contemplated boundary is a "median" equi-
distance line rnodificdia fcw placeson account of problems presentcd by cer-
tain small islands @ara. 67 above). Such a merhod of delimitation shows that
the mle of equidistance is in principle applicable even If certain corrections arc
made with regard to particular basepoints and wiIlalways furnish a suscicient
legal basis for the determination of a boundary.
129. The special circumstances clause as interpretedby the two Govern-
ments will always offer a criterion ptoviding obiactive directions for the deter-
mination of the Iine of the boundary. This wouId not ke the case if the inter-
pretaîion invoked by the Federal Republic of Germany were accepted. The
consequences of the interpretation af the Federal Republic appear in theGer-
man Submission 4 (RepIy, p. 435, supra), the single operative submission. As
pointed out in paragraph 25 above, the su-called principle which the Federal
RepubIic asks the Court to decIarein Submission 4 siinplydoes ~iotfurnishany
basis for determiningthe boundary by agreement. To intarpret the "spacialcir-
cumstances" clause in a manner which daes not provide fora dclimitation based
uponlaw ~annot be correct.
Ttis in conformity with this cornpletclyvague interpretation of the "special
circurnstances" clause givenby the Federal Republic of Germany-and indeed
with its whole position in the case-chat in the Rcply the Fcderal Republic
does not even try to indicate, what actuai bouiidary liitdaims to be entitled
to as a matter of right. It is therefore dificult to understand how in paragraph 31
of the Rcply, the Federal Republic can Falkof "the disputed area" vis-A-vis
Denmark. It does not appcar that there is any specificarea with regard to
which it can be said that there are conflicting claims ofright.
Section II. The Absence of Any "Special Circumstances" in the Cases
Before the Court
130. In considering the question whether in the casesbefore the Court special
circumstancesjustifyanother boundary line,it would benatural firstto ascertain
whether on the one hand the Danish continental shelf in the North Sca and
whether on the other hand the Nctherlands continental shelf in the North Sea,
both delimited according to the equidistance principle may legitimately be
regarded as continuations of thc territorieof these two States respectivelyIf
this is so, the Federal Republic of Gerrnany (Rcply, para.60) recognizes that
thesc two States have legal titIzsto these continental shelves. According to the
Reply the continental shelfmay legitimatelybcregarded asa continuation of the COMMONREJOINDBROF DENWARK AND THE NETHEKLANDS 529
tcrritory provided it has a solid geopraphical connection wirh and forms a
natural continuation of the territory. A glance at eaof the charts grcscnted
inthe casewillshowthat these conditions have beenfulfilled.Thiis particularly
obvious in figure3 in the Danish Counter-Memorial (p. 213,supra) and in figure
4 in the Netherlands Counter-Mernorial (p. 366, supru),in which figures the
Danish and Netherlandscontincntal shelvesinthe NorthSea have beensketched
in such a way that they can be judged alone and without cornparison with the
continental shelf of the Federal Republic. Tt is notable that the Federal RP-
public of Gerrnunynorvherein its MemoriaJ or its Reply hm bec11ohdeto assert
rhadthe continental sheliresof Denmark and the Netkerlands deljmi~ed accor-
di~lg io the equidistancepriiiciple should nod in bhemselvesbë ~iornialand
jusi. Tn the comrnentary to the above-mentioncd figures (Reply, para. 85) the
FederalRepublic recognizesfhat the impressiongiven by the geogrophicalfacts
shuwn by the iwo figures îsthut the Danishshare as welias the Nerkerkrtrds
share of the continental shelf in the Norfh Sea are pevfecrly normal, though
it goes ontaadd ihafcumgaredwilh the Gertnanskare cnlciilatedin relafion to
the respective coastlines,they are no!as "nnrmal"as they shouldappear.When
the Federal Republic of Germany nevertlicless invokes special circurnstances,it
builds upon two wholly different and seerninglyirreconcilable points of view.
131. The Federal Republic argues from thc principle laid down in the
Reply, paragapli 82, that if geographical conditions bring about that an
equidistancc boundary will have the effect of causing inequitable apportion-
ment of the continental shelf between the States adjacent to that continental
shelf, such circumstances are "special" enough to justify another boundary
line. Paragraph 83 next asserts that the almost sectangular bend in the German
coastline will make the equidistance baundaries against Denmark and the
Netherlands meet before the coast of the Federal Republic, thcreby reducing
its share of the continental shclfin the North Seato a disproportionately small
part ifcomparcd with the shares of the other North Sea States. This way of
arguing must be rejected. As stated in paragraph 126 above, the special cir-
curnstances clause may have a comparativtly frequent application but thc con-
dition for applying it must be that a correction isjustified. The faci ihat
the Federal ReprabIicfids its urea too small con never jusrifya redraerioiiof
Denmnr;k's andthe Nedherlarids'arm nsthesp~rein themselvesrlngriestionably
fulIy"nnrmal" and "legitimaie". The Federal Republic apparently overlooks
the fact that Dcnmark and the Netherlands also have titles to areas of the
continental shelf under international lawwhichin tkei~.Icgal Basiare identical
tothat ofthe Federal Republic.Thc complete lack of foiindation of the stand-
point of the Federal Republic, as forrnulated in RepIy, paragraph 83,ismade
evident by examining figure 1 of the Danish Counter-Mernarial (p. 200, supra).
Whatever the reason why Middleland (the Fedtral Republic of Germany)
finds her shelareainsufiçient, Middleland cannot obtain compensation from
Rightland (Denmark) and Leftland (the Netherlands), since the areas of these
two Statcs are fulIy "normal" and "lcgitimate" as continuations of their res-
pective coasts.
132. The Federal Republic of Germany also attempts to invoke-however
tentativeiy and sketchily-the concept of "special circumstances" inanother
wny. In itReply, paragraphs 58-89,92, 95, and 97, the Federal Republic tries
to presenta picture in which itsequidistancarea depends upon spccificpoints
upon the coast, projecling points-or parts-or promontories. This picturc is
drawnwith niarked caution-slronger when discussed in a gcneral sense and
weakerwhennearerto theactual case.Thisstandpoint isrevealedclearlyinpara-
graph92inthe comments tofigure 5(Rcply,p. 430,s~/pra)adiagram whichobvi-530 NORTH SEA CO~ENTGL SHELF
ousIy isahighlysimplifiedilIustration of the case before the Court. The Federal
Republic contends that "fwoprojecting parts of the coasfsof StoreA andStafe
C" (italics added) cause that the German share of the continental shelf, çal-
culated in accordance with the equidistance principle, is too srnall,
133. The only possiblerepIy tothis assertion is thit iscompletely untcue.
Figure 5 has nothing resembling a projecting part which may influence the
equidistance line.Any true map of the area illustrates this still more clearly, and
the Federal Republic of Gerrnany has not given the siîghtest hintof wliatpart
is fo be comrderedas puojecting or whai influence onthe bouridary Iiizess~icha
part m@r Iiave.The equidistance lines between on the one hand Denmark and
the Federal Republic and on tlie other hand the Netherlands and the Federai
Republic have been drawn on the basis of coastal configurations fully in
conformity with the land inasses bchind them and the equidistance areas of
al1 threc States therefore becorne a natural continuation of the territory of
each State-in conformity with the general geographical situation. Neither
Denmark nor the Netherlands in themselves oret any foundation for a theory
based upon the effect ofa "projecting part".
134. But, as stated above, paragraph 92 of the Reply mentions twoprajecting
parts ofthe çoasts ofthe two counfries.As such parts are non-existent the only
way of understanding the argument of the Fcderal Republic of Germany is to
regard the Netherlands as a "projecting part" on the Danish-German coast
(whichruns north-south) and Denmark as a projecting part of the Netherlands-
Geman coast (which runs west-east). That this assurnption lacks reason is
evident at once. The crux of the entire argumentation is, however, that the
Federal Republic of Germany in paragraphs 59-61 of the RepIy givesan inter-
pretation of the "special circumstances" clause-viz. that certain pr~jeçting
parts are tobe disregardcd, thus correcthg the strict equidistance principle-
and then in paragraph 88 goes on to present the case &fore the Court as if
there wereprojccting parts on the coasts relevant in tcases before the Court.
Thisis obviouslyuntrue and this chain ofargumentdoes not afford any founda-
tion for the contention thatthere are specialcircurnstancesjustifying another
boundary Iine.
135. The fact is simply thatthe getieralcourse of rhese ardinary coastlines
leads to a result somewhat less satisfying to the Federal Republic than to
Denmark and the Netherlands respectively because the coastline of the North
Sea changes direction approximately in the middle ofthe German coast. But as
illustratedin figure I (Danish Counte~-Mernorial,.209, supra)eiitireldi'erens
courses 01ordinary coastlir~esmay leadto qui& sin~ilarresulfsThere is nothing
"special" in this. An adjustment of equidistance lines in casesof thjs nature
would lead to encroachments upon the fully legitimate continental shelf ofthe
adjacent State and rnean a general redistributionof shelf areasIt was never
conteniplated that the "special circumstances" clause should have such an
efïect andlead to aredistribution of the continenta1shelf which is not justified
in relation to the State from which part of thc area naturally appertainingto it
istaken away.
136.This Section has not deaIt with the German thesis that the Norrh
Seoassucl1 is"aspecinlcase".The reasonis hat although thisthesisisrnentioned
in the RepIy on several occasions, Itseems now to have becn given up. When
stating in the RepIy*paragraph 79, that the drawing of bnundaries must bc
"a joint conccrnofalÈ North Sen S~ufe~"(italics added) the Federal Republic
can only mean-as the comparatively small areas of France and Belgium have
neverbeenmcntioned-that thesharesof theUnited Kingdom and Norway must COhlMON RWOIN,DGROF DENMARK AND THE NETHERCANDS 531
be included in the evaluation. At the same time the Fedetal Republic of
Germany States jn paragraph 98 that the shares of these two States arejust
and equitable. Consequently, no arguments or conclusions can be deduced
from either the sizeof the shelfareas of the two States or from the delimitations
about which Denmark and the Netherlands respectively have agrced with the
two States in Treatics concluded with them.
Incidentally it may benoted rhat Infigure5(Reply, p.430, supra)-the graph-
ic version of the case which the Federal Republic now apparently prefers to
present to the Court-the terricones representing the North Sea States, the
United Kingdom and Norway, give an entirely misleading impression of the
situation as it actually existsin the NorSea .he whole object of the Federal
Republic now seems to be to isolate the delimitation of the boundarieof the
three States Parties to this disputfrom the delimitation of boundaries of the
continental shelfof the North Sea as a whole.
Consequently al1 the considerations sa much elaborated in the Mernorial
regarding the North Sea as aspecial casecan bc left out of account.
Section III. A Cornparisonktween the "Coastal Prontage''Concept
and theSpecial Circumstances Clause
137. Although the shortcomings of the "coastal frontage" concept have been
exposed in paragraph 26 above, it may be of interest ta compare the rule of
the Geneva Convention-the clause of specialcirçumstancesjustifyjng another .
boundary lin-with this concept.
138. As developed above, the clause of special circurnstances mustbc inter-
preted as a nile of law which justifiea correction of the strict equidistance
principlt in cases where its application owingto the existence OFspecial pro-
jecting coastal configurations-certain is1andsand peninwlas-would lead to
resiiltsnot in agreement with the general geographical situation. Thcorrection
of basepoiirfon thecoasflinnensuresthat each of the States isgiveacontinental
shelf which constitutes the true and actual continuation of the territory inta
the sea.The correction can be made in such a way that the boundary is drawn
according tothe equidistance principle but fmm a difereiit bnsis,more in con-
formity iviihthe geileral geographlc srlration.
139. The concept of the "coastal frontage" is also based on geometnical
deviarions from the actual geographic situation. But this deviation is-in its
basis as wel?as in the consequences drawn from it-completely dxerent from
the one envisaged in the Geneva Convention.
140.As will be seenfrom figures2 and 3 (Reply, pp. 427-428, supra)and par-
ticularly from figureA in this Rejoinde(p.470, supra),the tenor of "the coastal
frontage" concept is tliat the solid directionapositioioftha coasdis neglecied
aird thegeneral geograpliicsiaualioni.changed. The coastal configurations for
whichtheEêderdRepublic of Gerrnany wants adjuçtrnent are quite normal and
cxpress the general geographical situation. In other words-the parts of the
territories of the Netherlands and Denmark which are "cut off" For the pur-
pose of indicating the so-called "coastal frontages" of the two States are con-
sidwabIe portions ofthe solid mainlands. The "coastal frontage" ofthe Federal
Republic is simply aline through the North Sea with no relation to either the
territory or the Coastof that StatThe differenceherc from thc possible devia-
tion erivisaged in the Geneva Convention and accordinp to which certain
specificprojecting coastal configurations are left out of consideration is very
apparent.
141. Evenmore striking is the differenceato the consequenoesdsawn from532 NORTH SU CONTINENTALSKLF
the two kinds of deviation.IF according to the "special circurnstances" clause
a deviation ismade, sorne basepoints are disregarded and the bararidnryIi~is
delimitedby~pplicarian.of rJaeruleofequidistancebmed on oiher-and better-
busepoints.The deviation advocated by the Federal Republic results in the
so-called "coastal frontages", the sole function of which is that rlieproportion
of the iength of rhe "coastalfrontages" oJ the States involvedshall serve as a
correcfionof& sizes ofthe continentalshe/fdelimited accordittloothu critevia.
Neither the position nor the direction of the alleged "coastal frontage" has any
bearing on the ddemitation and consequently ao "coastal frontage" can ever
by itself givethe solution ta boundary question.
It isapparent that a concept ofthis kind has no connecrion with the pro-
visions of the Geneva Convention.
ScctionIV, IndividudObservations ofthe TwoGovernments
142. The DanishGovernmcn~ wants to supplement what has been developed
in Chapter 3, Section 1, of this Common Rejoinder by adding the fallowiag
observations bearing upon the interpretation of the "special circumsrances"
clause presentedby the two Governments and to be taken into account before
the conclusion formulated in paragraph 125:
(a)It should be examined what kind of geographical configurations willcorne
under the clause, when it is understood ta the effcctthat the correction of
the equidistance principle can take place onlifdeviation from the egni-
distancelineisjustifieidiowurdsborhSfaies-i.e., theSfate which"gains"
and the State whick"loses"by theçorrectioii(para. 123 above).In figure
E (opposire)two StatesA and B are fronting each other with the entisea
area between them forrning a continental shelf and wita small,insignifi-
ant island-possibly an uninhabited sand reef-belonging to State A
pIaced almost in the middle. Tnthiscase a delimitation OFthe boundary
betweenthc two States according toa strictapplication of the cquidistanci:
principlewould also take the island into account and an equidistance
boundary would thiis run much closer to State B than ta State A. Osten-
sibly this wouldbc in conformity with the ruleof adjacencyupon which
the equidistance principle is founded.But part of the continental shelf
which would thus be allocated to A could not be considcred a natural
continuation of State A's territory into the seand the result could not
besaid tobc in conformity wjththe generaIgeographic position.In a case
like this, the question of the application of the clause clearly arisesand it
rnay be that the strict applicationof the equidistance principle must be
corrected. In this event in disregarding the srnall insignificant island the
deviation from the equidistancc Iine wjll k just$ed not oriiyfawards
SlafeB but also towardsStafe A.
(b) Not only srnall and insignificant islmds but also geographical configura-
tions regarding the mainland coast may influence the delimitationinthis
manner and thus be considered a special circumstance justifying another
boundary line,Figure F (seep. 534,infraillustratesthe effectaftrueequi-
distance delimitation caused by a sharply projecting-but in itself insignift-
cant-part of the mainland coast and figureG (se p.535, infraillustrates
how this exarnplelargec lyrresponds to the example illustrated by figBre
in respect of an Island. Also in these instanacorrectioriof the equidis-
tance Iine seemsjustified. Thc reasonforthis, in relatioto State A and
StaceB, is exactly thsame as described in paragraph (a) above-that
the shelarea aocruing to StateA based on the peninsula is not a natural COMMONRFJOINDER OF DENMARK AND THE NETHERLANDS 533
Figure E
continuation of State A'sterritory, and the result aa whole is notin ac-
cordance with the generalgeographic situation.
lt should be noted that these conclusions are wholly in conformity with
paragraphs 59 and 60 of the Reply. These parag~aphs are designed to
prove rhat strict "propinquity" in itself is not al!-important. This holds
good in so faras concernsthe situations mentioned in the Reply, para-
graphs 58 and 60,which have ken examined and interprcted above.
In such instances a correction of the equidistance principleis called for
and the grounds on which it is done are embodied inthe "special circum-
stances" clause. This conclusionis also endorsed by the Reply in para-
graph61. In thc light of the statements in paragraphs 59-61of the Reply,
it is astonishing that the Federal Republic of Gerrnanyinvokcs the ap-
plication of special circumstances in relation to Denmark. To a certain
extent this arises from the fact that the Federal Republic laterin its Reply
also classeswhat are quitc differentgeographial configurations as special
circumstancesbut themainreasonis that whereit comments on the actual
case the Federal Republic of Germany uses the expressions "projecting534 NORTH SU CONTINENTAL SHELF
Figure F
part" and "projecting point"of a coast in an entirelydifferentandun-
realistway at variancewith the meaning ofparagraphs 59and 60 of the
Reply.
143. The Nerfrerlaiidi Coïernmendoes not consider it necessary in the
present Rejoinder to express jts opinion on the questio nhether tlie con-
figurationofcoastlinesorlierthanthc NorthSea coastlineof theNetherlands,
the FederalRepublicand Denmark, is suchas tojustifyparticulardeviations
from the taue equidistancelines. It would merelwish toreiteratewhat has
been staredin paragraph 145 of theNetherlandsCounter-Mernoriar lelaiing
to the Iow-tideelcvationcalled the "Nohe RifY. Tndeed jtis clear from the
map, in the Netherlands Counter-Mernorial{ that in this case a "pro-
jecting part" of the Federal Republic's coastline has automaticaIly been
usedas a basepoint for the determinatioof theboundaryline in accordance
with the equidistance principle, to the beneoftrrheFederal Republic. The
Secpockci insidebackcover. FigureG
Netherlands and the Federal Governments,though fully aware of the facl.
thatthe takinginto account ofthis,in itselftotally insignificant,low-tideeleva-
tion influencesthelocation ofthe boundaryline on the continental shelf over
a considerabledistance out into the sea, neverimagined tbat there could be
any question ofthe use ofthe "Hohe Riff" as a basepointfor the construction
of theequidistance line.
SectionV. Conclusion
144. In theopinion of thetwo Govanments, the only specialcircumstances
whichfdl to beconsideredby the Courtin the ccontextofthe presentcases are
geograpbicalspecialcircumstances.
Enthe lightofthe considerations advanred in the precedingsectionsof this
Chapter and of the interpretationof the special circumstancesclause which
theybelieve to be correct,the two Governmentscontendthat nogeographical
circumstance exislsin thepresmt cases,whichcotildpossiblyconstltutea sp~cial
circumsiatzcewithi~rhe rneaningofrhatclause. COMMONREIDENDEROF DENMARKAND THE NEMERLANDS 537
PART II. SüBMlSSIONS
In view of thefactsandarguments presented to the Court by the Govern-
mentsof Denmarkandof theNetherlands in theirrespective Lounter-Mernoriais
and in thisCommon Rejoinder, the two Governments severally reaffirm the
considerations andsubmissions presented by each of them to the Court in
Parî Illof their respective Counter-Memorials.
l In view of thossame factaand arguments and with regard to the delirnita-
tion ofthe boundasiesof the continental shelvkst, asbetween Denmark
ad the FederalRepublic and,secondly,asbetween the Netherlands and the
Federal Republic,
May it furtherpleasethCourt tu adjudgeand declare:
4. If the principand rules of internatiolawrnentioned in Subrnissi1n
of therespectiveLounter-Mernoriala arenot applicaasbetweenthe Parties,
the bouudaryis tobe determined betweethePartieson thebasisof theexciu-
siverights of each Party over the continentaladjacen ttitscoastand of
the principle that the boundaristo leave to each Party every point of the
continental shelf which lnearer to its coast than to the coast of the other
Party.
1 30 August1968.
(Signed) Bent JACOBSEN (Signeil) W.RTPHAGEN
Barristerat the Supreme Court Agent for the Eovernment
of Denmark of theKingdom of the Netherlands
Agentfor the Government
oftheKing&m of Denmark COMMON REJOINDEROF DENMARK AND Ta NETMERLANDS 539
PART ID- ANNEXES TO THE COWON REJOINDER
SUBMIIYEDBY THE GOVERNMENTSOF THE
KTNGDOM OF DENMARKAND THE KINGDOM
1 OF THE NETHERLANDS
1 Annex l
PROTOC OFPROVISION AAPPLICATI OPTHE FISHEWE CSONVENTION
(9Mach 1964)
The Govemments of Austria, BelgiurnDenmark, France, the Federal
Republic of Germany, Ireland, Italy, Luxembourg, the Netherlands, Portugal,
SpainSwedenand the United Kingdom of Great Britand Northern Ireland
Have agreedasfollows:
Article1.
The Contracti~g Parties will raise no objacGovernmentwhich has
ratifior approved the FisheriesConvention opeforsignature at London
on 9th March, 1964, applies provisionally the prooftheConvention,
having fkst notiitsd~cisionto the Governmentof tUnitedKingdom of
Great Britaand Northern %eland.
Article 2.
(1)The provisionaiapplication of the provisioFisherieConvention
by a Contracting Party will entail the establishment of the list of arbiters
provided for in Art1cof Annex II of the Convention.
(2)A Contracting Party which has provisionallyapplied the provisions of
the Convention shall be bound by its provisions, in particular Article 13, and
shall not objeifthey are invoked baGovernment which has signed the
present Protocand the Convention, evenif the latter G~vernmentnot
yet ratifiedor approvedthe Conventiona view to settlidisputeraised
bythis provisionalappiication.
Article 3.
Thepresent Rotocol shall be open for signature froMarch, 1964to
10th April, 1964. It shall enter into force, when it has been signed by two
Governmentsas betrireenthose Governments, and in respect of any Govern-
ment which signsit thereafter on the date of signature by that Government.
Article4.
(1Upon the entry into force of the Convention, the present Protocol shall
automatically Rase to haveeffectas betweenGovernments whic&corne
parties to the Convention.
(2) The prescnthoiocol wceaseto haveeffectIrespect of anGovem-
ment which notifiesthe Governrnofthe United Kingdom of Great Britain
and Northern Ireland of its decisionnot to ratify or approvethe Convention.
Article.
The Government of the United Kingdom of GreaBntain and Northern540 NORTH SEA CONTENENTALSHELF
Ireland shalimrnediatelyinform athe signatoriesothepresentProtowi
of eachnotificationreceivedin accordancewjth Article1 or with par2graph
ofArticle4.
Sn witness whereof the undersigned,being duly auchorisedtherhave
signedthe presentProtocol.
Done at London thisninth dayofMarçh 1964,in the Englisand French
languages,eachtextbeingequallyauthoritativeasingleoriginalwhicshdi
bprdepositedin the archivof the Governmentof the United Kigdom of
GreatBritainand NorthernIreland, whichshalttransmacertifiedtruecopy
toeach signatoryand accedingGovernment.
Forthe Governmentof Belgium:
(SignedJ. DETMER
For the Govemment of Denmark :
(Sigricd)NiIs SVENN~NGSEN
Forthe Government ofFrance:
(Signedl G.de COURCEL
For theGovernrnentof theFederalRepublicofGermany:
(Signedl HassVON ETZDORP
For theGoternment of Ireland:
(Signedl Sekn F. LEMASS
For the Governmentof Italy:
(Signed)P. Q~ARoNI
For the GovernmentofLuxembourg:
(Signed)A.J. CLASEN
For the Governmentofthe Netherlands:
(Signedl C. WVAN BQETZELAER
For the Governmentof Portugal:
(Sjgned} WumbertoALVESMORGADO
For the Governmentof Spain:
(Signed) SANT(=Ru2
For theGovernmentof Sweden:
(SigrzedGunnar HAGGLOF
For the GovernmentoftheUnited Kingdomof GreatBritain
and Northern IreIand:
(Signed)R.A. BUTLER COMMONREJOINDEROF DENMARK AND THE IEETM3lLANDS 541
EXCHANGE OF NOTES BETWEE NHE ROYAL DANISH EMBASS YT BONN AND
THE GERMAM NINISTR YE FOREIG &NPAIRS,
DATED 30 NOVEMBE 1967
Konigiich Danische Botschaft
Bonn, den 30.Novemkr 1967.
Ich hahe die Ehre, den Empfang JhrerNote vom 30. November 1967 zu
ktiitigen, die folgende WortIaut hat:
"Ich habedieEh, Ihnen im Namen der Regierungder BundesrepubWc
Deutschland folgendes mitniteilen:
Die Bundesregierung hat davon Kenntnis genommen, dass in Aus-
fühning desdanischenGesetzm Nr. 195vom 26. Mai 1965 mit Wirkung
vom 1. Juli 1967 eine Fischereizone vor dem K$tenmeer des Konig-
reichs Danemark errichtet wurde. Dies geschahinUbereinstimmmg mit
dem Europaischen Fischerei-'Ubereink dasmmvon,unseren beiden
Regierungen am 9. Man 1964in London untermichnet wurde.
Bei den Besprechungen, die am 22. und 23. August d.J. zwischen
Vertreternunserer beiden Regierungen stattgefunden haben,wurde Ein-
verstiindnis dariber erzielt, deine deutsche traditioq-le Fischerim
Sime der Artikel 3 und4 des oben erwahnten Fischerei-Ubereinkommens
in folgendem Urnfang vor den danischenKüsten besteht:
. .. .. .* .. .. .. A.
Die deutsche traditionelle Fischerei kann in dem oben bezeichneten
Umfang in Anwendung des Artikels 9 Abs. 1 des Londoner Fischerei-
Ubereinkommens im Gebiet zwischen3 3d 6Seemeilenvon der Basislinie
bis mm 1. Juli 1968fortgesetztwerden.Nach Ablauf diesesTages wird
diese traditionelle Fischerei in dern Gebiet zwischen 6 12dSeemeïlen
von der Basislinieweiterhinerlaubt sein.
Ais südliche Grenze der danischen Fischereizone soli vorlaufig die
jenigeLinie dienen, die in dem Vertragvorn9. Juni 1965 zwischenunseren
beiden Staaten über die Abgrenzung des FestlandsockelsderNordsee in
Küstennahe vereinbart wurde, Die Wahl dieser Grendinie beniht nicht
auf mhclichen Überlegungen, sondern sol1 ,nur zur Erleichtening der
fischercipolizeilichen ukrwachung für eine Ubergangszeit dienen. Die
endgültige FFescgung der südlichen Grenze der danisçhen Fischereizone
in der Nordsee wird spater durch eine Vereinbarung zwischen den beid~n
Regieningen erfolgen.
Ich erlaubemir vorzuschlagen, dass diesNote und die entsprechende
Antwortnote Euer Exzellenz eine Vereinbarungzwischenunseren beiden
Regierungen bilden solIen, die mit dem Datum Ihrer Antwortnote in
Kraft tritt und auch füdas Land Berlin gilt, sofern nicht die Regierung
der Bundesrepublik Deutschland gegenuber der Regiemng des Konimichs
Danemark innerhalb von drei Monaten nachInkrafttreten dieseVerein-
bmng eine gegenteiligeErkliirung abgibt."542 NORTH SEA CONTINENTAL.SHELF
Ich ha& dieEhre lhnenmitzuteilen,dassmeine~egiekng mit dernlnhalt
dieserNote unddamit einverstandenist, dassIhNote unddiese Antwortnote
eineVereinbarung zwischen unserenbejdenRegieriingen bilden soll, die ait
dentDatum dieser Note inKrafttritt.
GenehrnigenSie, Herr Minister,dieVersicherungrneinerausgezeichnesten
Hochachtung.
KNUTH-WINTERFELDT.
SeinerExzellenz
demBundesministerdes Auawàrtigender Bundesrepublik DeutschIand
Hem WillyBrandt. COMMON REJOINDER OF DENMARK AND THE NfTUERLANDS 543
(Translation)
Royal Danish Embassy
Bonn, 30 November 1967.
Your Excellency,
I have the honour to acknowledge the receipt of your Note of 30 November
1967, reading as follows:
"On behalf of thc Government of the Federal Republic 1 have the
honour to inform you as follows:
The Government of the Federal Repubiic has ben inforrned that a
fishing zone in the coastal waters of the Kingdom of Denmark has been
establishedasfrom 1 July 1967 pursuant to the Danish Act No. 195 of
26 May 1965.This took place inconformity with the Eriropean Fisheries
Convention signedin London by our two Governments on 9 March 1964.
During taiks between the representatives of our two Governments on
22 and 23 August this year, agreement was reached that pursuant to
Articles 3 and 4 of the above-mentioned Fisheries Convention thereisa
traditional Geman fisheryalong the Danish coast as follows:
.............. I
Within the limits outlined above, the Gerrnan traditional Fishingmay,
pursuant toArticIc 9, paragraph 1,of the London Fisheries Convention
be aliowed to continue in the arm ktween 3 and 6 nautical miles from
the baseline until 1 July1958A.fter chat date the tladitional fishing may
stillcontinue in anareabetween 6 and 12nautical milesfrom the baseline.
The boundary between our two States agreed upon inthe Tr~ty of
9 June 1965 concerning the delimitation of the continental shelf of the
North Sea in the costal areas constitutes the temgorary southern border
of the Danish fishing zone. This choice of borderlineisnot based upon
legal considerations but servesmerelyto facilitate fishing inspecaiothe
present time.A finaldetermination ofthe southern borderline of the Danish
fishingzonein the North Sea will take place later through agreement be-
tween the two Governmcnts.
I beg to propose that this Note and Your ExwTlency'sNote of reply
shall enter intaforceas an agreement between our two Governments as
from the date of your Note of reply and shall also appIy to Land Berlin
provided that thc Covernment of the Fcderal Republic of Gcrmany has
not made a contrary declaration to the Government of thc Kingdom of
Denmark within three months of the date of entry into force of thngree-
ment."
I have the honour to inform you that rny Government is in agreement with
the contentsof this Note and with the firoposal that your Note and this Note
of reply shall constitute agreement berneen our two Governments entering
into forceas from the dateof this Note.
Accept, Your Excellency,the assurancesof mylhighest consideration.
(S~~~~~)IKNUTH-WIN~ERFELDT.
Hjs Excellency
Minister forForeign Affairsof the Federal ~epublicIof Germany
Mr. Willy Brandt.544 NORTH Si34CONTINENTALSHELF
Annex3
Die deutsche Regiemng ist davon unterrichtet, dass der diiscFischerei-
minister eine Bekanntmachung nach $ 38 Abs. 4 des dhisçhen Fischerei-
gesetzes Nr. 195vom 26. hlai 1965erlassen hat, die die Absatze 2 und 3 des
§ 1 des danischen Fischereigesetzes mit Wirkungvom 1. Juli 1967 in Kraft
setzt. Hier ist bekannt, dass naAbsatz 7 des 8 1 des danischen Fischerei-
gesetzes Sondemgelungen mit fremden Staaten getroffen werden konnen, die
diese weiterhininbestimmten Gebieten der erweiterten dhiçchen Fischerei-
zone (12 sm) zur Ausübuundges Fischfangs berechtigen.
Die Bundesrepublik Deutschland und Danemark gehoren zu den Unter-
zeichnerstaaten des Londoner Fischereiükreinkommens am 9. Marz 1964.
Beide Staaten habcn auch das ProtokolIüber die vorlaufigeAnwendungdes
Ubereinkom-ns unterzeichnet. Für die BundesrepublikDeutschland ist zwar
zur Zeit das Ubereinkornmen noch nicht in Kraft getreten, mit der Hinter-
legung der deutschen Ratiîïkationsurkunde kann aber noch im Laufe dieses
Sommers, evtl. nochvordem 1. Juli1967gerechnet werden.Die Verzogerung
des Zustimmungsverfahrens istnur aus rein technischen Gründen eingetreten.
Die Bundesrepublik Deutschland ktrachtet sich schon heuran die Bestim-
mungen des Londoner Fischereiübereinkommens vom 9.3.1964 gebunden.
Aus diesem Grunde hat sie auchkeineEinwendungen gegen die Schaffung da
in dem Fischereiübereinkommen naher bezeichneten Fisçhereiregimes durch
Danemark erhoben (5 1 des danischen Fischereigesetzes). deutschcRegie-
rung reclmet andererseitsdamit, dass die diinische Regierung bereits bei der
Vurbereitung der einschlagigcn Durchführungsverordnungendie deutschen
historischen Fischereirechvor der danischen Nordseeküste, deren Gewahr-
leistung die Konvention vorsieht, gcbührendberücksichtigen wird.
Kopenhagen, den 16. Marz 1967. COMMON REJOINDER OF DENMARK AND THE NETHERLANDS 545
The Government of the Federal Republic of Germany has been notified
that the Danish Minister of Fisheries has issued a Decrec in pursuance of
Clause 38,paragraph 4, ofthe Danish FisheriesAct (No. 195of 26May 1965)
under which paragraphs 2 and 3 of Clause1 of the Danish Fisheries Act shall
take force as from1July 1967.The Fedcral Government is aware that in pur-
suance of Clause 1, paragaph 7, of the Danish Fisheries Act, speciaagee
ments may be concluded with fmeign States permitting their continued fishing
in certain areas within the extended Danish frshingzo(12 nautical miles).
The Federal Republic of Germany and Denmack areamong the signatories
to the EuropeanFisheries Convention of 9March 1964.Both States have also
signed the Protocol concerning the provisional application of the Convention.
Although the Convention jsnot,as yet, in force towards the Federal Republic
of Germany, it is expected that the Federal Republic's instrument of ratifica-
tion wjll be deposited during this surnmer, possibly before 1 July 1967. The
delay inthe ratification procedureis due to purely technireasans.
Already today, the Federal Republic of Germany considers herself bound
by thc provisions of the European Fishesies Convention of 9 March 1964.
ln conscquence hereof the Federal Republic of Germany has raised noobjec-
tionsto the introduction by Denmark of the fishing regime as defined in the
Fisheries Convention (the Danish Fisheries Act, Clause 1). On the othnnd,
the Government of the Federal Republic expects that already when drawhg
up orders of implementaiion, the Danish Government wilI duly consider the
histoxicalfishingrights of the Federal Repuboffthe Danish Worth Sea Coast
in respectof which the Convention foresees guarantees.
Copcnhagen, 16 March 1967. NORTHSEA CONTINENTAL SHELE
NOTE FROM THEPRESIDEN OTFTHE BELCIAD NELEGATI FORNTHE DELI~UTATION
OF THE CONTINENTSA HLEL FETWEEN BELGKJ MND THE WETHERLAN DOTHE
ESI IDE NTF THENETMERLAN DESLEGATION
DATED 8 DECEMBER 1967
Bruxelles, le 8 dicembre 1967
Monsieur le Président,
J'ai l'honneur d'accuIarkeption delaIettre par laquevousme deman-
dez s'il a objection iceque le Gouvernemeritnterlandais communique B
la Cour internationale de JustIaposition prise en matikre de dilimitation
du plateau continental entre la Belgiqueet les Pays-Bas.
11n'y a aucune objectioà ceque vous fassiez connaitre a cette bminente
institution quleGouvernement belge a déposé devantles Chambres légis-
lativeun projet de loi comportant notammeun article 42 conçu dans Ies
termes suivants :
"La drilhitationdu plateau continental vis-&-visdes pays dont les
cotessont adjacentes aux cotes belges,c'est-&-direla France et lesPays-Bas,
estdéterminéepar appIication du principe de la Iigne medianetous
les points sont tquidistantsdes pleplus proches des lignes de base 9.
partir desquelles est mesutalargeur de la mer territoriachacune
des puissanceint&ressées.ettedélimitationpeut êtamenagrk parun
accord particulier avec la Puissanoeintkressée."
Ce projet de lon'apas encore reçu l'approbation du Parlement. Toutefois
desnégociationsont dkjk eu lieu entre Ia Belgiqueet lesPays-Bas et ontabouti
Aun accord de principe, qui ne pourra êtresignéque lorsque le Parlement
aura approuvéla loi qui affirmele principe des droits de la Belgiqueet permet
Ia conclusion &unaccordparticulier.
Cet accord, non encorsime, porte sur la délimitation concrètedu plateau
continental. Conformémentaux dispasitions contenudans le projede loi
belgeil affirmele principe laligne médianedont tous les points sont Bqui-
distants des points les plus proches des lignes de base à partir desquelles est
mesuréela largeur de lmerterritoriale des deux pays.
Sur cette base, l'accord consacrera que la délimitation sera tracéepar les
arcsde grand cercle entre Ies points suivants:
1) 51"48'18"N 2" 28' 540
2)51" 39'41" Z045'40"
A Monsieur leProfesseurRiphagen,
Présidentde la délégationnkrlandaise
pour la délimitation du plateau
continental entre Ia BeIgiqueet
IesPays-Bas. COMMONRWOINDER OF DENMARK AND THE NETHERLANDS 547
IIn'y a aucune objectionà ce que votre Gouvernement fasseconnaîtrela
teneurde Ia présentelettre la Cour internationalede Justcneajoutantque
la position du Gouvernementde Bruxellesest communiqute sous réservede
l'approbation du Parlementbelge.
Je vous prie d'agrker, MonsiculePrésident,l'assurancedema haute con-
sidération.
Le Présidentde ladklégationbeIgc,NORTH SEA CONTINENTAL SHELF
Appendix1 toAnnex4 COMMON REIOINDEROF DENMARK AND THE NETHERLANDS 549
Ministry of Foreign Affairs
and Commerce.
Brussels, 8 kmber 1967.
Mr. Presjdent,
1have the homur to acknowledgereceipt of the letter in whichyou asked me
if there were any objections to letting the Netherlands Governmencommuni-
cate to the International Court of Justice the position taken regarding the
dclimitation of the continental shelf between Belgiumand the Netherlands.
There is no objection toyour letting this eminent institution know that the
Government af Belgium has deposited with the legislative chambers a Bill
containing, inter diaanArticle 2, paragraph 2, worded as follows:
"The delirrsitation of the continental shelf vis-à-vis countries whose
coasts are:djacent to the Belgian wasts, that isto sayFrance and the
Netherlands shall be determined by application ofthe principle ofequi-
distancefrom thenearest pointsof the basclinesfrom whichthe breadthof
the territorial sea of each of the Powers concerned is measured. This
delimitationmay be adjusted by a special agreement with the Power
concerned."
This Bill has not yeken passed by Parliament. Negotiations have neverthe-
les$already taken place between Belgium and thc Netherlands resulting in an
agreement in principle, which cannot bzsigneduntil Parliament has passedthe
Bill confirming the principle of the rights of BeIgium and permitting the con-
clusion of a specificagreement.
This agreement, as yet unsigned, concernsthe actual delimitation of the
continental shelf. Iconformity with the provisions contained in the Belgian
Bill, the apeement confirms the principle of the medianline, every point of
which isequidistant from the nearest points of the baselines from which the
breadth of the territorisea of the two Statesismeasured.
On this basis, thc agreement will lay down that the line of delimitation shall
be drawn by means of arcs of greatcirclcs between the following points:
Professor Riphagen,
President of the Netherlands Delegation
for the Delimitation of the Continental Shelf
between Belgium and the Netherlands.550 NORTH SEA CONTINENTALSHELF
(5)51" 31'23" 3" 04'13"
(6)51"28' 23" 3"12'08"
(7)51" 27'14"
3"13' 25"
(8)51"ZA' 40" 3" 17'53"
Thcreis no objection tlettinyourGovernment make the contentaofthis
letterknown totheInternationaCourt of Justice,atthe sametirnaddingthat
the position of the Goventment ofBrussels,now communicated toyou, is
subjecttoapprovalby the BelgianParliament.
Pleaseaccept,Sir, thassuranceof my highestconsideration,
The Presidentofthe Bdgian
Delegation. COMMONRWQINDER OF DENMARK AND THE NETHERLANDS 551
Annex5
Overenskornmelsemellan Svenge och Norge om avgransning
av kontinentalsockeln:
Regeringen i Konungariket Sverigcoch regeringen i Konungariket Norge,
sorn beslutat att faststalla granslinjen mcllan de omrip5ekontinental-
smkeln over vilka Sverige respektive Norge ut~var suverana rattighetei
frkga om utforskande och tillgodogoranda av naturtIllgAngar,
har enats om foljande:
Artikel 1
Granslinjen mellan de ornraden av kontinentalsockeln Gvervilka Svenge
respektive Norgc utovarsuverana rattigheter i friom utforskande och till-
godogorande av naturtillgangar skall i princip vaen mittlinje, sor5iSA
bestamd att varje punkt pA denna befinner sig pa lika stort avstiind frAnde
namaste punkterna pi de baslinjer frh vilka breddepa Sverigesrespektive
Norges territorialhav raknas.
Artikel 2
J 6verensstammelserned den i artikel 1 bestamda principen men med vissa
awikelser for attuppnften praktisk och andamilsenlig strackning av grans-
linjen skall denna dragas mellan foljande fem punkter:
1. Den ~astligaste punktenpS.den yttre grinsen for Sveriges sjotercitorium
mot Norge. Punkten har f~ljandekoordinater:
58"54' 50,2"N, 10"45' 28,Xa0.
2. Den punkt dar granslinjen enligt den internationella skiljedomen den 23 ~k-
tokr 1909angaende faststkllandctav en del av sjogransenmellan Sverige
och Norge trgffar den yttre gransen for Norges sjiiterritorium draPAn
ett avstiadav en geografiskmil (7420 meter) frkn den norska baslinjen,
sadan denna beûtamts i. Kgl. resolusjon 18.juli 1952 om fiskerigrensen
syd for Traena (Norsk Lavtidend,1952,2. avd., side 82flg)Punkten har
foljande koordinater:
58"53' 34,O " , 1038' 25,O"0.
3. Skanngspunkten mellan en linje dragenpi ett avsthnd av 12 nautiskamil
frkn namnda norska baslinje och en linje dragp% ett avst&ndav 12nau-
tiska mil fran den svenska baslinjcn, sadan denna bestimts i Kungl. kung6-
relsen den 3 juni 1966 rned narmare bestammdser om berakningen af
Sveriges sjoterritoriurn (Svenfür/àirilingssnm lin37at.nPunktlinhar
foljande kaordinater:
58"45'41,3" N, 10"35' 40,O"0.
4. Punkten har foljande koordinater :
58" 3Q'41,2"N, 10"08' 46,9 ".
5. Punkten har foljande koordinater:
58"15' 41,2"N, 10"01'48,l" 0. COMXfOh!REJOINDEROF DENMARKAND THE NETHERLANDS
Appendix 1 to Annex 5
The boundory Iine and Ihe
equidislance bine have besn dcain
in occordonce wiih the inf~rrnotion
avoiloble and the chart is no1 O
reproduction of th0 originol chort
meritioned in Article 3 of the
Norwagiun-S*edlih
Equidlaioncihnéory554 NORTH SEA CONTINENTAL SHELF
The Government of the Kingdom of Sweden and the Government of the
Kingdom of Norway :
Desiring to establish their cornmon boundary between the areofthe con-
tinental shelf over which the Kingdom of Sweden and the Kingdom of
Norway respectivelyexercisesovereign rights for the purpose of exploration
and exploitation of the natwral resources:
Have agreedas follows:
Articlel
The boundary line between that part of the continental shelf over which
Swedenand that part overwhich Norway respectivelyexercisesoverejgn rights
for the purpose of exploration and exploitation of the natural resources shall
in principlbea line whichat everypoint isequidistant from the nearest points
of the baselines from which the territorial seof Sweden and Norway Is
measured.
Article2
Zn conformity with the principlesetforth inArticle 1, the boundary line
shall, with certain minor divergenciesfor practical purposesabline drawn
through the followingfive points:
1. The westernmost point of the outer boundary of tseaterritory oSweden
towards Norway. This point has the following CO-ordinates:
58"54' 50,2" N,10" 45'28,l"E.
2. The point of intersection between the boundary line in conformity with the
kward of 23 October 1909concerning the delimitationof part ofthe sea
boundary bctweenSweden and Norway and the outer boundary of the sea
territory of Norway drawn at a distance of one geographical miIe (7420
rnetres)frorn the Norwegian baselinas Iaid down in Royal Resolutionof
18July 1952onthe fisheryzoneboundary south of Traena (Norsk Lovlidend,
1952,Part 2, pp. 824 eseg).The CO-ordinatesare:
58" 53'34,O " ,10"38' 25,O"E.
3, The point of intersection htweenaline drawn ata distance of 12 nautical
miles from the aforementioned Norwegian baseline and a line drawn ata
distance of 12 nauticamiles from the Swedish baseline as laiddown in
Royal Proclamation of 3 June 1966relating to the delimitation of the sea
territory of Sweden (Svensk F6rfattningssam Nlo.375). This point has
the foIlowingco-ordinates:
58" 45'41,3"N, 10"35' 40,O"E.
4. This point has the following CO-ordinates:
58"30'41,2" N, 10" 08'46,9 E".
5. This point has the foIlowingCO-ordinates:
58" 15'41,2"N, 10" 01'48,l"E. COMMONREJOINDEROF DENMARK AND THE NETHERLANDS 555
The positions of the fiveabove-mentioned points are defined by latitude and
longitudeon European Daturn (1st Adjustment 1950).
The boundary line between point1, 2 and 3 shall be drawn as strailines
(compass lines)and between points 3, 4 an5as arcsof great circles.
ArticIe3
The positions of points1-5as defined in Article 2 and the boundary line
have been drawn on the chart annexed to this Agreement(Nonvegian Chart
No. 305).
Article4
If natural resourceson the seabed or in its subsoilextend across the boundary
linc as definedinArticle 2 and natresourcessituated in tma of one State
are exploitable, rvholly or in part, froareaeof the other State, the States
shall, at the request of either State, seekto reach agreaseto how these
natural resources shalx most effextivelyexploited ahow the proceedsde-
riving therefrom shall be apportioned.
Article 5
This Agreement shall be ratified. Instruments of ratification shalex-e
çhanged at Osloas mon aspossible.
TheAgreement shall enter intoforceon the date of the exchangeofinstru-
mentsof ratification.
Done in duplicateatStockholm the 24th of July 1968in the Swedish and
Norwegian languages, both texts king equally authoritative.
For the Government of
For the Govcrnment of
the Kingdom of Sweden the Kingdom of Norway
(Si~ned)TorstenNILSON. {Signed)Henrik BROCH. DECRE EY mE PRESID~U MF THE U.S.S.R. HtGHEsT SOVIE TN
RIE CONTINENTSA HLELFOP THE U.S.S.R.
(6 Februari1968)
YKA3 nPE3HRWYM# , EPXOBHOTO COHETA CCCP *
O uommiemruew~ meri* (Cocasa CCP
Ilpean,inym Bepxoowro Coaesa CCCP mamaet:
1.CCCP ocyuiccrmuer cyseprnnbie npna Haa KOHTUHVHTii.'li~tflJub4
vnt+u. npiiwuramuisw K s~euinrd rpanerip tepynrupuanbstiru rrcil~n
CÇCP.s utniin prasp.ïwwn pi3paborun m tçsecTiirrfairx6or;crcis.
KOHTHYCWTP.I~ H~e~nb+o~ CCÇP W~.IUK~TCM altini-puitii~*wt*nta.lpa
wupcRom am no.tw.uibix P~kOI408. npnn~~puuix w iltdirp~~b~i ~1.1it K
wTposani CCC Y. »ri w arrodniuaxcm une -nu rrhpliuiiipna .wtirtrui~pa, ,ir>
rny6nnhi 3UO werpoe Han, 3a stwm npcnenou. 31i triiorti.ui.c.ririo KriTii-
poro raybnna nairpwooiwinr ioa somarr pispobtwy ti~i.~.rmi~n~ux
dorarcrs 9rnn pihomi.
~IOBP~XHOET H~ HC~PO uiipcnoro mi inanun, pacriimixrti#id,.r R
iii.ioiiinnu Iisrrim #oPinwwmawora JICP* CCCP. n~siiiiicnrii tir MI
r.rybynili,nsnniaiicwsacrbp ~HT*HCUT~AL*MO UCM@~ ÇCLP.
2. rpn~nua KoiiruHrirfdnaHurri ui~bQla CCCP B.TPV F.I)~YAU\. Kcii..la
il11 ~f~u~mh;~;'c~w urvli~ipa~ .Ipyrns roc).ïaprTn. onpib..tP.inr-rrnrnr.iiiiirth-
~ltn\IIIi' wn riid:iilpcTnaH~t.npn urîyrcrsnii TaKUlr çnraiiiiiewriirt rz;iH
iiiioi.inblItnrpanHuu HP onpaB.'tmBaeTcn twod~mn nfir~riari*.-rbi-~nauii
ii) rpw~iruri~ ~~i~rai~~n~anbnoro ue.i@a CÇCP iir~ih.)i~pi~~n\i. f1i.p~-
Id hriojjotri paiiii~~.lLimeliliipurns bepcroe CCCP. ;..r!.m iri rptbitlt~ia~i
aiiiiii~.h,ia.lar rovaa ~urupni panni, OËVTOHY 01 'r).71!m;th1111irriih II'\
~i.~o:iliid\.IIIHII~18ikotwp~x rblUP~IICT~Y iuWpuua yvppHriilill.i.'lt,niXtriliH
(;CC:P n c'~wTneTcTtiyK~ti~rro roc.)Ta prttra.
il0 l t*khTt'L'Tiii'Iltfi411qrN'rUh\iiiKU#tIHtN'Il,jll,ll~~~$lllt~.~f~~;:t,h\h
IUT 1 1 tlt'J.1ltt' i 1 1 1 1 ~ 1 1 r 1 .1 I l I l 1i il 11,111
\lO~~ibbi0i'ï1I;ia TaKhP ihllB1dV OprilHl#3bitd*~'M.'l~!'lllMl1ltlll1 t 1 il1 ;I
HIIi~ 14, K~)TOptdtH tin.~i;'c~xau~~A. HPOH~~IC III~H TOYKH Sf~6'iilll~I~~\IHII.T
~nr~*riip;13BHTIiH .ïuh 1lpH~pCll.lpHhl K Mril>rKtiU~ ntiy n.7n tin.1iiiiw.'.ii16n
flthlbt'-
HOT-T nl'rt'.lHIITSfbi'T0,lbKU 110 Y<iPC'KDUy AH\. HAM B QIii Ut'llinX
'11'Iitlll.lLihlllllilOPTi4IiHJMi)B.FiH.lRK)UIHiIcIWTt'CTHCHHMllH f)nra~c'~~;l\tH
hiiiirnnrnTa.ibHurii uirn4a CCCP, yteepx.tirrcn ,5lli~~i.r~p~~rno putifi~rir(r
AU iniiç~na (:CCP n iin)6.wwon~ia~rea ~iw icmriiqrili ~+W.I~IEHH
Ap~m~ina îbpsuayu &PIL).#IPO h a CCCP 51.IICIATOPWUA.
krpfipi ne~vnmyro 3rl-O hti CCCP M. rEOPFAA3E. COMMONREJOINDER OF DENMARKAMI2THE NETEERLANDS
Annex 6 A
The Presidium of the Highest Soviet of the U.S.S.decrees:
1, The U.S.S.R s.all exercise sovereign rights over the continental shelf
adjacent to theoutward boundary of the territorial sea of the U.S.S.R. for the
purposesof exploring and exploiting inatural resources.
The continental sheloff theU.S.S. shall be the seakd and siibsoil of the
submarine areasadjacent to theCoastor to islands of the U.S.S.R., but outside
the area of the territorial toaa depth of 200 metres or, beyond that limit,
to where the depth of the superjacent waters admits of the exploitation of the
naturalxesources ofthese areas.
The seabed and subsoil of depressions situainthe continuous mas ofthe
continental shelf of the U.S.S.R., irrespective of their depth,bepart of
the continental shelf of tU.S.S.R.
2. Tn those instanceswhen it is adjacent to the shelf of 0thStates the
boundary of the continental shelf of the U.S.S.R s.aIl be determinecl by
agreements with those States. In tabsence of such agreements and unlessa
different boundarlyineisjustified by special circumstances:
(a) the median lineevery point of which is equidistant fromnearestpoints
of the baselinefrom which the breadth of the territorseais measured,
shdl serve asthe boundary of the continental shelf of tU.S.S.R w.ith
States whose coastsare opposite the coasts of the U.S.S,R. ;
(bl the houndary of the continental shelf of the U.S.S.R. watState whose
sheIfis adjacent shall be determined by application of the principle of
equidistance from the nmrest points of those baselines from which the
breadth of the territorial sea ofU.S.S. Rnd the corresponding State
is measured.
3. The natural restiurcesof the continental shelf bein the Stateowner-
ship of the U.S.S.R. Exploration and exploitation ofthese resourceaswell
asany rescarch On the continental shelf, shali be carriedoon the basis of
prevailing legislation of the U.S.S.R. and union republics.
The natural resources of the continental shconsist of mineraland other
non-living resources of the seabed and subsoilas well as living organisms
belonging to sedentary species, that is, organisms which, at the hamestable
stage, eitheareImmobile on or underthe seabed orare unableto move except
in constant physical contact with the seaordthe subsoil. A kit of specofs
livingorganisrnswhich arenatural resourçesof the continental shelf of the558 NORTH SEACONTINENTALSHELP
U.S.S.R.shallbeapprovedbythe Ministryof FisherieoftheU.S.S. an.d
shdi be publishedfor general information.
W . . . . - . . . , . . . . . .
Chairman ofthe Presidiuofthe
Highest Sovietfthe U.S,S.R.
N. PODGORWI.
Secretaryof the Presidiumof the
Highest Sovieofthe U.S.S.R.
M. GEORGADZE.
Mosww, theKremlin,6 February1568.
(Source:VeabmostiverkhovnogosovetaS.S.SR.. (Gazettofthe Highest
Sovietof thU.S.S.RN .),6,item 40 (1968)j.1 COMMONREJOINDER OFDENMARK AND THE NETHERLANDS 559
ITALY-Y~GOSLA AGIRE: EMEONNDELIMITAR OFTHE CONTINENT SHLELF*
Done atRome, January 8, 19681
AGREEMENT
BETWEENITALY AND YUGOSLAViA COWCERNING THE DELihfiTATION OFTHE CON-
TINENTALSHELFBETWEEN THE TWO COUNTRIES
The Government of the Italian Repuband the Governmentof the Socialist
Federal RepubIicof Yugoslavia,
'Desiring to esiaMish the line of delimitation between theu respective parts
of the continental shelf,
Have agreedas follows:
Article1
The line of delirnitation of the continental shelf between the Contracting
Partiesisestablished by circular arcsbetweencertain points, definedby latitude
and longitudewhiçh are listed in the final paragofthis Article.
Thesc coordinates have ken plotted on Italian nauticanumbert 1.1.170,
scaIe1 : 750,000 (issued Februaq 1964), updated through iNo.e20 (1966)
of the "AvvisoaiNaviganti," motice to Mariners] and on YugosIavnautical
chartsissued by thHydrographie Institute of the Yugoslav Ratna Mornarica,
scale1 : 750,000, number 101 (issued February 1963)and number 102 (isaued
Decemkr 1952)both updated through June 1966.
The points and the line of delimitation have been drawn on rnapsidentical
tothose cited above, copies of which are atttohthe present Agreement.
The Contracting Partieagreethat, for the present,the delimitationotill
extendbeyond point 43.
The coordinates referrCO inparagraph 1 OFthjsArticle are as follows:
Poinis Ifdian courdinares YugosInvcoorditiatcs
onchart niimber170 on charrnurnber101
01 45" 27' .2 N 45"27' -2 N
13" 1Y.7 E 13"12'.9 E
02 45"25' .9 45"25' .5
13"11'.4 13"11' .1
03 45"20' .1 45" 20'.1
13" 06'.1 13"OB'.O
04 45"16' .fi 45" 16'.8
13"03' .8 13"03' .8
05 45"12' .3 45"12' .3
13"01' .2 13"01' .1
*Translated by the Editoof InternationLegal MaleriaIfrom the Italian
tcxt provided bythe ItaEmbassyinWashington,D.C.
As ofApril 30, 1968,the agreementhnot yet entered iforce.NORTH SEA CONTLNENTAL SHELF
44"17' .7
13"27' .8
44"12' .7
13"38' .1
44"10' .7
13"40' .3
44" 00'.7
14" 01'-2
43" 57'.7
14" 04'.9
43" 54'.3
14" 10'-2
43"43' .O
14"21' .4
43"40' .2
14"23' .8
43"38' .6
14" 24'.9
43"35' .9
14"26' ,4
43"32' .2
14"30' .1
43" 30' .1
14"31' -9
43"25' .4
14" 35'.6
43"12'.7
14"46' -3
43"IO' .3
14"48' .1 COMMON RElOINDER OF DENMARK AND THE NETHERLANDS 561
Points Italien coordinates Yug~sFav coodinafes
onchartnurnber 170 on charanumber101
43"03' -8 43"03' .7
14"54' .5 14" 55' .1
43"00' .8 43"00' .9
14"57' .9 14' 58'.O
42" 59'.2 42" 59'.3
15"Ob' .7 15"00' .8
42" 47'.9 42"47' .7
15"09' .5 15"09".7
42"36' .8 42"36' .7
15"21' .8 15" 22'.O
42" 29'.5 42" 29'.6
15"44' .8 15" 45' .O
It is located 12 miles from the lighthouse on the Island of
Pelagora on a 103"bearing of said lighthouse Grue bearing
taken at sa).
The line of delimitation from point 34 to point 35 foIlowsthe
circle oa 12-mileradius from the lighthouse on the Island of
Pelagosa.
It islocated 12 milesfrom the lighthouse on the Island of
Pelagosa on astraight line running from the lighthouse on the
Island of Pelagosatothe lighthouse of Vieste.
The line of delimitation from point topoint 36 ~Q~~OWSthe
circleofa 12-mileradius from the lsland of CaioIa.
Itis locared 12 miles from the Island of Caiola on a straight
line running Frornthe Island of Pelagoto point 37.
42"16'.O 42" 15'.9
16" 37'.1 16" 37'.3
42"07' .O 42"07' .O
16" 56'.8 16" 56' -7
41" 59' .5 41" 59'.4
17"13' .O 17" 13'.1
41"54' .8 41"54' .6 N.B. These coordinates also
17" 18'.7 17"19' .Oappear on chart number 102.
41"50' .2 41"49' .9
17" 37'.O 17"37' .4
41" 38'.5 41"38' .1
18" 00'.O 18" 00' .O
41" 30' .O 41"30' .O
18' 13'.O 18"12'.9
Article 2
Intheevent that natural resources of the seabed or beneath the seabed extend
from the line of delimitation to both sides of the continentalsohthat the
resourceson the continental sheif of one of the Contracting Parcm,sin al1
or in part,k exploitedfrom the continental shelf belongîtothe other Con-562 NORTH SEA CONTINEWTAL SHELF
trading Party, the competent Authoritieof the Contracting Parties wimeet
with theintentof reachinganagreement to determine the manner inwhich said
resources wilbe exploited, &ter having first consulted with the holders of any
concessions in thaarea.
Tf a dispute anses over the position of anyinstallation or equipment in
reference to the line of delimitation defined in A1tof this Agreement, the
competent Authoritics of the Contracting Parties shall determine, by mutual
consent, in which part of the continental shelf suchinstallations or equipment
are located.
Article
The present Agreement does not affectthe juridical status of tseas and
air spaceabove the continental shelf.
Article 5
The present Agreement shall be ratified according to the constitutional
processesof the Contracting Parties and shall enter into forceon the date
of the exchangeof instrumentsofratification, which willtakeplace in Belgrade
as soon as possible.
Done in Rome, January 8,1968i, n two copies, each in Italian and Serbo-
Croation, both texts being equallyauthentic.
For the Govemment OF the
Italian Republic
(FANFANI)
For theGovemment ofthe
Socialist FederalRepublic ofYugoslavia
WIKEZI~) COMMON REJOINDER OF DENMARK AND THE NETMERLANDS 563
,,,,,,,,., Aqreed Line of Delimitation
- Line of delimitation applyinq
the 1958 Geneva Convention
ARRIATIC SEA
Scale 1 : 2,000,000 564 NORTH SEA CONTINENTAL SHELF
,- Agreed Line of Delimitation
-,, Line of delimitation taking lnto
account the Island of Lissa
---- Line of delimitation plotted
from the Island of Busi
Scale 1: 750,000- -.
ÇOMMON REJOlNDER OF DENMARK AND THE NETHERCANDS 565
ADRIATIC SEA
Scale 1:3,000,000
- Agreed '~ine of
Del imitat ion NORTH SEA CONTINENTAL SHELF
Annex 8
THE COMMONWEAL OTHAUSTRALIA
Under point 14of the Annexto the RepIy(pp. 440-449,alpro) the Federal Re-
public reproduced the full text of the Second Scheduleto the Australian Petro-
leum (Submerged Lands) Act 1967.The said Schedule delimitscertainareas of
the Australian territorial waters and of superjacent watersof the Austcon-an
tinental shelf (taking these two categories of waters together) and specifies
each of these areas tEK administered bya particular State or Territory of the
Commonwealth,
Apparently the Federal Republic attaches much importance to the delimita-
tion of these areas.It giveson a full eight pages of the Reply, an irnpressive
list of geogaphical points, defined by CO-ordinates,and without adducing
anyreasoning or illustration jumps to the twofold conclusion:
(a) that the delimitation of the areas, as berweenindividual Australian States
the individual States oafederation" (Reply,p. 440,supra; italics added);
and
(b) that the boundary lines "difler Iargelyfrom equidistance(ibid).
Denmark and the Netherlands draw attention, in the following paragraphs,
to different aspects of the "example" adduced by the Reply. The map re
produced as figureÇ on pagc 499, supra, together with someother maps, giving
details of separate areas, had ben prepared by the Division of National
Mapping of the Commonwealth Ministq for National Development and be-
longed to the material made available to Parliament forthe occasion of the
second reading of the Petroleum (Submerged Lands) Bill.
A. Interna1Ddirnilatiuns
Fjrstly attention has to be paid to the alleged example only in so asthe
Scheduleto the Australian Actfixe ifernalboundaries, i.e.,boundaries between
maritime areas alloredto thcornpopictzbparof theAustralian Commonwealth.
It has to bercrnasked that the relations between the Statmemkrs ofthe
Commonwealth of Australia, or the relations between such a member State
and th^Commonwealth, are not governed by international law. These relations
are governed by the constitutional law of the Australian Commonwealth.
Consequently, the determination of maritime boundaries ktween the Austra-
IianStates and Territories, specifiedby the Petroleum (Submerged Lands) Act
1967, cannot be held up as an "exampIen of the appIication of international
law, whatever generalinterest it may have withregard to the matter in question.
This conclusion jsçl~arlyillustrated by the fact that, also in the opinion of
the Australian Government, under international law not the member Statesor
Territories but onIy the Commonwealth has a "continental shelf" in the legal
sense of the word, i.e., certain "sovereign righover the seabed and subsoil
of submarine areas adjacent to its coasts. Already the Proclamation by the
Governor-General concerning the continental shelf dated 11 September1953
ltextin United Nations Legislarive Series,doc. STILEGISER.Bl8,p. 3) de-
clared:
"that Australia has sovereignrights over the seabed and sub-soi1of:
(a) the continental shelf contiguoto any part of its coaçts; and NORTH SEA CONTLUENTAL BHELF
"And further know yeChatWe do by these presents constitute, order,
<anddeclarethat there shall aeGovernor in and over Our State ofwestern
Australia and its Dependencies, extending from the parallel of thirteen
degrees thirty minutes sauth latitude, to West Cape Howe in the parallel
of thirty-five degrees eight minutes south latitude, and from the Karto~
Island, on the Western Coast, in longitude one hundred and twelve
degrees fifty-two minutes to one hundredand iwenry-tiinedegueesof east
lorigiiude,rmkoning from the meridian of Greenwich, including al1 the
islands adjacent in the Indian and Southern Oceans within the latitudes
aforesaid of thirteen degrees thirty minutes south, and thirty-five degrees
eisht minutes south, andwithin the longitudes aforesaidof one hundred
and twelve dcgrees fifty-two minutes, and one hundred anrdrweriry-itirre
degreescasifrom the said meridian of Greenwich ..." (Italics added.)
B. Delirriitationslowards WesrIrian and the Ara Islarids
The only parts of the continental shelf, i.c., of the seabed to a depth of not
more than 200rnetres,contiguous to the coasts of Australor of an Ausiralian-
administewd Territory, thatare alsocontiguous to the coasts of another State,
are to befound where the sheIextendsto the coastsof Indonesian-administered
West Irian and the Indonesian AFUIslands. Bythe above-mentioned Petroleum
(Submerged Lands) Act 1967 the Covemment of kustralia has, unilateraIly,
dso defined the boundaries on these parts of the shelf. When doing sa the
Government madeexpressreference tothe applicable ruIesof internationfaw.
In addition to the passagesquoted above, referencemay be made to the second
preambular paragraph of the Act:
"AND WHEREAS Australia js a party to the Convention on the Con-
tinental Shelf signed at Geneva on the twenty-njnth day of April, One
thousandnine hundred and fifty-eight,in which those rights are defincd."
The areasof the continental shelf adjacent to Australia thaare contiguous
to the coasts ofWest Irian and theAru Islandsare, in the order of successïon
of the boundary descriptions in the Second Schedule to the Act, the areas
bordering on:
1.the State of Queensland,
2. the Northern TerritoryaFAustralia,
3. the Territory of Papua, and
4. the Territory of New Cuinea.
Ap~t fromthe indications, quoted above, that the Australian Act has been
based upon the rules of the Geneva Convention, theAct ieselFdoes not specify
the method of delimitation follnwed in these foucases.Nevertheless the ron-
clusion can be drawn, that In al1four cases thequidistanceprinciplehm been
upplied.Denmarkand the Netherlands do not base this conclusion only on a
study of the charts showing the lines between the relevant boundary points
(see Appendix 1 to the present Annex), to be mentioned below, but also on
commentaries from Australian sources,which will be cited below:
1. Queensland-West Trian (oppositecoasts).
(Boundary description in the Reply, pp.441 and 442.)
Relevantpart of the boundary: Getween a point ofLatitude 10" 51' South,
Longitude 139"12' 30" East, and a point ofLatitud9" 52'30"South, Longitude
140" 30'30".
2. North Australia-ATUIslands and West Irian(opposite coasts).
(Boundary description in the Reply, pp. 444 and 445.) COMMONREJOlNDER OF DENMARK AND THE NETHERLANDS 559
Relevant part of the boundary: between a point of Latitude 8' 52' 15"
South, Longitude 133' 24' 15" East, and a point of Latitude 10' 51' South,
Longitude 139"12' 30" East.
Commentary on 1and 2: R.D. Lumb, LL.M. (Melbourne), B. Phil.(Oxon.),
Reader inLaw, University of Queensland, commenting on the "outer bound-
ariesof the adjacentareas" writes:
"However the drawing of the outer limits in the casof the northern
adjacent areas had totakeaccount of the median line principle embodied
iriArt. 6 (in footnote: texArt. 6) of the Conventionon the Continental
Shelf and therefore these limits are demar~tedinthe light of Indonesian
jurisdiction over the shelf pertaining to West Irian (footnote: 'There is
no break inthe ShelfbetweenWesternIrian and the Northern Territory.')."
("The Ofl-Shore Petroleurn Agreement and Zegislation", in 41 The
AustralianLaw Journal(29 Feb. 1968), p. 457 .)
The same author had already in 1966illuminated the situation on this part
of the shelf:
"Off the North Queensland coastline the shelf also extends across
Torres Strait to Papuan and West Irian eoastlines. The demarcation of
these continental shelf boiindaries where the physicalfeatures of adjacency
or contiguity are prwnt calls for the application of the median or equi-
distant lineprincip(in the absenceof agreement), subjecto the qualifica-
tion that the islandsstraddling Torres Strait (warepart of Queensland)
may cal1for a modification of this principle." (TheLaw of fhe Sea and
AustralianOf-shore Areas, University of Queensland Press.)
3. Papua-West Irian (adjacent coasts).
moundary description in the Reply, pp. 446 and 441.)
Relevant part of the boundary: betwen apoint oFLatitude 9" 52'30"South,
Longitude 140"30' 30"East, and the point of intersection of the outer lirnit of
the territorial waters.
4. New Guinea-West Jrian (adjacent coasts).
(Boundarydescription in the Reply, pp. 447and 448.)
Relevant part of the boundary: fxst part of the boundary from its point of
commencement on the point of intersection of the frontier between New
Guinea and West Irian and the outer limit of the territorial waters.
Commentary on 3 and 4: Reference is made to the Notes of 19 June 1967
and 18March 1968, respectively, from the Australian Department of External
Mairs to the Danish Ernbassyat Canberra reading as follows:
"The Department of External Affairs presents its compliments to the
Royal Danish Ernbassy a,d has the honour to referto the Embassy's
Note of 9th March, 1967, concerning the proceedings instituted in the
International Court of Justice for the delimitation of the continental shelf
as between the Netherlands and the Fede~al RepubIic of Germany, on
the one hand, and Denmark and the Çederal Republicof Germany on the
other.
The Ernbassy hasobserve4 that in al1 probability the proceedings will
givense to the consideration by the Court of the rules of International
Law applicable to the delimitation of the continental shelf as bctuleen
Statesthat are adjacent to one another. In this regard the Ernbassyreferred
to the provisions of Article 6(2.) of the 1958 Convention on the Con-570 NORTH SEA CONTINENTAL SHELF
tinental Shelf, and sought information as to the practice that hasbeen
foIlowedin the case of Australia.
Australia is a party to the Convention on the Continental Shelf, but
Article 6 (2.)is relevantso far as Australiiswncerned, only inrelation
to the boundary between Indonedan-adrninistered West Trian and the
AustraIianTerritary of Papua and the boundary between West Irian and
the Trust Territory ofNew Guinea.
For the purposesof proposed legislation to regulaoff-shorepetroleum
exploration and exploitationit will be necessaryto defme the continental
shelf boundaries between the abovementioned Territories and West Irian.
It is expwted that the principle of equidistance mentioned in Article 6 (2.)
of the Convention on the Continental ShelfwilIbe applied in the areas in
question.
Tn1953 boundaries were adopted in the abovementioned areas for the
purposes of the Pearl Fisheries Act. Those boundaries simplyfoIlowedthe
ljne ofextension of the land boundary. At that time, ofcourse,the Con-
vention on the Continental Shelfhad not yet heenformulated.No pearling
hm taken place in those areas for someyears and, fmm a practical stand-
point, the Pearl f isheries boundaries no longer have any significance.
Probably, however, the boundaries will be revised accordance with the
principlesofequidistanceso asto bringtheminto linewiththe conternplattd
off-shore petroIeum boundaries.
The Ernbassy also saught information on the practîoe foIlowed in the
delimitation o"sea boundaries, lakes (and) territorial waters' as between
Australia and adjacent countries. Again, this question is reIevant only in
relation to the boundaries refertodin paragaph 3 above. The proposed
Australian legislation mentioned in paragrap4 will apply to the wa-bed
beneath the territorial sea as well as to the continental sheIf strictly so-
called. Ttis expectedthat the principle of equjdistance wilIbe applied both
within and beyond territorial limits.
The Department of External Affairs avails itself of this opportunity
to renew to the Royal Danish Ernbassy the assurances of its highest
consideration.
CAiVBERRA.A.C.T.
19th June,1967."
"The Department of Externa1Affaira presents its complim~nts to the
Royal Danish Embassy and ha9 the honour to refer to the Embassy's
Note No. 42 of 13thDecember, 1967,concerning the Australian off-shore
petroleum legislation.
The principle ofeguidistance mentioned in Article 6 (2.) of the Conven-
tion on the Continental Shelfhas ken applied Far the purposeof defining
the boundaries hetween West Irian and the Territoriesof Papua and New
Guinea.
The Department of External ARairs avaiIs itself of this opportunitto
renew to the Royal Danish Ernbassy the assurances of its hightest con-
sideration.
CANBERRA. A.C.T.
18th March, 1968." COMMON RWOlNDER OF DENMARK AND THE NLTTHERLANDS
C. Equidisiance-Specid Circurnstancesin the Agreemenl Bedween
Queensland andPnpua
Papua isan Australian-administered Territory whichthe Australian Govern-
ment is developing towards self-government. Alrcady the Australian Govern-
ment has applied to the shelf delimitation between the Territory of Papua and
the nearest Australian Stare, Queensland, the standards of international law:
the equidistance principleofArticle 6 of the Geneva Convention, mtidifiedby
the special circumstancesclause.The Australian Minister forNational Dcvelop-
ment, introducing the Petroleum (SubmergedLands) Bill 1967in second reading
tothe Commonwealth Parliament, stated on 18 October 1967 (p. 1945of the
Aüsrraliun Hansard):
"While dealing with adjacent areas 1 should make brief mention of
certain agreements which have beenreached in relation to the adjacent
areas of Queensland and Papua ... Prior to the commencement of these
negotiations between the Commonwealth and the States, Queensland and
Papua had issued adjoining exploration permits with boundaries con-
forming to the boundary bctween Queensland and Papua. These perrnits
' have ben açcepted by the companies in good faith and work has been
going on in the areasconcerned. When it became necessary to consider
these boundaries from the point of view of this joint legislation it was
found that the applicatioinas berweenAusfraliaand Papua of the median
line pririciple would have resultcd in part OFone permit and something
like half of another permit whichhas heen issued by Papua being brought
under the jurisdiction of Queensland, thus resulting anreduction of the
areaof continental shelfunder the authorityof the Territory.
The Government considered that any transfer of part of these titles back
to Australia-no matter how justifiable in tems of logic-might be
misunderstood inPapua and NewGuinea, and in any casethatsuch action
would be inconsistent with the highsenseof responsibility which Australia
displays in working to bring this Territory rowards felf-government."
(Ttalicsadded.) COmON REJOINDER OFDENMARK AND THE NETHERLANDS 573
Delimitaiiontowards West-Iriaand the AruIslands.
Above and oppositeare reproduced two pieccsofBritish AdmiraltyChart No.
2759 a (Ed:Large Corrections, March1967).
boundam as definedin Schedule II of the Australian Petroleum
(Submerged Lands)Act 1967.
- -- -- - the internationalparts of the equidistline,as reconstmcted by
the Hydrographie Department,The Haye, on largestscale charts
availablc.
......... depth-contoursindicating ses6.and 100fathom. NORTH SEA CONTINENTAL SHELF
A. Iraq
On 23 November 1957 the Government of Iraq issucd an "Oficial State-
ment" (published in the Qficial Gazette No. 4069 of 27 November 1957 and
reproduced as Appendix 1 to this Annex) in which it declared that "al1 the
natural resources lying in the seabed and beneath the seabed in thesea area
seawardfrom, but contiguous to Iraq's territorial waters,arethe property of
Iraq". The area embodjed bythe Statement was however not atthe timeof the
Statement specifiedin detail.
On 10 April 1958 the Statement was folIowed by another Statement (repro-
duced asAppendix 2) in which the equidistance principle wasexplicitlmen-
tioned.
IR the same year, bya Republican Decree dated 4 November 1958 (repro-
duced asAppendix 3) lraq extended its territorid waters to 12nauticaI miles.
In order to determinepreciselythe Iraqi boundaries of the territseaaand the
continental shelf the Iraqi Government asked a Norwegian expert, Commander
Coucheron-Aamot, to measure the territorial sea and the continental shelf
area which Traqconsidered as appertaining to her.
In connection with an announcement of August 1960from the TraqMinistry
of Oil(Appendix4)theDanish EmbassyinBaghdad asked for and received with
a note of 22 August 1960 from the lraqi Forcign Ministry an official chart,
reproduced in Çhapter 2 as figure D (p. 502, supra), showjng the areasçlaimed
by Iraq based on the survey of Commander Aamot.
From the chart it can be ascertained that Iraq-which wasneither a signatory
nor had become a pany tothe Geneva Convention on the Continental Sheif-
has bascd the delirnitation of its territoscaland its continental shein the
Persian Gulf on the stricapplication of fhe equidistangrinciple.
Only a base point on the Iranian coast (named L4 on the chart) has bwn
disregarded, presumably because there were some doubts whcther the base
point-a low tideelevation-could be used asa true base point. Instead a more
easterly base point(U1) was chosen for the delimitation of the shelf.
B. Kuwait
Kuwait has not concluded any agreements with her neighbours concerning
the delimitation of the continental shelf. But there isan indication of its ap-
purtenant continental shelf area in the Kuwait-Kuwait Shell Oit Concession
Agreement of 15 January 1961 which states (through CO-ordinates)"the ap-
proximate boundaries of thc seabed to which Kuwait is entitled".
Therelevant articleisreproduced in the Reply, pages 438439, supra,and the
Reply cornnicnts on the Agreement as follows:
"The dividing line followsthe general direction of the land frontier and
doesnot reflect the prinçiple of equidistance."
FirstJy,it should be noted that the "dividjng liae" in questias shown in
the chart preparcd by the Danish Hydrographie Institute (reproduced as
Appendjx 5),isa delimitation related to the adjacentState, Traq,to the opposite COMMON REJOIWDER OF DENMARK AND THE NETHERLANDS 575
State, Iran, and to the adjacent Neutral Zone. The Federal Republihowever,
only mentions the general direction othe land frontier and Denmark and the
Netherlands are not aware whether the Fedcral Republic means a continuation
of the generaldirection of the land frontier bztweenKuwait and Iraq or between
Kuwait and the NeutralZone, or both of them. However, the dividing line is
certainly not based on suçha continuation.
(1) Border Relations Kuwait-Iraq
As already stated in Chapter 2, paragaph 71, above, the northern boundary
of the Kuwait-Kuwait Shell Agreement is astrict equidistance lius itcoin-
cides with the southernterritoriawater and contii~enrashelf boundary which
Iraq hasuizilaterallyclaimed!
(2) Border Relations Kuwait-Tran
Under the Kuwait-Kuwait SheIl Agreement, the line of division towards
Iran is definitely noa continuation of the land frontier; in al1 probability
it is based oa modified equidistance line leavingout of account the following
islandsinfront ofthe Kuwait and [ranian coasts,Kubr, Qaru;Umm al Maradim,
Khark and Kharku.
(3)Border Relations Kuwait-Neutra1 Zone
Again the line of division in the Kuwait-Kuwait Shell Agreement towards
the Neutral Zone is not a continuation of the general direction of the land
frontier, whicha glance at Appendix 5 clearly shows.
Here again a modified equidistance line disregarding thesame islands as
mentioned under (2) infineseems to haveken the basis for the ùrawingofthe
line.
C. Saudi Arabia-Bahrein
See paragraph70 in Chapter 2 above. WORTH SEA CONTINENTAL SHELF
AppendixI to Annex 9
The Government of Iraq being most desirous te cxploit the natural resourçeç
of Iraqto the utmost possible limit,and becauseof its beliefthataconsiderable
part of these resaurces arelying in the sea bed extending along the Iraqi terri-
torialsea, fecls confident that the exploitation of tlieresources of this area
in a proper waywill be in the interest of the Traqipeople and is now possible
in view of the development of modem science.
Therefore, it declares that al1the naturalresources lying in the sea bed and
beneath the sea bed in the sea ara seaward frorn, but contiguous to Iraq's
territorial waters, are the property of Iraq, and that Iraq alone has fui1juris-
diction right on these reûourcesand to safegward and exploit them.It has also
the sole right ro take al1 neŒssarymeasuresto sumy these resources and
exploit them in away deemedsuitable. It has also the right to taal1nwessary
legislativeand administrative measures to safeguardal1the equipment required
for the survey and exploitation works.
The Governmcnt of Iraq wishes to wnfirm that the purpose for issuing this
statement is onIyto exercisethe right according to internationally agreed pro-
cedure. It also confirmsthat this statement does not affect the rulcs set up
regarding freedorn of navigation and fishing in the aforementioned sea zone.
(PubIished inthe Ofleial Gazerte No. 4069dated 27.11.1957.) COMMONRWOINDEK DE DENMARK AND THE NETHERLANDJ 577
Appendix2 to Annex 9
In confirmation of the contents of the statement issued by the Government
of lraq on November 23, 1957, establisking the right of the Government of
Iraq in the waters beyond the territorial waters of Iraq.
The Government of Traq daclares that its full sovereignty extends to the
territorial watezones of Traq,the air space ovcr them, the sea bed and the
sub-soi1area, declaring that al1works and installations, already c~rnpleord
to be completed, in this area or in tharea of contiguous waters, fa11under
the sovereignty of the Iraqi State, and it not permitted tocarry them out
except by the Iraqi authoritiesor by other parties authorized by the Iraqi
authoritie~. The Iraqi Government, while declaring this in establishment of jts
rights, announces itç abidinwith the international procedurein this regard,
and the principIeof equidistancensuring for Iraq transit freedofrom and to
the high seas.
While stating this, the Iraqi Government declares at the same tirne that ir
does notrecognizeany statement, notification, legislationor planningconcerning
territorial wateror contiguous waters issued by any neighbouring country
contravcning the contentsof this statement.
(Signes) Prime Minister.
published inthe Ofic~a G azetteNo. 4128 dated 10.4.1958.)578 NORTH SEACONTINENTAL SHELF 1
Appendix3 to Annex 9
REPUBLICA DNECREE
DATED 4 NOVEMBE 1958
No. (435)
Pursuant to the proposa1of the Minister of Foreign Mairs and the approval
of the Council of Ministers, we have decrecd the fallowing:
1. The territorial sea of hqthe airspm above it, the sebed and the
sub-soi1 area are under the fulI sovereigofythe Iraqi Republic with due
regardto the principles underinternational law regarding peaceful passage of
forejgn ships.
2. The Iraqi territorial sea shalI extena distance of 12 nautical miles
(1,852 metres) seaward,measured from the lowest mark of thflow back of
sea water from the Iraqi coastline.
3. Incase the territorial sea of another state overIaps that OFIraq, the
houndaries of the two territorseasshall he fixedbyan agreement with the
state concerned according to principles established by internatioorlbyaw
mutual understanding.
4. This Decree duesnot prejudice the internationally established rofhts
Iraq in its contiguous zone and continental shelf which lie beyandthe Iraqi
territorial sea tciwardshisea.It does not prejudiceofficial comrnuniqu&s
previously issueby the Iraqi Goverornentin this regard.
The Ministerof ForeignAnairs ischarged with the execution of this Decree.
Written in Baghdad this 4th daofNovember, 1958.
(Published in thOficialGazelfeNo. 74 dated 15.11.1958,) CDMMONRWO1NDF;ROF DENMARK AND THE NETHERLANDS 579
Appendix 4 toAnnex 9
The Government of IraqiRcpublic isready to acceptoffersfrom companies,
firms and individuals who are interestinobtaining exploitation rights for oil
and its derivatives (ExpIoration and Devclopment) in wide areas of Iraq
Territorial Waters and its contiguous zone.
Offersmust besubrnitted to Ministry of Oil in Baghdaas frorn the date of
this announoement, and not later thansixmonths therefrom.
Applicants must satisfy the Ministry of Oil of their adequate financial and
technical abilities.
The Government of Iraq will reserve their right to refuse anor a11ofers
without obligations.
Note:
The detailed maps of this zone can be obtained from the Ministsy of Oil,
Baghdad.Appendix5 toAnnex 9
Common Rejoinder submitted by the Governments of the Kingdom of Denmark and the Kingdom of the Netherlands