Dissenting Opinion of Judge Morelli | INTERNATIONAL COURT OF JUSTICE

DISSENTING OPINION OF JUDGE MORELLI

1. The two Special Agreements asked the Court to indicate "what
principles and rules of international law are applicable to the delimita-
tion as between the Parties of the areas of the continental shelf in the
North Sea which appertain to each of them .. .".It is quite clear that
the principles and rules that the Court was called upon to establish could

only be principles and rules which were binding for each of the two
parties to each Spec:ialAgreement vis-à-vis the other Party. It follows
that the principles and rules which had to be the subject of the finding
requested of the Cclurt were the principles and rules of general inter-
national law and not the principles and rules contained in the Geneva
Convention on the Continental Shelf of 29 April 1958(and in particular
in Article 6 thereof), hi ch Convention, not having been ratified by the
Federal Republic, was not as such binding upon it.
On this point 1 entirely share the opinion of the Court. Unlike the
Court, however, 1 think that in order to find the principles and rules
of genei-alinternational lawconcerning the delimitation of the continental
shelf itmight be useful, whenever the circumstances so require, to take
account of the Convention as a very important evideiitial factor with
regard to general international law, because the purpose of the Conven-
tion is specifically,aitany rate in principle, to codify general international
law and because thi,; purpose has been, within certain limits, effectibely
realized.
In coniiection wiith the Convention it may be observed that it was
signed by the Federal Republic. This means that the Federal Republic

participated in a technical operation which, to the exteiit of the Conven-
tion's avowed purpose of codification, consisted in the establishment of
general international law. Byits signature the Federal Republic expressed
an opinion which, within the limits indicated abo~e, may be qualified
as an op;t~ioj~cris.Butit was a mere opinion and not a statement of will,
which could oiiiy be expressedbyratification. Forit is only by ratification
that the States sign,atories to a Convention express their will either to
accept new rules or, in the case of a codification convention, to recognize
pre-existing rules as binding.

The statement that the purpose of the Geneva Convention was, at
least in principle, to codify generalinternational law is not contradicted,
in my view and coritrary to the opinion of the Court, by the fact thatArticle 12 of the Convention recognizes the possibility of reservations
(including reservations to Article 6).For the power to make reservations
is entirely compatible with the codification character of a convention

or of a particular riile contained in a convention. Naturally the power
to make reservations affects only the contractual obligation flowing from
the convention; that obligation, that is to say the obligation vis-à-vis
the other contracting parties to consider the rule in question as a custo-
mary rule, is excluded in the case of the State making the reservation.

In this connectiori, sight must not be lost of the fact that the ambit
of any codification is necessarily subjectively limited: i.e., limited to the
States parties to the codifying convention. It is quite conceivable for a
particular provision of the convention, through the effect of reservations,
to be affected by a further limitation, in the sense that the obligation to
accept the codification is, in relation to that provision, excluded for

soine of the parties,i.e., for those States which formulate the reservation.
This circumstance iri no way co!istitutes an obstacle to considering the
provision open to reservation as a codification of general international
law.
It goes without saying that a reservation has nothing to do with the
customary rule as such. If that rule exists, it exists also for the State

which formulated the reservation, in the same way as it exists for those
States which have not ratified. The inadmissibility of the reservation is
not to be deduced from this, seeing that the reservation is intended to
operate solely in the contractual field, Le., in relation to the obligation,
arising out of the c:onvention, to recognize the rule in question. For
this same reason, no importance can be attached to the fact that those

States which do not ratify the convention, and which consequently
remain completely outside the contractual bond, have no possibility of
formulating a reservation.
Having clarified nly point of view so far as concerns the value to be
ascribed to the Geneva Convention as evidence of general international
law, 1 shall now consider matters from the point of view of the latter,
i.e., from the same point of view as that adopted in the Judgment of

the Court. I shall mention the Geneva Convention only in order to note
in Article 6 it is, in substance and within certain limits, in conformity
with the rules of genizralinternational law with regard to the delimitation
of the continental sbielf.

2. 1think it convenient to start from a point which is generally recog-
nized, and which is; not disputed by any of the Parties, namely the
existence of certain irights the subject-matter of which is the continental
shelf. It is not iiecesisary,for the purposes of the present cases, to deter-
mine the nature, the content and the limits of those rights, which Article 2of the Geneva Convention (which Article reflects, it would seeni, custo-
mary interi-iational law) qualifies as "sovereigii rights [ovesthecontinental
shelf]for the purpo:je of exploring it and exploiting its riatural resources".
The rights in question belong to the various States considered indi-

vidually. The continental shelf cannot be conceived of, in the same way
as can the high seas, as soniething common to al1 States. It is necessary
in the first place to rule out any idea of a coinmunity participated in
by a11States and having as its object the continental shelf in general.

But the idea ofa coinmunity niust also be excluded with reference to

any given areas of the continental shelf, as a community limited to certain
States alone, those which have a given relationship with the area in
question. This is of'course subject to the possible effect of an agreement
whereby two or rno,reStates niight decide to make their respective areas
of the continental shelf commoii as between themselves.

Apart froni this hiypothetical case, which is perfectly conceivable, there

is no community between two or more States, the object of which is a
given area of the continental shelf. Without doubt a 'ituation can exist
which gives sise to a problem of tl~~lir~litatiotn r,amely the problem of
ascertaining how a certain area of the continental shelf is atrea-v appor-
rionc,rlamong two or more States. This operation of delimitation has
nothiiig to do with the sharirlgout,amoiig two or more States. of some-

thing cornnion to those States.
ln particulai- it must be denied that the North Sea continental shelf,
despite its geologic.al unity, coilstitutes, or constituted, something com-
mon to al1 thc coastal States. It is quite obvious that to affirm the exis-
tence of a community in this connection would impeac1.ithe legitiinacy
of the bilateral delimitütions, on an equidistance basis, carried out not

merely between Denmark and the Netherlands, but also between the
United Kingdom ;ind the Netherlands, betweeii the United Kingdoni
and Den:nark, between the United Kingdom and Noruay, and betweeii
Ilenmark and Nor~vay. It should also be observed, with reference to
these last two deliinitations, that the parties did not confine tliemselves
to appl)ing the equiidistance criterion, but did something more than that.
Bythe application of the equidistancecriterion in relation to the coastlines

of the contractiiig !States,leaving out of accouiit the geological feature of
the "Norwegiaii Trough", the effect of Ivhich is that the continental
hhelf of Norway ~ould, from the geological point of view, be niade up of
a vcry narrow strip along the Norwegian Coast, what was in substance
fiiially effècted waz.a transfer of certain aieas of the coiitiiiental shelf in
frivour of Norway. It is only by rejecting the idea of something Iield in

coinnion that those areas, Iiaving regard to the said geological feature,
could be considered as appertaining to the otlier two contracting States,
to the United Kingdom and Deiimark respectively.
If it is ïo he excliided that the North Sea continental shelf taken as awholeconstitutes or constituted something held incoinmon, such z régime

must, afortiori, be excluded in respect of the south-eastern sector of the
North Sea (the sector bounded by the equidistance lines between Norway
and Denmark, and between the United Kingdom and the continent).
Even supposing ain initial community to have existed among al1 the
coaçtal States of the North Sea in respect of the continental shelf of
that Sea, it is not clear how such a community could have been dissolved

merely in part, to give place to an objectively and subjectively narrower
community; and al1this as a result, not of a collectiveagreement between
al1 the States participating in the community, but rather of a series of
bilateral agreements as between certain of those States, excluding the
Federal Republic.
3. Once the existence of a rule of general international law which
confers certain rights over the continental shelf on various States con-

sidered individually is adniitted, the ~iecessity inust be recognized for
such a rule to deteimine the subject-matter of the rights which it confers.
This means, seeing that those rights are conferred on the different States
individually, that the rule in question must necessarily indicate the
criterion upon the basis of which the continental shelf is divided between
the different States.

It is quite possible to speak of a "iule" cvncerning the apportionment
of thecontinentalshelf; but sight must not be lost of thefact that it isnot an
independent rule but rather an integral part of the same rule which con-
fers upon different States rights over the contineiltal shelfItfollo\vs that
failure to indicate the criterion according to whicli the continental shelf
is apportioned would notconstitute a true lacuna. A lacunaproperconsists
in the absence of any legal rule governing a given relationship. In the

matter with which we are concerned, on the other hand, a legal rule is
admitted to exist: that rule is precisely the one which confers upon
different States, considered individually, certain rights over the con-
tinental shelf. Now if that rule did not indicate the criterion for appor-
tionment, it woiilcl be an incomplete rule. But, unlike other incomplete
rules which no dclubt exist in the international legal system, this rule

is one the incomplete nature of which would have a niost particular
iniportance, because it is the deterniination of the very subject-matter
of the rightsconferred by the rule that would be omitted. Such an omission
would totally destiroy the rule.
Howevcr this may be, I am of the view that a criterion for apportion-
ment is reallp provided by the law: as will be seen, it is a criterion which
it is possible to deduce frorn the very rule which confers on different

States certain rights over the continental shelf.
The rule, or, niore correctly, the criterion for apportionment, can only
be a rule or criterion which operates automatically, so as to make it
possible to determine, upon the basis of such criterion, the legal situation
existing at any given moment. This requirement could notbe satisfied by
the rule which the Court declares asthe only rule governing the matter, a CONTINENTAL SHELF (DISS. OP.MORELLI) 202

seas, a liiie ~hich is identical witli tlie outer liinit of the territorial sea.
It is from that line i.hat the continental slielf appertaining to the State
commences.
The criterion for deterniining the exterit of the continental shelf which,

startiiig from that liiie, appertains to a State, by comparison with the
continental snelves appertaining to other States, can only be inferred
indirectlg fron-i the concept of contiguity itself. This concept postulates
the coincidence of tlie line of the boundary of the teri-itory of a State
toward the high seas, and the line from whicli the continental shelf of

tlie State comniences. Consequently, the criterion of contiguity cannot, in
itself, be used to determine points which do not fall on the said line, being
situate begond it. Nevertheless it is possible, for the determination of
these, to infer from f.hecriterion of contiguity another criterion: that of
~>rosit?~it,..n the basis of this criterion, there must be considered as
appertaining to a given State al1 points on the continental shelf which,

although not situated on the line delimiting the territory of the State, are
nearer to ihat line tlian to the line delimitiiig the territory of any other
State. Iiimy view, there is nothing arbitrary about this deduction; it is,
on the contrary, a wlhollylogical one.
From the criteriori of proximity, the passage is almost automatic to
that of c~cl~iiclistancseo, that it could be said that the two criteria merge.

The criterion of proximity determines points constituting a surface. But
there are some p0inf.s with respect to which the criterion of proximity
does not operate, and that because these points are not nearer to the
territory of one Stalte than to the territory of another State, because
they are eqiiitiistant iTom the territories of the two States. These points

forni the equidistance liiie, the line which constitutes the boundary
between the continental shelves of the two States. Points situate on one
side of this line, and consequently nearer to the territory of one of the
two States, are part of the continental shelf of that State; for the same
reason, points situati: on the other side of the line appertain to the con-
tinental sheif of the other state.

6. As will be observed, I consider the rule of general international law
prescribing the equidistance criterion for the delimitation of the con-
tinental shelves of various States to be a necessary consequence of the
apportionment effected by general international law on the basis of
contiguity. 1am therefore of the opinion thatit isnot necessary to ascertain
if a specific custom has come into existence in this connection. State

practice inthis field i:srelevarit not as a constitutive element of a custom
which creates a rule, but rather as a confirmation of such rule. Confirma-
tion of the ru!e is also provided, within certain limits, by the provisions
of the Geneva Convention.
So far as State practice is concerned, it should be observed that deli-
mitations effected by different States uiiilaterally have a greater impor-

tance than bilateral acts of delimitation. The latter, whether they con-
form to the rule or diverge froin it, inay simply amount to a manifestationof contractual autonoiny in a field in wliich the contracting States have
freedon~ of disposition. Thus their evidentiary value for or against the
rule is very Iimited.

7. The criterion of equidistance is employed in Article 6of the Geneva
Convention. Thefircitparagraph of that Article refers to the case oftwo or
more States whose coasts are opposite each other,in which case the equidi-
stance line is more specifically characterized as a rncrlianline. Paragraph2
follows the same equidistance criterion for the case of two adjacent
States. Nothing is said as to the relationship between two States which,
like Denmark and the Netherlands, are not adjacent, and which cannot

be considered to be opposite either.

It should be obseiived in this connection that the equidistance criterion
is in itself capable of being used in a11conceivable situations, even in
the relationship between two States in the situation of Denmark and the
Netherlands. Consequently, it is this general employment of the criterion
wliich, taking into account the reasons which justify it, should be con-

sidered as contemplated by the rule of general international law which
refers to that criterion.
So far as Article 6 of the Geneva Convention is concerned, inter-
pretation of that Airticle can, in my opinion, only lead to a similar con-
clusion. In other words, it must be considered that Article 6 of the Con-
vention too uses the equidistance criterion in a general way, even though,
according to its terrns, it does not expressly indicate anything more than

two possible applications of that criterion.
With reference to the distinction between the case of opposite States
and the case of adjacent States, which is often made use of, and which is
the inspiration of Article 6 of the Convention, it should be added that this
is a distinction which is very much a relative one. There are many cases,
actual or simply imaginable, with reference to which it would be difficult
to Say whether tliey were cases of opposite States or adjacent States.

8. Article 6 of the Convention, both in paragraph 1 and paragraph 2,
refers, in order to determine equidistance, to "the nearest points of the
baselines from which the breadth of the territorial sea. .. is measured".
Tt appears from the trailcluxprc;parutoircsof the Conference that other
proposais had been made in this coiinectioii, consisting of reference
either to the low-water mark or to the high-water mark. These two
methods, as well as that finally adopted by the Convention, consisting of

referring to the baselines, are no more than different methods of deter-
mining what constitutes the coast of a State.
However, 1 consider that, for the delimitation of the continental shelf,
it is not correct to relate equidistance to the coast, whether this is deter-
miiied in the way indicated in Article 6,or in some other way. (Of course,
quite a different problem is that of the delimitation, between two States,
of the territorial seii itself.) Consequentl1 consider that on this parti-cular point the Convention has diverged from general international law.

For, according to general international law, since the territory of a
State extends up to the outer limit of its territorial sea, which is the line
from which begins the continental shelf appertaining to that State, it is

necessarily to that line, as well as to the outer limit of the territorial sea
of another State, tkiat reference must be made to determine the equidis-
tance line which isonstitutes the boundary between their respective
continental shelves.
It is quite possible that the application of this method might lead to
a resultdifferent from that produced by the method adopte& in Article

6 of the Geneva Convention, which consists in referring to the baselines
from which the breiadth of the territorial sea is measured. The difference
in the results obtained from the two methods is quite obvious, for
example, where thei-eare two States lying opposite each other, in relation
to which the breadth of the territorial sea is deternlined in a different
way; this is so everi where the coastlines of the two States are perfectly

straight. But, even apart from the way in wliich the breadth of the
respective territorial seas of the two States concerned is determined, a
difference between the results of the two methods may well be the con-
sequence of the configuration of the coastlines of the two States.

So far as concerns the relationship of Denmark and the Federal
Republic and of the Federal Republic and the Netherlands, it iscertain
that the applicatiosn of the method 1 consider correct gives a result
different from that to which reference of equidistance to baselines leads,
although that difference is very slight. In point of fact, even if the possible
consequences which the configuration of the coastlines of the three States

might have according as to one or other of the two methods of delimita-
tion is used be disregarded and it be consequently supposed tliat the
triangle resulting from the boundary line between Denmark and the
Federal Republic and the boundary line between the Federal Republic
and the Netherlands has always the same shape, there is no doubt that,
if the method which 1 consider correct be employed, such a triangle

would be situated further towards the centre of the North Sea, which
would result in a srnall advantage for the Federal Republic.

9. The equidistai?ce rule does no more than iiidicate the way in which
the continental shelf is apportioned among different States; just as the
apportionment occ,ursautomatically, so the equidistance rule, an expres-

sion,as has been seen, of that apportionment, also operates automatically.
There appertains to each State ipsojure a certain area of the continental
shelf, as determinetl by virtue of the equidistance criterion.

In the first place, it is not necessary, in order that a State may become
the owner of rights; over a certain area of the continental shelf, for any COPJTINENTALSHELF (DISS. OP. MORELLI) 205

legal act to be performed for this purpose by the State concerned. There
is a difference here from what happens in the case of the territorial sea,
in respect of which there is attributed to each State the legal power to
determine its breadth, within certain limits, by means of a unilateral
legal act. The Convention on the Continental Shelf, in Article 2,para-

graph 3, States indeed: "The rights of the coastal State over the con-
tinental shelf do not depend on occupatioii, effective or notional, or on
any express proclan~ation." 1t follows that it is incorrect to speak, as
Denmark and the Netherlands have done on several occasions, of validity
and opposability er'paomncs of a delimitation effected by a State uni-
laterally, in accordance with the equidistance criterion. Unilateral

delimitation is not a legal act upon which the rights of the State over the
continental shelf depend, and of which the validity or invalidity might
be open to argument. Unilateral delimitation is simply a manifestation
of State conduct, to be considered as legitimate or otherwise according
to whether it is or is not in conformity with the apportionment of the
continental shelf automatically effected by international law.

10. Nor is it necessary, for the equidistance rule to be able to operate,
that an agreement be concluded on the question by the States concerned.
An agreement in coriformity with the equidistance criterion does no more
than record a situation which has already arisen automatically; thus,
such an agreement hiasonly a purely cfc~c~laratoc ryaracter. But inasmuch
as it is a matter of rights of which States can dispose freely, it is quite
possible for an agreement between the States concerned to diverge

from the equidistance criterion. In this case, the agreement has a consti-
tutivceharacter, because it modifies the existing situation, as it results
from the automatic functioning of the equidistance rule.
None of this is contradicted, substantially, by the wording of Article
6 of the Geneva Convention. It is of course true that that Article. in
paragraphs 1and 2.,mentions agreement first, and thereafter, in case of

"absence of agreement", the equidistance criterion. But this does not
by any means signify that logical and chronological priority is attributed
to agreement, in the:sense that only in the absence of agreement can the
equidistance rule operate; this would confer on that rule the character
of an alternative rule:.Ifthe provisions of Artic6were understood in chis
sense, several questions could be raised, to which it would not be easy to

reply. At what monient would it be necessary to establish that the con-
dition of absence omfagreement, to which the functioning of the equi-
distance rule is subordinated, is fulfilled? What is the legal situation
either before that niornent or before the conclusion of an agreement if
any'?1sit community?What would be the extent of the continental shelf
subject to such a community?
In fact, in referring to agreement, Article 6 simply means that the

States concerned are always free to delimit the continental shelf, by
means of an agreernent, in the way they think most appropriate, even
so as to modify, if appropriate, the existing situation resulting from the CONTINENTALSHELF(DISS. OP. MORELLI) 306

application of the equidistance rule. It is to this rule that there must be
attributed, even under Article 6, logical and chronological priority.

When itmentions agreement first, Article 6 adopts the point of viewof
a court, or of any person or body who proposes to determine the existing
legal situation. In order to do this, it is necessary in the first place to
ascertain whether ail agreement has been concluded by the States con-
cerned. If this isthe case,thereis nothing to do but hold such agreement to
be decisive, because the situation prior to the agreement, and resulting

from the equidistance criterion, is no longer in force. It is only in the
absence of agreement that the equidistance rule must be applied, by
finding for the apportionment effected by that rule, which has not been
modified by any agreement.
11. The equidistance rule, asa rule of general international lawcodified
in Article 6 of the GlenevaConvention, is, as has been said, a rule which
operates automatica.lly. This characteristic of the rule does not prevent
the possibility being imagined, from an abstract point of view, of its
being limited by one or more exceptions. But an exception-rule properly
so called would not be imaginable except as a rule also of an automatic
character. Such would be a rule which, by reference to certain possible
circumstances, precisely defined by the rule itself (for example, the
existence of an island having certain characteristics as regards its dimen-
sions and position, etc.), declared that in such a case the apportionment
is effected (still automatically) according to a criterion other than that
of equidistance, which criterion would also have to be specified by the
rule.

But no such exception-rule exists in general international law. Nor can
such a rule be consitlered to be contained in Article 6 of the Convention,
which, both in paragraph 1 and paragraph 2, declares the equidistance
criterion to be applicable "unless another boundary line is justified by
special circumstances". With regard to this rule of the Convention, al1
the Parties to the present caseshave always referred toit as an "exception"
to the equidistance rule; the argument has been concentrated on what
might be called a quantitative aspect of the matter, namely the wider or
narrower scope of the so-called "exception".

In my opinion, there is no question at al1of a true exception: for the
simple reason that the special circumstances rule, as it isfound in Article 6
of the Convention, is not capable of operating automatically. In the first
place, itdoes not specify in any way what are the circumstances which
would prevent the equidistance rule from operating. Secondly, nothing
is said as to the efrect which the circumstances contemplated should
bring about, because the rule is no indication whatsoever of what delimi-
tation should replace that resulting from the equidistance criterion. The
determination of both these issues could only be made by agreement

between the States concerned, or by an arbitral award. So long as there CONrINENTA LHELF (DISS.OP. I\IORELLI) 207

is neither agreement nor award the situation remains that which results
frorn the equidistanci: criterion.
It must be conclu,ded on this issue that the equidistance rule is an
absolute rule, in the sense that itis not limited by any exception-rule
properly so called. E:ven the case of the existence of an island or pro-

montory which has an abnormal influence on the equidistance line, does
not by any means constitute an exception, because such a circumstance
does not in itself prevent the equidistance rule from operating.
In my opinion the: Court ought first to have stated the equidistance
rule as a rule of general international law of an absolute nature (i.e., not
limited by any exception), adding that that rule was applicable to the

delimitation as between the Parties of the areas of the North Sea con-
tinental shelf appertaining to each of them. It follows (but this is a
consequence which it was not necessary to state expressly) that the
apportionment now existing is precisely that which results from equidis-
tance.

* * *

12. The equidistarice rule is a necessary logical consequence of the
apportionment of the continental shelf effected by international law by
virtue of contiguity. Any consideration of equity falls outside the rule
as such. It cannot be said that its purpose is to effect an equitableappor-
tionment, so that it wiillonly operate in cases where its application leads

toan equitable result. Were it so it would be necessary to exclude entirely
the equidistance rule as a rule of law and to regard the rule governing
the apportionment of the continental shelf as something quite different.
Such rule would be the rule of equitablesharing out. Equidistance would
be but one possible rnethod of arriving at the result of equitable sharing
out aimed at by the legal rule.
But the purported rule of equitable sharing out cannot be accepted.

Such a rule, as a rule the content of which is to refer the matter to
equity, could not automatically effect the sharing out of the continental
shelf among the various States. Such sharing out could only be the
consequence of an a.greement between the States concerned or else of
an award which, beiiig based upon equity, would not be a declaratory
but a constitutive award. Until the moment when the agreement was

reached or the award handed down there would be no apportionment.
The situation would be one of community; a hardly conceivable situation
which would be in contrast with the attitude of international law on this
subject.
13. AI1that 1have just said does not mean that international law does
not concern itself at al1with the equitable nature of the apportionment;

1 am merely saying that considerations of equity cannot act so as to
prevent the operation, at any rate initially, of the equidistance rule.
The following is, in rny view, the manner in which international law has
recourse. in this field, to equity. In riiy opinion, thi: equidistance rule (an absolute rule, operating in

al1cases) is accompariied by another rule, which is not an exception-rule
because it has an importance of its own.This latter ruleenvisages circum-
stances which exercise a certain influence on the application of the
criteriori of equidistance, in the sense that such application produces
an iiiequitable result. The purpose of this rule is to correct such a result.
It must be pointed out here and now that in order for it to be possible

for this rule to operate it is not sufficient that just any divergence be
noticed between the result of applying the equidistance rule and an
absolutely equitable apportionment. On the contrary, there must be a
particularly serious discrepancy.
What is the content of the rule in question? In what way, in other
words, does the rule iseekto attain its end?
In my opinion, the rule merely obliges the States concerned, in cases

where the circumstances envisaged occur, to negotiate among themselves
an agreement to reviciethe existing situation. In other words, the agree-
ment modifying the existing situation, an agreement which can always
be freely concluded, becomes, in the circumstances envisaged, a com-
pulsory act. It follows that until such time as a revision agreement is
concluded (or, failing agreement, an award is handed down on this

subject) the situation resulting from the application of the criterion of
equidistance niust be considered as the situation in force.
1 consider that it is the rule of general international law to which
1have just referred which underlies Article 6 of the Geneva Convention
when it provides that the equidistance line shall apply "unless another
boundary line is justified by special circumstances". Seeing that the

special circumstances rule can only be brought into operation with the
agreement of the Startes concerned, it is precisely an agreement which
the rule envisages as the subject-matter of an obligation which it lays
upon the States concerned. Here too, it is a question of an agreement
for the revision of the situation resulting from the automatic application
of the equidistance ride, which, for the Convention also, constitutes the

primary rule.
14. It is not necessary to determine v~hatcircumstances can give rise
to a seriously inequitable application of the criterion of equidistance
and uhich for that reason may, by virtue of the rule to which 1 have
just referred, entitle a State to claim thatthe boundaries of itscontinental
shelf should be modified. What matters is not the circumstances as such

but rather the inequitable result to wliich they lead.
They iiîay be geographical circurnstances and also circumstances of
a different kind. Among geographical circumstances theremay be recalled
the case, frequently nnentioned, of a promontory or islet situated off the
coast of a State. It miist further be recognized that the configuration of
the coastline of a State in relation to the coastline of another adjacent
State may also entail an inequitable application of the criterion of equidis-

tance. And it must be added that a circumstance having the same con-sequence may consist in the configuration of the coastline of one State
in relation to the cisastlines of two other adjacent States and in the

combined effect of t.he application of the criterion of equidistance to
the delimitation of the continental shelf of the first State in relation to
the continental shelves of each of the other two States. This is precisely
the situatiori which occurs in the Dresent cases.
15. 1would point out in this connection that there is no question now
of effecting an apportionment of the continental shelf among the Parties
to these cases PX nov.0and that it is not a question of how the boundary

lines must be drawn in order to arrive at such an apportionment: namely
whether the two boundary lines (German-Danish and German-Nether-
lands) must be dravin conjointly or else independently of each other.
It is not at al1a question of drawing lines.
The problem supposes a certain apportionment already effected by
the automatic operation of the equidistance rule, the equitable or in-
equitable character of which apportionment has to be appraised. This

apportionment, characterized by equidistance lines delimiting on each
side the continental ishelfof the Federal Republic, is a consequence of
the real geographical situation, a situation for which it is not possible
to substitute purely hypothetical situations. Admittedly, if one were
to start from the hypothesis that the Federal Republic constituted a
single State with Denmark, the result of applying the criterion of equidis-
tance for drawing th<:boundary line between that hypothetical tat tand

the continental shelf lbelongingto the Netherlands might be recognized as
equitable. The same thing would have to be said with regard to the
boundary line between Denmark and a hypothetical State comprising
the present Federal Republic and the present Netherlands.
Matters are otherwise if one considers (as must be done) the real
geographical situation and the results to which, in relation to that geo-

graphical situation, the application of the criterion of equidistancleads.
1am still referring to the results because it is those results that must be
appraised. It is not a matter of judging the equitable or inequitable
character either of a boundary line or of two boundary lines, whether
considered conjointl:y or separately. The result can only take concrete
shape, in the present case, as the combined effect of the criterion of
equidistance for determining both boundary lines together.

In my opinion, the gravely inequitable nature of the result to which
the application of the criterion of equidistance in the present case leads
must be recognized, this inequitable character consisting in the remark-
able disproportion between the area of the continental shelves pertaining
to each of the three States on the one hand and the length of their
respective coastlines on the other; and this is so even if for the coastline
of the Federal Republic there be substituted another shorter line, such

as the line Borkum-Slylt. 16. Having indicated the solution that must be given, in mlr opinion,
to the problem of the substantive law, 1 shall now turn to certain pro-

blems of a procedural nature which arise in these cases and which
concern the powers of the Court.
There is first ofl1a problem which is connected with the substantive
point which 1 have just examined. It is the problem, as expressed in a
question put to the: Parties in the course of the oral proceedings, of
whether "the two Special Agreements entitle the Court to enter into an
examination of the combined effect of the two boundary lines pro-
claimed by Denmark and the Netherlands". To this question Denmark
and the Netherlands returned a negative answer.
Now it is quite true that the two disputes to which the two Special
Agreements refer are quite distinct. But they are two disputes which
have a certain connection with each other, because the claim advanced
by the Federal Repiiblic as against Denmark, with a view to the delimi-
tation of the contiriental shelf as between the two States in a certain
way, is based upon the inequitable nature of the consequences to which
the criterion of equidistance would give rise if conjointly applied both
to the delimitation ils between the Federal Republic and Denrnark and

to the delimitation as between the Federal Republic andthe Netherlands.
The claim advanced by the Federal Republic as against the Netherlands
presents similar features.
Itis perfectly possible to envisage, as did Counsel for the two King-
doms, a situation iri which the Court were seised of a request for the
resolution (in thereal sense) of only one of the two disputes, for example,
that between the Federal Republic and Denmark. Now if in such a
situation the Federal Republic asked the Court to determine not only
its boundary with Denmark but also its boundary with the Netherlands,
there can be no doubt that it would not be open to the Court to give a
decision in the absence of the Netherlands, whose rights would be at
issue. Insuch event, it would not be inapposite to cite the Judgment of
the Court in the Monetary Gold case. If on the contrary the Federal
Republic confined itself, in the same situation, to a request in respect of
delimitation vis-à-vis Denmark only, 1 do not see that there would be
any obstacle to deciding the dispute, even in the event that, for the
purposes of its decision, the Court had also to take into consideration
the consequences of the criterion of equidistance on the delimitation

between the Federal Republic and the Netherlands.
But these are hypothetical situations which have nothing to do with
the present proceedings.
In the present proceedings the Court was confronted with two Special
Agreements, each of which requested the Court not to settle the dispute
to which it related but rather to determine the principles and the rules
of international law applicable to the delimitation of the continental
shelf as between th,: parties to each Special Agreement (respectively
the Federal Republic and Denmark and the Federal Republic and theNetherlands). It is altogether true that, despite the joinder of the two
cases, each Special .4greement had to be considered separately. But it
was quite possible for the Court, on the basis of one of the Special

Agreements and leaving the other out of account (and even if the other
had not existed at ail), to find as to the principles and rules applicable
to the delimitation of the continental shelf as between the parties to
the Special Agreement under consideration; and that remains true even
if the Court had thereby been led to lay down a rule requiring account
to be taken of the combined effect of the equidistance line as between
the parties to the said Special Agreement, and of the equidistance line
between the Federal Republic and the State which was a party to the
other Special Agreement. The problem of whether such a rule exists or
not is one which coricerns the substance, and 1have already considered
it, answering it in the affirmative.
17. Having regard to the terms of the Special Agreements, which
speak of principles and rules applicable to "delimitation", etc., the pro-
blem arises of whether the Court had the power to lay down a rule
which, like the one which 1 indicated, really concerns not delimitation
qua statement of the:existing situation but rather a modification of the
existing situation.

In reality, from the terminological point of view, a distinction must
be made between delimitation which consists in determining the existing
situation and has m.erely declaratory effects, and apportionment, which
has effects of aconsititutive nature.
One may speak of apportionment, in the first place, in order to denote
the result of the aiitomatic functioning of certain rules of law. The
placing on record of such a result constitutes the delimitation. This
shows that delimitation implies the application of the rules concerning
apportionment. It follows that the task with which the Court is entrusted
by the Special Agreements, the determination of the principles and rules
applicable to the de:Iimitation, consists, in the first place and without
the slightest doubt, of the task of the determination of the rules and
principles by virtue of which the continental shelf is automatically appor-
tioned as between th.evarious States.
The term apportionment is also used to denote the sharing-out of
something held in common. And one may also speak of apportionment
to indicate a modifi.cation of the apportionment as it eventuates at a

given time.
Consequently, if the term "delimitation" employed in the Special
Agreements is understood in its proper meaning, the Court's task would
have to be considered as confined to determining the rules and principles
which effect, automntically, the apportionment of the continental shelf,
that apportionment being indeed presupposed by the delimitation. It
would not have been open to the Court to indicate either the rules, if
any, concerning the apportionment of the continental shelf considered
hypothetically as something held in comrnon, or the rules which, liketheone which 1declared to exist, relate to a modification of the apportion-
ment in force. Nor would it have been open to the Court to indicate the
rule which it has determined, which also relates to apportionment.
The Special Agreements must nevertheless be interpreted with due
regard to the characteristics of the disputes to which they relate. Now the
two disputes are chiaracterized by the Federal Republic's claim to a
certain area of the continental shelf lying on the faride of the equidis-
tance lines. The Federal Republic has never asserted, in support of this
claim, that there is a right which it enjoys by virtue of the automatic
functioning of a leg,alrule. Rather than a delimitation on the basis of
an apportionment already effected, it is an apportionment which ought
to be effected to which the Federal Republic has always laid claim.
Since the disputes do not concern solely delimitation qua recording of
the existing situatiori,t is necessary to interpret the Special Agreements
accordingly, and to hold that, despite the term "delimitation" which
they employ, the Special Agreements are intended to authorize the Court

to determine even the rules, if any, relating to apportionment, more
particularly the rule relating to possible modification of the existing
apportionment.
18. Given that the task entrusted to the Court by the Special Agree-
ments is to determine certain principles and certain rules of international
law, it might be thought that the Court ought to have confined itself
to stating the rule vv'hich,in my opinion, makes revision obligatory in
the event that certain circumstances occur, without finding as to whether
those circumstances actually exist. Tt would be for the Parties, in the
agreement provided for in paragraph 2 of Article 1of the Special Agree-
ments, to ascertain whether circumstances rendering revision obligatory
actually exist and, i'fsuch circumstances are acknowledged to exist, to
draw the conclusions therefrom.
It must nevertheless be pointed out that the Special Agreements
request the Court to indicate the principles and the rules which are
"applicable to the delimitation as between the Parties of the areas of the

continental shelf in the North Sea which appertain to each of them".
By referring to cert,ain principles and certain rules as "applicable" to
the delimitation of the continental shelf as between the Parties, the
Special Agreements iempowerthe Court, in my opinion, not only to state
the rules and principles, but also to determine what actually is the factual
situation and to declare, on the basis of what it finds, whether the rules
and principles it has determined ought to be applied. Had the Court
come to an affirmative conclusion on this factual point, it would still
have been for the Parties,intheiragreement, to work outthe consequences
of that finding.
As regards, in particular, the rule 1have stated to exist, which renders
revision obligatory, it was for the Court to determine whether the
circumstances which that rule contemplates had actually occurred in the
present context, more particularly with regard to the gravely inequitable CONTINENTALSHELF(DISS. OP. MORELLI) 213

nature of the prevailing apportionment. In the event that the Court had
arrived at an affirmative conclusion on that point (as 1think it ought to
have done), the Court would thereby have found that the rule ought
to be applied; a finding equivalent to declaring the Parties to be under
an obligation to negotiate an agreement for revision.
19. The rule which renders it obligatory under certain circumstances
to negotiate an agreement for the revision of the existing situation, as
it results from application of the equidistance criterion, is a legal rule
the content of which is to refer the matter to equity, from two different
aspects. In the first place, it ison the inequitable character of the prevailing

apportionment that the application of the rule depends. In the second
place, the rule does not directly indicate the criteria in accordance with
which the revision ought to be effected, because it refers the matter to
equity for that purpose also. Nevertheless, despite the fact that it refers
the matter to equity.,the rule does not cease to be in itself a rule of law.
Hence the Court's power to lay it down, in conformity with the terms
of the Special Agreements, which request the Court in terms to indicate
principles and rules of international law.
Furthermore, given that the Court's task was not to settle disputes
but simply to state principles and rules of law, it would be beside the
point to enquire whether it was a judgment on the basis of law or a
judgment onthe basis of equity that the Court was called upon to render.
It was, in reality, aj~udgmentwhich could be given neither on the basis
of equity nor on the basis of the law, for the very simple reason that
thejudgment was, no4to apply the law, but,on thecontrary, to declare it.

Itis nevertheless necessary to pose a rather difficult question, the

answer to which depends on the nature of the renvoi to equity by the
legal rule. It is nect:ssary to ask whether, after stating the rule which
renders negotiation of a revision obligatory in the event that certain
circumstances are present, and after finding that those circumstances
exist in the present cases, the Court ought also to have indicated the
criteria on the basis of which the revision should be carried out.
This question would have to be given an affirmative answer if the
criteria of equity could be deemed to be an integral part of the rule of
law, in view of thefa.ctthat it is to equity that the latter refers the matter.
If that is the point of view adopted, it must be held that the Court, in
indicating the criteriia of equity would have done no more than specify
the concrete content of the rule of law it was called upon to determine.
But the premise for such an answer to the question would not be
correct. The fact that a rule of law makes a reference to extra-legal
criteria by no means signifiesthat those criteria are embodied in the rule
of law. They are criteria which the legal rule makes it obligatory to
apply, but which rernain outside that legal rule.
It must be concliuded that the Court, after stating the rule which

makes revision of the:existing situation obligatory, ought to haverefrainedfrom indicating the criteria of equity in accordance with which such a
revision has to be effected. From that standpoint, the powers of the

Court in relation to equity were different from the powers which it
possessed to find the existence of circumstances rendering revision oblig-
atory. The reason is i:hat, where the last point is concerned, the powers of
theCourt went beyoinda mere finding as to the rule of law; for the Court
was, in addition, called upon to determine the factual situation (including
the inequitable character of the prevailing apportionment) on which the

applicability of the rule to the concrete case depends.

20. In examining the problem of the substantive law, 1 arrived at a

twofold conclusion. 1stated, in the first place, that the apportionment of
the continental shelf between different States takes place automatically
on the basis of the criterion of equidistance.1added,in the second place,
that the equidistance rule is accompanied by another rule which, where
the result of applyi-ng equidistance is in flagrant conflict with equity,
obliges the States concerned to iiegotiate an agreement between them-

selves to revise the e~tistingsituation. This rule is applicable to the instant
situation, because the circumstances which it contemplates are there pre-
sent.
The Court too lays down in its Judgment a rule requiring an agree-
ment to be negotiated. That rule refers to equity so far as concerns the
criteria to which the agreement must conform, in the same way as the
rule 1have stated to exist refers to equity not only because it is upon the

basis thereof that itimust be seen whether the circuinstances upon which
its application depends are present, but also, precisely as in the case of
the rule laid down by the Court, for the determination of the criteria to
which the agreement it requires to be negotiated must conform.
The fact that the rule laid down in the Judgmeiit likewise refers to
equity for the deterimination of the criteria upon which the agreement

must be based ought to have led the Court to state the characteristics of
such a rcmiloi, in order to resolve the question of whether indicating
those equitable criteria fell within the task entrusted to the Court in the
Special Agreements, whicli was solely to determine rules of law. 1 think,
for the same reasons as 1 stated in the preceding paragraph, that the
answer that ought to have been given to this question, which the Court

has not raised at all, is in the negative.
Between the rule laid down by the Court and the rule 1have stated to
exist, there are, however, profound differences, which should be stressed.
Those differences conceri1 the relationship in which each of the two
rules stands towards other rules of law and, in consequence thereof, the
very content of the two rules, and, in particular, the role played by the

agreement which each of them contemplates. CONTINENTALSHELF(DISS. OP. MORELLI) 215

The rule 1 have si:ated to exist is a subsidiary rule, in the sense that it
presupposes another rule, which may be termed the primary rule; that
rule is the rule of equidistance. Seeing that this latter rule is a rule which
functions automatically, the continental shelf is ipsjure apportioned in
a certain uay. It is in relation to this situation, which is presupposed in

the subsidiary rule, that the latter operates, where appropriate, in the
sense of requiring the States concerned to negotiate an agreement to
revise it. Once concluded, that agreement merely modifies a situation
already regulated by the law in a certain way.
The rule laid down in the Court's Judgment, on the other hand, is the
only rule concerning the apportionment of the continental shelf. It is a

single rule, even though the Judgment distinguishes in its reasoning a
first rule, which requires negotiations to be held, from what is termed
the rule of equity, and even though in the operative provisions of the
Judgment the Court, after having stated that delimitation is to be erected
by agreement, referrj to equitable principles, going on to indicate certain
criteria which the agreement between the States concerned must or inay
apply. It is quite clear, in fact, that the reference to equity and the indica-

tion of certain critei-ia are merely a means of defining the contents of the
rule requiring negotiation: they are by no means a formulation of in-
dependent rules or principles additional to the rule requiring negotiation.
Now the rule laid down by the Court (the only rule on this subject) is
not a material rult: which directly governs the apportionment of the
continental shelf. It is, on the contrary, an instrumental rule, i.e., a rule

which contemplates a certain way of creating the material rule. That way
consists in agreement between the States concerned. For so long as no
agreement has been concluded, there is no material rule and there is no
apportionment at all. Hence arises that situation of a legal void to which
1have already had occasion to refer; a situation which 1consider almost
inconceivable and in any event regrettable.

It may be questioned in this connection how the Court's view that
delimitation (or, more correctly, apportionment) can only take place
by means of agreeirient is reconcilable with what is stated in paragraphs
19 and 20 of the Judgment. In those paragraphs the Court rejects the
doctrine of the jusi: and equitable share for the reason (paragraph 19)
that the rights of a !)tate over the continental shelf, at least as regards the
area that constitutes a natural prolongation of its land territory under

the sea, are inherenr rights existing ipsofucto andab initio, for the reason,
in other words (paragraph 20), that "the notion of apportioning an as
yet undelimited area considered as a whole (which underlies the doctrine
of the just and equiitable share), is quite foreign to, and inconsistent with,
the basic concept of continental shelf entitlement,accordingto which the
process of delimite~tion is essentially one of drawing a boundary line

between areas whi~rhalready appertain to one or other of the States
affected". Despite the difficulty of grasping the exact sense in which the
terms "delimitationi" and "apportionment" are used in the Judgment, itseems that in the paragraphs 1 have just mentioned the Court recognizes
that, independently of any agreement, there are "areas which already
appertain to one or other of the States affected", in other words, that
there is an already existing apportionment (properly so called) of the
continental shelf arnong the States affected, to each of which a certain
area is autoinatically assigned.

21. The obligation whicli arises from the rule stated in theJudgment to
constitute what is c.alledthe "first rule", i.e., the obligation to negotiate
the delimitation of the continental shelf, is regarded by the Court as
being identical with the obligation assumed by the Parties under Article 1,
paragraph 2,of the Special Agreements (paragraph 86 of the Judgment).
With regard to this assimilation, 1 would refer to what 1 shall have to

say hereafter. So far as concerns the obligation imposed by the rule laid
down in the Judgment, it seems that that obligation is conceived of by
the Court as independent of the existence of any dispute; this emerges too
from the reference made in the Judgment, in this connection, to the
Truman Proclamation. This significance of the principle stated by the
Court is a wholly natural one, because the requirement of a deliinitation

or, more precisely, of an apportionment, the need, in other words, to
fil1 the legal void of which 1 have just spoken, is a requirement which
occurs eveii apart from the existence of a dispute between the States
concerned.
Now the obligation to negotiate an agreement for theapportionment of
the continental shelf, according to the Court, is only a special application

of a principle which is said to underlie al1international relations. There is,
it seems, a general cibligation to negotiate which itself too is independent
of the existence of ildispute.
In my opinion, it is not at al1 possible to recognize the existence of
any general obligation to negotiate. A State which is asked by another
State to enter into, negotiations with a view to the conclusion of an

agreement for the settlement of certain relations may, without doing
anything contrary to law, refuse to do so, unless there be a specific rule
requiring negotiation.
As for Article 33 of the Charter, which is rnentioned in the Judgment,
that Article refers only to the case of a dispute, and more precisely,
to a dispute "the cc~iitinuanceof which is likely to endanger the mainte-

nance of international peace and security". And, even within those limits,
Article 33 by no means creates an absolute obligation to seek, by means
of negotiation, a i;olution to the dispute. The obligation imposed by
Article 33 is to seek the solution to a dispute by pacific means: negotia-
tions are but one of the pacific means which the aforesaid Charter

provision mentions as capable of being utilized. It is, in other words,
an alternative obligation; so that Article 33 woiild by no means be
violated in the perfectly conceivable hypothesis of a State's refusing to
negotiate, wliile see:kinga solution to the dispute by other pacific means. 22. It must further be made clear that the negotiations which the
Parties are required to hold on the basis of the rule laid down by the
Court, as well as ori the basis of therule which 1 have stated as a sub-
sidiary rule applicable to the instant situation, have nothing to do, as
such, either with the negotiations that were unsuccessfully carried on
in 1965 and 1966or with the negotiations envisaged in Article 1, para-
graph 2, of the Special Agreements. The 1965 and 1966 negotiations
were aimed at settling by agreement the disputes which had arisen
between the Parties. The negotiations envisaged in the Special Agree-
ments will have the !jameaim, that is to Say,the conclusion of agreements
for the solution of the same disputes, it being understood that such
agreements will necessarily have to be based upon the principles and
rules laid down by the Court. On the other hand, the obligation to
negotiate arising ouit of the rule stated by the Court is independent of
any dispute; it is aimed not at the resolution of a dispute, which, in
some case other than that with which the present cases are concerned,

might even be non-existent, but rather at the creationex novo of a special
rule concerning the apportionment of the continental shelf.
It isuite true, however, that the discharge by the Parties to the present
cases of this latter obligation implies at thesame time the discharge of
the obligation whicli they assumed under Article 1, paragraph 2, of the
Special Agreements.. But this is a mere coincidence, resulting from the
fact that the rule determined by the Court (a rule with which the agree-
ments envisaged in the Special Agreements must conform) is not a
material rule but an instrumental rule requiring the negotiation of agree-
ments. In the event of the Court's having stated solely a material rule,
there would still be an obligation to negotiate, but it would only be the
obligation arising out of Article 1, paragraph 2, of the Special Agree-
ments.

(Signed) Caetano MORELLI.

Bilingual Content

OPINION DISSIDENTE DE M. MORELLl

1. Les deux compromis demandaient à la Cour d'indiquer ((les prin-
cipes et les règles du droit international applicables à la délimitation
entre les Parties des zones du plateau continental de la mer du Nord

relevant de chacune d'elles..11Il est bien clair que les principes et les
règles que la Cour étaitappeléeà établir ne pouvaient être que des prin-
cipes et des règles obligatoires pour chacune des deux parties à chaque
compromis vis-à-vis de l'autre. Il en résulte que les principes et les règles
devant former l'objet de la constatation demandée à la Cour étaient les
principes et les règles du droit international généralet non pas les prin-

cipes et les règles contenus dans la Convention de Genève sur le plateau
continental du 29 avril1958 (en particulier dans son articl6),convention
qui, n'ayant pas été ratifiépar la République fédérale,n'est pas obliga-
toire, en tant que telle, pour celle-ci.
Sur ce point je partage entièrement l'avis de la Cour. Je pense toutefois,
à la différence de la Cour, que, pour constater les principes et les règles

du droit international généralconcernant la délimitation du plateau con-
tinental, il pourrait être utile, toutes les fois que les circonstances l'exigent,
de tenir compte de la Convention en tant qu'élémenttrès important de
preuve du droit international général,parce que le but de la Convention
consiste précisément,du moins en principe, àcodifier le droit international
généralet que ce but a été,dans certaines limites, effectivement atteint.

A propos de la Convention, on peut faire remarquer qu'elle a été signée
par la République fédérale. Cela veutdire que la République fédérale
a participé à une opération technique qui, dans les limites où la Conven-
tion se propose un but de codification, a consisté à établir le droit inter-
national général.Par sa signature la République fédéralea exprimé une
opinion qui, dans les limites sus-indiquées, peut être qualifiéed'oyinio

jurisM .ais il s'agit d'une simple opinion et non pas d'une déclaration de
volonté qui ne pourrait être faite que par la ratification. En effet c'est
seulement par la ratification que les Etats signataires d'une convention
expriment la volonté soit d'accepter des règles nouvelles soit, s'il s'agit
d'une convention de codification, de reconnaître comme obligatoires des
règles préexistantes.

L'affirmation d'après laquelle le but de la Convention de Genève a été,
du moins en principe, de codifier le droit international général n'estpas
contredite, à mon avis et contrairement à l'opinion de la Cour, par le DISSENTING OPINION OF JUDGE MORELLI

1. The two Special Agreements asked the Court to indicate "what
principles and rules of international law are applicable to the delimita-
tion as between the Parties of the areas of the continental shelf in the
North Sea which appertain to each of them .. .".It is quite clear that
the principles and rules that the Court was called upon to establish could

only be principles and rules which were binding for each of the two
parties to each Spec:ialAgreement vis-à-vis the other Party. It follows
that the principles and rules which had to be the subject of the finding
requested of the Cclurt were the principles and rules of general inter-
national law and not the principles and rules contained in the Geneva
Convention on the Continental Shelf of 29 April 1958(and in particular
in Article 6 thereof), hi ch Convention, not having been ratified by the
Federal Republic, was not as such binding upon it.
On this point 1 entirely share the opinion of the Court. Unlike the
Court, however, 1 think that in order to find the principles and rules
of genei-alinternational lawconcerning the delimitation of the continental
shelf itmight be useful, whenever the circumstances so require, to take
account of the Convention as a very important evideiitial factor with
regard to general international law, because the purpose of the Conven-
tion is specifically,aitany rate in principle, to codify general international
law and because thi,; purpose has been, within certain limits, effectibely
realized.
In coniiection wiith the Convention it may be observed that it was
signed by the Federal Republic. This means that the Federal Republic

participated in a technical operation which, to the exteiit of the Conven-
tion's avowed purpose of codification, consisted in the establishment of
general international law. Byits signature the Federal Republic expressed
an opinion which, within the limits indicated abo~e, may be qualified
as an op;t~ioj~cris.Butit was a mere opinion and not a statement of will,
which could oiiiy be expressedbyratification. Forit is only by ratification
that the States sign,atories to a Convention express their will either to
accept new rules or, in the case of a codification convention, to recognize
pre-existing rules as binding.

The statement that the purpose of the Geneva Convention was, at
least in principle, to codify generalinternational law is not contradicted,
in my view and coritrary to the opinion of the Court, by the fact that fait que l'article 12 de la Convention admet la possibilité de réserves
(possibilité qui existe notamment par rapport à I'article 6). En effet la
faculté de formuler des réserves esttout à fait compatible avec le carac-
tère de codification propreà une convention ou à une règleparticulière
de celle-ci. Bien entendu la faculté deformuler la réserve netouche qu'à
l'obligation contractuelle découlant de la Convention; cette obligation,
c'est-à-dire l'obligation vis-à-vis des autres contractants de considérerla
règle dont il s'agit comme règle coutumière, est exclue pour 1'Etat qui
formule la réserve.
Il ne faut pas perdre de vueà cet égard,que toute codification a néces-
sairement une portée subjectivement limitée - limitéeaux Etats parties
à la convention de codification. Or il est bien concevable qu'une limite
ultérieure soitapportée, par l'effetde réserves,àune disposition particu-

lière de la convention, dans ce sens que l'obligation d'accepter la codifi-
cation est, par rapport àcette disposition, exclue pour quelques-unes des
parties, à savoir les Etats qui ont formulé la réserve.Cette circonstance
n'empêchepas du tout de considérerla disposition susceptible de réserve
comme codification du droit international général.

Il va sans dire que la réserve n'a rieà faire avec la règlecoutumière
en tant que telle. Si cette règle existe, elle existe aussi pourEtat qui a
formuléla réserve,de la mêmefaçon qu'elle existepour lesEtats qui n'ont
pas ratifié. On ne peut déduire de cela l'inadmissibilité de la réserve,
étant donné que la réserve est destinée à jouer uniquement sur le plan
contractuel, c'est-à-dire par rapportà l'obligation, découlant de la con-
vention, de reconnaître la règle dont il s'agit. Pour cette mêmeraison

aucune importance ne peut être attachéeau fait que les Etats qui ne rati-
fient pas la convention, et qui partant restent complètement étrangers au
lien contractuel, n'ont pas la possibilitéde formuler la réserve.

Ayant éclaircimon point de vue pour ce qui concerne la valeur à
reconnaître à la Convention de Genève en tant que preuve du droit
international général,c'est sur le terrain de celui-ci que je vais me placer,
c'est-à-dire sur le terrain mêmeoù s'est placél'arrêtde la Cour. Je ne
ferai mention de la Convention de Genèveque pour constater qu'en son
article6 elle s'est conformée,dans la substance et dans certaines limites,
aux règlesdu droit international généralen matière de délimitation du
plateau continental.

2. J'estime convenable de partir d'un point qui est généralementadmis
et qui n'est contestépar aucune des Parties: l'existencede certains droits
subjectifs ayant pour objet le plateau continental.Il n'est pas nécessaire,
aux fins des présentes affaires,de déterminer la nature, le contenu et les
limites de ces droits subjectifs que l'article 2 de la Convention de Genève,Article 12 of the Convention recognizes the possibility of reservations
(including reservations to Article 6).For the power to make reservations
is entirely compatible with the codification character of a convention

or of a particular riile contained in a convention. Naturally the power
to make reservations affects only the contractual obligation flowing from
the convention; that obligation, that is to say the obligation vis-à-vis
the other contracting parties to consider the rule in question as a custo-
mary rule, is excluded in the case of the State making the reservation.

In this connectiori, sight must not be lost of the fact that the ambit
of any codification is necessarily subjectively limited: i.e., limited to the
States parties to the codifying convention. It is quite conceivable for a
particular provision of the convention, through the effect of reservations,
to be affected by a further limitation, in the sense that the obligation to
accept the codification is, in relation to that provision, excluded for

soine of the parties,i.e., for those States which formulate the reservation.
This circumstance iri no way co!istitutes an obstacle to considering the
provision open to reservation as a codification of general international
law.
It goes without saying that a reservation has nothing to do with the
customary rule as such. If that rule exists, it exists also for the State

which formulated the reservation, in the same way as it exists for those
States which have not ratified. The inadmissibility of the reservation is
not to be deduced from this, seeing that the reservation is intended to
operate solely in the contractual field, Le., in relation to the obligation,
arising out of the c:onvention, to recognize the rule in question. For
this same reason, no importance can be attached to the fact that those

States which do not ratify the convention, and which consequently
remain completely outside the contractual bond, have no possibility of
formulating a reservation.
Having clarified nly point of view so far as concerns the value to be
ascribed to the Geneva Convention as evidence of general international
law, 1 shall now consider matters from the point of view of the latter,
i.e., from the same point of view as that adopted in the Judgment of

the Court. I shall mention the Geneva Convention only in order to note
in Article 6 it is, in substance and within certain limits, in conformity
with the rules of genizralinternational law with regard to the delimitation
of the continental sbielf.

2. 1think it convenient to start from a point which is generally recog-
nized, and which is; not disputed by any of the Parties, namely the
existence of certain irights the subject-matter of which is the continental
shelf. It is not iiecesisary,for the purposes of the present cases, to deter-
mine the nature, the content and the limits of those rights, which Article 2reflétant, semble-t-il, le droit international coutumier, qualifie comme

(des droits souverains sur le plateau continental aux fins de l'exploration
de celui-ci et de l'exploitation de ses ressources naturelles ',.
Les droits dont il s'agit appartiennent aux différents Etats considérés
individuellement. Le plateau continental ne peut être conçu,de la même
façon que la haute mer, comme une chose commune à tous les Etats.

II faut, en premier lieu, écartertoute idéed'une communauté ayant pour
objet le plateau continental en général età laquelle participeraient tous
les Etats.
Mais l'idéed'une communauté doit être écartéeaussi par rapport à
une zone déterminéedu plateau continental, en tant que communauté

limitéeà certains Etats seulement, ceux qui se trouvent dans une relation
donnée avec la zone en question. Cela, bien entendu, sous réserve de
l'effet possible d'un accord par lequel deux ou plusieurs Etats décide-
raient de mettre en commun entre eux les zones du plateau continental
qui leur reviennent respectivement.

Abstraction faite de cette hypothèse, tout à fait concevable, il n'ya pas,
entre deux ou plusieurs Etats, de communautéayant pour objet une zone
déterminéedu plateau continental. Il peut y avoirsans doute une situation
qui entraîne un problème de délimitation, lequel consiste à établir de
quelle façon une certaine zone du plateau continental est déjà répartie

entre deux ou plusieurs Etats. Cette opération de délimitation n'a rien
à voir avec le partage, entre deux ou plusieurs Etats, d'une chose qui
serait commune à ces Etats.
Il faut nier en particulier que le plateau continental de la mer du Nord,
malgré son unité géologique, constitue ou ait constitué une chose com-

mune à tous les Etats riverains. 11est tout à fait évidentque l'affirmation
d'une communauté à cet égard mettrait en cause la légitimitédes délimi-
tations bilatérales sur la base de l'équidistance effectuéesnon seulement
entre le Danemark et les Pays-Bas, mais aussi entre le Royaume-Uni et

les Pays-Bas, entre le Royaume-Uni et le Danemark, entre le Royaume-
Uni et la Norvège, entre le Danemark et la Norvège. Il faut faire remar-
quer aussi, pour ce qui concerne ces deux dernières délimitations, que les
Parties ne se sont pas bornées à appliquer le critère de l'équidistance,
mais qu'elles ont fait quelque chose de plus. En appliquant le critère de
l'équidistance par rapport aux côtes des Etats contractants, sans tenir

compte de la donnée géologique de la 1fosse norvégienne 11par effet de
laquelle le plateau continental de la Norvège serait constitué, au point
de vue géologique, par une bande très étroite le long des côtes norvé-
giennes, on a fini en substance par opérer un transfert en faveur de la
Norvège de certaines zones du plateau continental. C'est seulement en

rejetant l'idéede la chose commune que, compte tenu de ladite donnée
géologique,ces zones pouvaient être considéréescommeappartenant aux
deux autres Etats contractants, au Royaume-Uni et au Daneiiiark respec-
tivement.
S'ilfaut exclure que le plateau continental de la mer du Nord constitueof the Geneva Convention (which Article reflects, it would seeni, custo-
mary interi-iational law) qualifies as "sovereigii rights [ovesthecontinental
shelf]for the purpo:je of exploring it and exploiting its riatural resources".
The rights in question belong to the various States considered indi-