INTERNA'rIONAI. COURT OF J
-
PLEADINGS,OR.ALARGUMENTS,
NORTH SEACONTINENTAL
SEIELIF CASES
(FEDERAL REPUBLICOF GERMANYIDENMARK;
FEDERAL REPUIOFGERMANYWTHERLANDS)
COUR INTERNA'lïC)NALEDE JUSïïCE
MÉMOIRES, I'LAIDOIIETDOCUMENTS
.-
AFFAIRESDU PLATEAU
CONTINENTALDE LAMER
DU NORD
(RÉPUBLIQUEFE~ÉRALE:D'ALLEMAGNEIDA;EMARK
RÉPUBLIQUFÉDÉRALI)'ALLEMAGNE/PAYS-BAS) The present volume contains the ora.1arguments, the documents submitted
to the Court afterthe cfosure of the ~vrittenproceedings and the correspondence
relating to the North Sea ContinentalShelf cases. The proceedings in these
cases, which were entered on the C:ourtYsGeneral List on 20 February 1967
under numbers 51 and 52, werejoined by an Order of the Court of 26 ApriI
1968(North Sea Contirtenta!SheEf, Ordcbr of 26 ApriI1968,Z.C.J.Reports 1968,
p. 3),and a Judgment was delivered on 20February 1969(NorthSea Continental
Shelf, Judgment, I.C.J.Reports 1969, p. 3).
The page references originally appearing in the pleadings and speeches have
been altered to correspond with the pagination of the present edition.
The Hague, 1969.
Le présent volume contient les plaidoiries, les documents présentés la
Cour après la fin de la procédureécri.teet lacorrespondance relatifs aux affaires
du Plateou coiztinentalde lamer du Nord. Ces affaires ont étéinscriteau rôle
généralde IaCour sous les nos51 el 52 le 20 février1967et les deux instances
ont étéjointes par ordonnance de la Cour le 26 avril 1968(Plateau continental
de lamer duNord, ordonna.vce du 26 owiI1968, C.Z.J.Recueil1968, p. 3). Un
arrêta été rendule 20 février1969 (Plateau continentalde la mer du Nord,
arrêt,C.I.J. Recueil 1969, p. 3).
Les renvois d'un mémoirr:ou d'une plaidoirie hl'autre ont étémodifiéspour
tenir compte de la pagination de la présente édition.
La Haye, 1969. CONTENTS . TABLE DES MAT&RES
PAR'Ç II . ORAL ARGUMENTS
DEUXTEM PAERTIE .PLAIDOIRIES
Opening of the oral proceedings
Argument of Professor Jaenicke ..................
General remarks........................
Fourth subrnission of thi: Federal Rcpublic of Germany-not equiva-
Equidistance only appliciiblifit provides equitable res......
Equidistancea method and not aprinciple of Iaw.........
Federal Republc of Ge~manynot obliged to accept the equidistance
lineasbounday .......................
Equidistance as alleged principle of customary law:
relevance of reservati0.nto Article 6 of the Geneva Convent...
Relevance of State practice since 195..............
Conduct of the Federal Republic of Gerrnany at the Geneva Con-
ference and since 1958.....................
Diversion effec oftthe ecluidistancel..............
Does equidistance method produce an equitable apportionment in
these cases?.........................
Equidistance method noi:equitable per se.............
Principle of the just and equitabI1:shar.............
Gecontinentalshelf: the coastal front and sector metho......orth Sea
Coastal front: definition....................
Denmark and Netherlands the orily States bound to reduce the shares
claimed by them .......................
The existence of "specinl circurnstances": Article 6 of the Geneva
Convention .........................
The combined effect of the two lsoundaries as a special circumstance
Iftiations on guidelines providebyethe Courtwi.......... re-open nego-
Argument of Professor Oda
Customary international law up lo 1958 .............
Principle of just and equitableshare as one of "the general principles
of law recognized by civilized ~iatio.............
The cmstal façade as sfartingpoint ...............
Questions by Judges Sir Gi:raId Fitmurice and Jessup .......
Statement by Professor Jaenicke..................
Statement by Mr .Jacobsen ....................
Statement by Professor Riphagen .................X NORTH SEA CONTINENTAL SHELF
Argument of Sir Humphrey Waldock
Contentions of the Parties: the "equidistance-special circurnstances"
rule ............................
Enunciation of three grounds of Danish and Netherlandscase. . . .
Special Agreements . . . . . . . . . . . . . . . . . . . . . .
Legal attitudes adopted by the Parties prior to the proceedings.. . .
First contention: rights of States over the continental shelf adjacent
to their coasts: the Geneva Convention and the proximity criterion
Second contention: principles and niles embodied in Article 6 of the
Geneva Convention an expression of generally accepted law erga
Third contention: principles and mles embodied in Article 6 of the . .
Geneva Convention have the character of generaI customary law
Reservations under Article 12 of the Geneva Convention. . . . ..
State practice: repfy to Professor Oda . . . . . . . . . . . . . .
Interpretation of "special circumstances"l. . .e . . .. . . . . .. .. .
Argument of Professor Riphagen
Theoretical possibilities for regulation of rights of States over any
given area . . . . . . . . . . . . . . . . . . . . . . . .
Actual developrnent of international law . . . . . . . . . . . . .
Criticism of the Federal Republic's concepts of the '7ust and equitable
The concepts of contiguity and equidistance the true basis of the rights
of States over the continental shelf adjacent to their coast. . . .
Argument of Mr. Jacobsen
"Special circumstances": approach by the Pederal Republic of Ger-
many ...........................
"Special circumstances": general interpretation and application. . .
The "cornbined effect" asan alleged specialcircumstance; the "coastal
front" approach. . . . . . . . . . . . . . . . . . . . . . .
Request by the Court and questions by Judge Sir Gerald Fitzmaurice. .
Reply of Professor Jaenicke
Reply to Judge Jessup's first question . . . . . . . . . . . . . .
Limits of the Court's jurisdiction under the Special Agreements . . .
Retance-delimitation validergaiornnes i. e. . . .e . . . . . . . . .s-
Equidistancenot a rule of customaryinternational law . . . . . . .
Boundaries as claimed by Denmark and Netherlands not equitable:
principle of just and equitableshare . . . . . . . . . . . . . .
Crgeographical considerationsi.nm.n. . . . . . . . . . . . . . . .f:
Reply to Judge Jessup's second question . . . . . . . . . . . . .
The coastalfront concept. . . . . . . . . . . . . . . . . . . .
Reply of Professor Oda
Reply to Sir Gerald Fitzmaurice's question . . . . . . . . . . . .
Boundary determinationaccording to the-façade" approach: difference
Reply torSirHumphreynickWaldeck'sacarguments.. .. . . . . . . . . .. .Reply of Professor Jaenick-e
Interpretation and application of "special circumstances" clause in
these cases . . . . . . . . . . . . . . . . . . . . . . . . .
Principle of equitable apportionment the legal basis of the "equidiç-
Final Submissions of thr:Federal Rcpublic of Germany. . . . . . .. .
Request by Judge Mosler . . .... . . . . . . . . . . . . . . .
Rejoinder of Professor Rilihagen
Inconsistency of arguments of Federal Republic of Gerrnany . .. .
Rejoinder of Mr. Jacobsen
Development of the Federal Republic's argument as to proper rnethod
of delimitation . . . . . . . . . . . . . . . . . . . . . . .
Summary of various bolindaries proposed. . . . . . . . . . . . .
Thcircumstance" G. . . , .c,as.l. . . . . .of. . . .t". . . . . .ia.
Statement by Professor Oda. . . . , . . . . . . . . . . . . . . .
Rejoinder of Sir Humphrey Waldcmck
Answer to Judge Sir Gerald Fitzmaurice's fist question: customary
international Iaw . . .. , . , . . . . . . . . . . . . . . .
Answer to Judge Sir Gerald Fitzmaurice's second question: meaning
Answer to Judge Sir Geiald Fitzi.mirrice'sthird question: technique of
median lines and equidistance Iines and results thereo. . . . . .
Appeal to equity by Federal Regiubiicof Germany. . . . . . . . .
Questions by Judges Jessup and Pc:tréil. .. . . . . . . . . . . . .
Rejoinder of Sir Humphrey Waldack
Answer to Judge Jessup's question. . . . . . . . . . . . . . . .
The "special circumstances" cIai~se:position of the FederaI Republic
Effect of two cases being tefore the Court together.. . . . . . . .
Unprecedented nature of Federal Republic's case . . . . . . . . .
Correct interpretation of "equidistance-special circumstances" rule.
Final Submissions of Dcnrnark . . . . . . . . . . . . . . . . .
Statement by Professor Riphagen
Final Subrnissions of the Netherlands .. . . . . . .. . . . . . . ..
Closing of oral proceedings. . . . . . . . . . . . . . . . . . . .
Reading of the Judgrnent . . . . . . . . . . . . . . . . . . . . .
PART III. DOCUMEI\TTS SUBMITTED TO THE COURT AFTER
THE CLOSURE OF TI= WRZMEN PROCEEDINGS
TROISIÈME PARTE:. DOCIJMENTS PRESENTÉS A LA COUR
APRÈS LA l'IN DE LA PROCÉDURE ÉCWE
SECTION A. DOCUMENTS IFILED BY THE PARTIES ON THEIR
OWN INITIATIVE
SECTION A. D0CUMI:NTS DI:POSÉS PAR LES PARTIES SUR LEUR
PROPIE INITIATIVE
1.and the Netherlandsth. . . . . .r ,h. G.v. . . . . . D,n. . . . . 291XlI NORTH SEA CONTINENTAL SHELF
Note from the Danish Embassy at Canberra to the Australian
Department of External Affairs, dated 1 July 1.......
Note from the Australian Department of External Anairs to the
RoyalDanish Embassy in Australia,dated 3September 1968. ..
Extract frorn the AustraIian House of Representatives Hansard,
18 October 1967,page 1946 .................
Bxtract from the Australian House of Representatives Hansard,
26 October 1967, page 2379. ................
II.Document fiied by the Agent for the Government of the Federal
Republic of Germany ....................
Complications of a border dispute by S. E. Werners, The Hague
(from the Ne~herlandsJuristenblad,1968,No.9,pp. 224 and 225,
2 March 1968). ......................
SECTION B. DOCUMENTS HLED BY THE PARTIES AT THE
REQUEST OF TEE COURT
SECTION B. DOCUMENTS DÉPOSB PAR LES PARTLES A LA
DEMANDE DE LA COUR
1. Documents filed by the Agent for the Government of Denmark. .
1. Excerptsfrom a confidential report of 27 October 1964on the
Danish-German negotiations in Bonn on 15-16October 1964 . .
2. Excerpts from a confidential note of 17 February 1965to the
DanishForeign Minister, on the stand of the negotiationswiththe
Federal Republic of Germany. ...............
3. Excerpts from a confidential report of 31 March 1965on the
Danish-German negotiations in Copenhagen on 17-18 March
1965...........................
4. Excerpts from a report of 21 March 1966on the Trilateral D.nish-
5. Excerpt from a report dated 11September 1964from the Danish
Embassy inBonn to theDanish Ministry of Foreign Affairs..
6. Excerpts from a summary, dated 11February 1965,of a meeting
heldin the Danish Ministry of Foreign Affai11oJanuary 1965
7. Excerpts from minutes dated 26 March 1965from ameeting held
in theDanish Ministry of Foreign Affaons22 March 1965 ...
8. Text of a report dated 16June 1965from the Danish Embassy in
Bonn to the Danish Ministry of Foreign Affairs.......
II.Documents filed by the Agent for the Government of the Nether-
lands, ...........................
Amex A: Verslag van de Nederlands-Duitse besprekingen inzake
afbakeningvan het continentaal plateau, gehouden in Bonn op 3en
4maart 1964 .......................
Annex B: Report on the Netherlands-Geman discussionsregarding
the demarcation of the continental shelf, held in Bo3nand 4
Annex Ch:Verslagvan de vervolgbesprekingen tussen de Nederlandse
en Duitse delegatiesbetreffende deafbakeningvanhet continentaal
plateau in de Noordzee, gehouden te '+Gravenhage op 23 maart
1964 ..........................
Annex D: Report on the continued discussions between the Nether-
landsandGermandelegationson thedemarcation of thecontinental
shelfinthe North Sea,held at The Hague on 23March1964 ... CONTENTS
Annex E: Verslag van de besprekingen in Bonn op donderdag 4juni
1964tussen delegatii:~van Nederland en deBondsrepubliek ter af-
bakening van het Nederlandse en Duitse deelvan het conthentaal
plat in de Noordzee: . . . . . . . . . . . . . . . . . . .
Annex F: Report on the disciissions between the Netherlands and
parts of the continental shelf in the North Sea, held in Bonn on
Thursday, 4 June 1964 . ... . . . . . . . . . . . . . . .
Annex G: Gerneinsamer Bericht . . . . . . . . . . . . . . . .
Annex H : Joint report of the Netherlands-German working group .
Annex J: Verslagvan te Den Haaggehouden besprekingen op 14 juli
bakening van het Nederlandse en Duitse deelvan het continentaal
plat in de Noordzee: . . . ... . . . . . . . . . . . . . . .
Annex K: Report on ihe discussions heId in The Hague on 14July
1964between the delegationi; ofthe NetherIands and the FederaI
Republic on the deinarcation of the NetberIands and the German
parts ofthe continentalshelf intheNorth Sea . . . . . . . ..
III D.ocuments filed by the Agent for the Government of the Federal
Republic of Germany . . . . . . . . . . . . . . . . . . . .
1. Note verbalefrorn the Nettierlands Embassy in Bonn to the Fed-
theMemorial, O1,pp.,96-97; Annex 8 ta rheNetherlandsCounter-
Memorial, 1,p. 3781
2. Note verbale from the Ger.ma11 Federal Foreign Office,dated26
August 1963[See .4nnexes9and9A to the Netherlands Counter-
Mernorial, 1,pp.3?9-3811
3. January 1964 fr.m. . . . . . . . . .ass. . . . . . . . . . .
4. Note verbale from the Geiman Federal Foreign Office,dated 4
Febniary 1964. . . . . . . . . . . . . . . . . . . . +
5. Notes of 19February 1964 . . . . . . . . . . . . . . . .
6. Summarized minuxes,dateii 16 March 1964, of the Netherlands-
German negotiations on thr delimitation of the continental shelf
7. Minutes of conclu!;ionsof the 'Netherlands-Gerrnannegotiations
on the continental ijhelfheliiin The Hague on 23March 1964 . .
8. Notes of 6 April 1964 ... . . . . . . . . . . . . . . . .
9. Minutes,dated 4Jrtne1964,oftheconcIusions of theNetherlands-
Gerrnan negotiations held in Isonn on 4 June 1964 . . . . . .
10. June 1964 [See Annex H 01"the Netheriands docurnentufion,4
pp. 334-336, infra]
11. Notes of 8 July 1964 ... . . . . . . . . . . . . . . . . .
12. Joint minutesof German-Netherlands delegations,dated4 August
1964 [See Annexe:;4 and4A to the Memorial,1,pp. 102-1041
13. Excerpt of 10August 1964of the paper prepared by the Pederal
14. Joint press communiquéof 1 December 1964net . .. ... . . . .
15. Memorandum regiirding the Netherlands-Germany treaty of 1
December 1964 ccinceminj: the lateral delimitation of the con-
tinental shelf of the North Sea near the Coas. . . . . . . .
16. Notes of 6 October 1964 . . . + . . . . . . . . + . . . .XIV NORTH SEA CONTINENTALSHELF
17. Joint press communiquéof 16October 1964. ........ 354
18. Minutes of the conclusionsof the negotiations on the delimita-
tion of the continental shelf in the North Sea between Germany
and Denmark, held inBonn on 15-16October 1964 ...... 355
19. Report by the Plenipotentiary of Land Schleswig-Holstein,inhis
capacity as member of the German defegation, to his Land (pro-
vincial)government, dated 31March 1965 .......... 357
20. Joint press communiqué of 18 March 1965 [See Annexes 8 and
8A tothe Mernorial,1, ppII4-1151
21. Notes of 1April 1965 .................. 359
22. Rotocol to the Danish-German treaty concerning the delimita-
tion ofthe continental shelfof theNoSeanear thecoast, dated
9 June 1965[See Annexes 7and 7A ru theMernorial,1,pp. 112-
1137
23. ~ekorandum regarding the Danish-German treaty of 9 June
1965concerning the delimitatioof the continental shelf of the
North Sea near the Coast................. 360
24. Aide-mémoireof 8Decernber 1965 addressed to the DanisEm-
bassy, Bonn. ...................... 361
25. Notes of 8 March 1966 .................. 362
PART IV. CORRESPONDENCE
QUATRIÈME PARTE. CORRESPONDANCE PART II
OR.AL ARGUMENTS
PUBLIC HEARINGS
helda,rhePeocePalace, TheHague,
from 23 Octoberto II November1968 andon
20 February1969, thePresident,
M. l:ustamanty Rivero,presiding
DEUX:I&MEPARTIE
AIJDIENCES PUBLIQUES
tenuesaupalaïdc aPaix, La Haye,
du 23 octobrartII novembre1968 er le
2Ofëvrier 1969, slaprésidencede
M. fiustamantyRivero, Président MINUTES 01; THE HEARINGS
HELD FROM 23 OCTCjBERTO 8 NOVEMBER 1968
YEAR 1968
FIRST PUIlLIC HIZARING (23 X 68, 10a.m.)
Present: PresidenfBUSTAMAN TERIVEROV ;ice-PresideKORETSKY ;udges
Sir GeraId FITZMAURIC TA,NAKAJ, SSIJ, ORELLSI,ir Muhammad ZAFRULLA
KHAN,PADILLA NERVO ,ORSTER ,ROS , MMOUN , ENGZON PE, TREN,ACHS,
ONYEAMA; Judgesad hoc P~~OSLES~,ENSEN;Registrar AQUARONE.
Also preseni:
For the FederulRepublic oj'German,y:
Professor G. Jaenicke, F'rofeofInternational Law in the University of
Frankfurt am Main, as Agcnt;
Professor S. Oda, Profes!;orof InternationalLaw in the University ofSendai,
as Counsel;
ProfessorU.Scheuner, Professor of International Law in the University of
Bonn,
ProfessorE. Menzel,ProfessofInternational Law in the Universityof Kiel,
Dr. Henry Herrmann, ctf the Niassachusetts Bar associated with Messrs.
Goodwin, Procter & Hoar, Cou~isellors at Law, Boston,
Dr. H, Blomeyer-Barteristein, C:ourisellor 1st class, Ministry of Foreign
Affairs,
Dr. H. D. Treviranus, Ci~unselloi,Ministry of Foreign Affairs, as Advisers;
Mr. K. Witt, Ministry of'Foreign Affairs, as Expert.
For the Govevnmentof the jYingdofDenmark:
Mr. Bent Jacobsen, Barrister at the Suprerne Court of Denmark, as Agent
and Advocate;
Sir Humphrey Waldock, C.M.G., O.B.E.,Q.C.,Professor of International
Law in the University of Oxford, a.;CounseAdvocate;
H.E. Mr. S. Sandager Jeppesen, Ambassador, Ministry of Foreign Affairs,
Mr. E. Krog-Meyer, Head of th#Legal Department, Ministry of Foreign
Affairs,
Dr. 1. Foighel, Professor in the University of Copenhagen,
Mr. E. Lauterpacht, Member of the EnglBar and Lecturer in the Uni-
versity of Cambridge,
Mr. M. Thamsborg, Head of ~e~artment, Hydrographie Institute, as
Advisers;
Mr. P. Boeg, Head of Secretariat, Ministry of Foreign Affairs,
Mr. U. Engel, Head of Section, Pdinistryof Foreign Affairs, as Secrezaries.
For the Governmentothe Kingdomof the Netherlunds:
Professor W. Riphagen, Legal Adviser to the Ministry of Foreign Affairs,
Professorof International Lawat the Rotterdam SchoolofEconomics,asAgent;4 NORTH SEA CONTINENTALSHELF
Sir Humphrey Waldock,C.M.G., O.B.E., Q.C., Professorof International
Law in the UniversitofOxford,as Counsel;
Rear-Admiral W. Langeraar, Chief of the Hydrographic Department,
Royal NetherlandsNavy,
Mr. G. W. Maas Geesteranus,Assistant Legal Adviser to the Ministrjof
Foreign Affairs,
MissF. Y. vanderWal,Assistant Legal Adviserto the Ministry of Foreign
Affairs,asAdvisers.
Mr. H. Rombach, Divisional Head, Hydrographic Department, Royal
NetherlandsNavy, as Deputy-Adviser. OPENIN(;OF THE ORIL PROCEEDINGS
OPENING OF THE ORAL PROCEEDINGS
LePRÉSIDENT :11m3ini:ombetoutd'abord de rendrehommage a la mémoire
d'un ancien Présidentde la.Cour dlfcétpendant l'année: Jules Basdevant est
mort le 5janvier 1968.Sa biographie est étroitementliéàl'histoire de la Cour
permanente de Justice internationale et de la Cour internationale de Justice.'
II contribua efficacementà l'élaborationdu Statut de la présenteCour, il en
fut élu membreen 1946,il la présidade 1949 A 1952 et il continua de prendre
une part importante à ses travaux jusqu'a sa retraite en 1964.II y apportait
une longue expérience acquisedans l'enseignement du droit a Rennes, a
Grenoble, à Paris, iiLa Haye, h Cr;lcovie, et en tant que jurisconsulte du
ministèredes Affaires étrangèresde son pays. Par son savoir juridique, par la
profondeur de sa pensée,par son honnêteté comme juge, il était etiI restera
une éminentefigure du droit intern,ltional.
La Cour se réunit aujourd'hui pour connaître des affaires du Plateaucon-
tinental de la mer du Nord entre le Iianemark et la Républiquefédérale d'Alle-
magne d'unepartet lesPays-Bas et].aRépubliquefédérale d'Allemagnd e'autre
part.
Ces instances ont étéintroduites devant la Cour le 20 février1967, datà
laquelle le ministère des Affaires étrangères desPays-Bas a, comme les Etats
intéressés enétaient convenus, déposi?auprés de la Cour deux compromis
signésA Bonn le 2 février1'367et entrésen vigueur le mêmejour, l'un soumet-
tant àla Cour un différendentre le Danemark et la RépubliquefédéraIdiAlle-
magne et l'autre un différendentre les Pays-Bas et la République fédérale
d'Allemagne.
Le 8 mars 1967, tenant compte d'un accord intervenu entre les Parties et
indiqué dansles compromis, le jugi: faisant fonction de Présidentde la Cour
en vertu de l'article 12du Réglernenta fixéau 21 août 1967la date d'expiration
du délai pour le dépôt du mémoirede la République fédérale d'Allemagne
dans chacune des deux affaires et au 20 février1968 la date d'expiration du
délaipour le depôt des contre-mémoiresdu Danemark et des Pays-Bas dans
lesaffaires auxquellescespays sont respectivementParties. Mémoireset contre-
mémoiresont étédéposésdans Ies délais prescrits.Le le' mars 1968, après
s'être renseignéuprèsdes Parties, lt:Présidentde la Cour a fixéau 31mai 1968
la date d'expiration du délaipour le dépôt des répliquesde la République
fédérale d'Allemagndeans chacune des affaires,et au 30 août 1968la date d'ex-
piration du délaipour le dépôtdes dupliques du Danemark et des Pays-Bas.
Les répliquesont étédéposées dans le délaiainsi fixé.
La Cour ne comptant pa.ssur le siègede juge de la nationalité desParties,
l'agent de la Républiquefédérald'Allemagnea fait savoir par lettre du 10août
1967 que, conformément à l'article :31,paragraphe 3, du Statut, son gouveme-
ment avait designéM. Hermann Moslçr comme juge ad hoc pour siégerdans
les deux affaires. Le Pr6sidi:nt de la Coufixéau 13 septembre 1967 la date
d'expiration du délai dans Iequel les Gouvernements danois et néerlandais
pourraient soumettre Ieurs vueà la Cour sur cette désignation.Le Gouverne-
ment danois a fait connaitri: son accord dans le délaiainsi fixéet le Gouverne-
ment néerlandaisn'a pas soulevéd'objection. Par lettres datéesrespectivement
des 9 et12février1968,les .agentsdes Pays-Baset du Danemark ont fait savoir
que leurs gouvernements avaient de.leur côté désignM, Max Snrensen pour
siégercomme juge ad hoc dans les deux affaires. Le Présidentde la Couafixé6 NORTH SEA CONTINENTALSHELF
au 11mars 1968la date d'expiration du délaidans lequel le Gouvernement de
la République fédéralepourrait soumettre ses vueàla Cour sur cette désigna-
tion. Ce gouvernement a fait connaître son accord dans le delai prescrit.
LR 26 avril 1968la Cour a rendu une ordonnance par laquelle elaconstaté
que les Gouvernements danois et néerlandais faisaient cause communeajoint
les instances dans les deux affaires et, modifiant les prescriptions des deux
ordonnances du le'mars 1968relativesau dépôtdesdupliques, a fixau 30aoGt
1968 ledélaidans lequel les deux gouvernements devaient déposerune duplique
commune. La duplique commune du Danemark et des Pays-Bas ayant été
déposéedans le délaiainsi prescrit, les affaires sont maintenaétat.
La Cour adécide avecl'assentiment des Parties, conformémenà l'article 44,
paragraphe 3, de son Règlement, que les piècesde procédure seraient miseà
la disposition du public dèsl'ouverture de la procédure orale.
J'invite M. Mosler à prononcerladéclarationprévue à l'artic20 du Statut
de la Cour.
M. MOSLER: Je déclaresolennellement que j'exercerai tous mes devoirs et
attributions de juge en tout honneur et dévouement,en pleine et parfaite im-
partialitéet en toute conscience.
Le PRESIDENT: J'invite M. Snrensen à prononcer la mêmedéclaration.
M. S0RENSEN :Je déclaresoIennelIement que j'exercerai tous mes devoirs
et attributions de juge en tout honneur et dévouement,en pleine et parfaite
impartialitéet en toute conscience.
Le PRESIDEN TJeprendsactedesdklarations quiviennentd'êtrprononcées
par MM. Mosler et Smensen et les déclareinstalIésen leurs fonctions dejuges
ad hoc dans les présentesaffaires.
Je constate la présencàl'audience des agents des Parties et de leurs conseils
et je déclarela procédureorale ouverte. ARGUMENT OF PROFESSOR JAENICKE
ARGUMEPJTOF I'ROFESSOR JAENLCKE
AGENTFOR THE GOVERNMENTOF THE FEDERALREPUBLIC OF GERhfANY
Professor JAENICKE: hdr. President and Judges of the Court, before com-
mencing the oral arguments I would first like to say how much 1 appreciate
the great privilege of appearing before the International Court of Justice and
of presenting to you the case of the IFederalRepublic of Germany in the North
Sea Continental Shelf cases.This is the first time that the Federal Republic of
Germany isa party before thisCourt. Even though the generalpolitical situation
has up till now prevented the Federal Itepublic of Germany from becoming a
Member of the United Nations or a party to the Statute of the Court, the Fed-
erd Republic of Germany has the greatest esteem for the role of the Inter-
national Court of Justice as the principal judicial organ of the United Nations,
as the most competent institution to soIve legaI differences between States.
It was in regard of this high authority whichthis Court enjoyswith law-abiding
nations of the world that the Fedc:ral Republic of Germany, as welI as the
Kingdom of Denmark anrl the Kingdom of the Netherlands, considered it
most appropriate to entrust this Cwurt with the settlementof the legal dispute
which is now before you.
It is indeed regrettable that the nations of the world are so hesitant to make
use of the International Court of liustice for the friendly settlement of their
disputes. As a rnernber of'the International Law Association 1 have been
participating, together with my learncd colleague Professor Scheuner who
happens to sit here by rnyside, in tlie work of the International Law Associa-
tion's United Nations Charter Cixn~nittee, where we had most urgently
advocated that States shouIr1make rriorefrequent useof the officesof this Court.
It is in a way a deep satisfaction to me that my Government has lived up to
those ideals and has charged me with practising what we have conceived
theoretically.
This case has been subm:ittedto you by special agreement or conrpromisof
the Parties concerned. This procedure. adopted by the Parties shows quite
clearly that they had been inspired by the genuine desire to settle their differ-
ences in an amicable rnanncr in accordance with the general obligation of al1
States to resolve their differencesnoby political, economic or other forms of
pressure but by recourse to the mosr appropriate methods of the settlement of
international disputes, nami:ly by reiiortingto the judicial process. In this con-
nection 1 should emphasizs that the proceedings between the Parties before
this Court will not in the slightest urayimpair the friendly relations prevailing
between the Parties. 30th sides,as 1 believe, are coming before you as friends
who have differences, as rnay well Ilappen hetween friends too, and who are
seeking an impartial judgmi:nt on their differing viewpoints.
Ttis inherent in the judicial proct:ss and indeed most useful for the finding
of the judgment that the Parties scrutinire the arguments of the other side most
searchingly and try to reveal eventual fallacies of such arguments. Such is in-
herent in the contradictory judicial piocess. It does not affect the friendly
spirit prevailing between tbe Partie:$and those who argue the cases of their
Governments before you. 1am sure that after you have passed your judgment,
which will beloyally observcd by us, the dispute willnot leaveany bitter feeling
between the Parties.8 NORTH SEA CONTINENTAL SHELF
The substance of the case whichthe Parties have submitted for yourjudgment
has aroused wide interest. The principles and rules which govern the delimita-
tion of the continental shelf between States which are adjacent to the same
continental shelf, are still uncertain. They have up to now not yet been the
object of international judicial settlern.Your judgment in this case, although
in strict law it concerns only a special boundary question in the North Sea and
will have the force ofres judicataonly as between the Parties to the case, will
nevertheless by its authority exert a great influence on the settIement of many
still unsolved boundary problerns al1over the world.
The progress of technology and the results of more intensive exploration
willmakeexploitation of the seabed and subsoilbefore the coast more and more
attractive to al1 nations. Exploitation may proceed to much greater depths
than hitherto. This development will make States realize that the delirnitation
of their continental shelf is no more a question of sorne square miles within a
short distance frorn their coast, but a question of what share they may expect
if some day extensive maritime areas before their coast will be distributed.
Thus the principles and rules declared applicable in this case may some day
later decide about the distribution of vast maritime areas in the world. Thus
your judgment will certainly influence the application as weIl as the further
development of the law of the sea.
If 1am now going to present the case of the Federal Republic of Germany,
1trust that you willnot expect me to reiterate al1the facts and al1the arguments
which wehave already advanced in support ofOurcase in the written pleadings.
For 1would certainly not wish to impose upon you with arguments which you
have already read in the Memorial and in the Reply of the Federal Republic of
Germany. 1 believe1would do better to concentrate on basic questions which
have to be faced in the case subrnitted to yourjudgment, and to reply, if neces-
sary, to somenewarguments whichhave been brought forward by the Kingdom
of Denmark and the Kingdom of the Netherlands in their Common Rejoinder.
1should however just make itclear that al1arguments which have beenbrought
forward in our written pleadings are fully maintained. If they do not appear
any more in the present pleading it should not be inferred therefrom that they
had been dropped. 1 have some special reason to stress the point because in
some passages of the Common Rejoinder it is intimated that because we had
not elaborated any more a point we had made in Our Memorial it is supposed
to have been dropped. This was not Ourintention, and if wewould like to drop
some point we would say so explicitly. Therefore al1Ourarguments and obser-
vations contained in our written pleadings remain submitted to your judgment.
By the Special Agreement both Parties request the Court to declare what
principles and rules of international law are applicable to the delimitation as
between the Parties of the areas of continental shelf in the North Sea which
appertain to each of them beyond the partial boundary they have already
agreed upon. Although this question submitted to the Court is couched in
rather general terms, there can be no doubt that the fundamental issuebetween
the Parties is the question whether or not the equidistance line should con-
stitute the boundary line between their respective continental sheIves.
If1 am going to refer to the equidistance method in my address, 1understand
itas the specificmethod for drawinga maritime boundary line as defined in
Article 6 of the Continental Shelf Convention, that is to say, a method for
drawing the boundary Iine in such a way that every point of the boundary is
equidistant from the nearest point of each of the coasts of both States or, more
precisely, equidistant from the nearest point of the baselines from which the
breadth of the territorial seof each State is measured. ARGUMENT OP PROFESSOR JAENICKE 9
On the question whether or not the equidistance line, as 1have just defined
it, should constitute the boimdary line between the Parties, therhas been dis-
agreement between the Parties frorn the beginning of their negotiations. The
Kingdom of Denrnark and the Kingdom of the Netherlands insisted that only
the equidistance line could be the kiasison which the boundary line might be
fixed by agreement. The Federal Goverament on the other hand took the posi-
tion that the geographical situation in 1:hatpart of the North Sea required an-
other boundary line, a boundary line that would be more fair to both sides.
The submissions of the Pa.rties in their written pleadings before this Court
reflectthis conRictof views-whichwas already apparent in the previous negotia-
tions. The submissions of the Kingtlom of Denrnark and the Kingdom of the
Netherlands ask the Court to declare that the continentd shelf boundaries
between the Parties should be determined by application of the principle
of equidistance. The submissions of the Federal Republic of Germany, on
the other hand, ask the Court to dixlare that the principle of equidistance is
not applicable and that therefore the Parties have to agree on another boun-
dary line, one which would apportion a just and equitable share toeach of the
Parties.
In their Common Rejoin.der, the Kingdom of Denmark and the Kingdom
ofthe NetherIands criticizethe submissionsofthe Federal Republic d Germany,
in particular Submission No. 4 brouglzt in our RepIy which States that the
delimitation of the continental shelf'in the North Sea between the Parties is a
matter which has to be settled by agreement. Our opponents Saythat this sub-
mission is equivalent to inviting th12Court to pronounce a non-liqrretand to
remand the case back to the:Parties for another round of negotiations, without
suficient legal criteria by vrhich to deterrnine the boundary. 1 think that this
criticism is not justified; it puts the legal issue before this Court anwrong
perspective, and, what is even more regrettable, it takes a rather narrow view
of the roleand function of this Court in the present case.Let me try to explain
this in a few words.
First: If the Court would foliow our submissions, the Court would make a
legaldecision as to what rulm or pri~icipIesshouId guide the Parties in reaching
an agreement on the bouildary li~ie between their continental shelves. By
declaring that the equidistance line should not apply between the Parties, the
Court would remove the main obstacle that had hitherto prevented the Parties
from agreeing on a boundary line, aiûdthis would open the way for the Parties
to seek an agreement on a 1~oundar:rline that would be regarded as equitable
by both sides.I fail to seehow such a ruling by the Court could becharacterized
as a non liquet.
Second point: If the Court isrequested to instruct the Parties as to what rules
or principles are applicable with respect to the delimitation of the continental
shelf between the Parties, this constitutes a request for a positive as well as for
a negative rulingas to the applicability of the rules and principles suggestedby
the Parties. If the Court would look with favour upon Our submissions and
declare that delimitation of the con~tinentaIshelf between the Parties should
not be accomplished by a ilnilaterat application of the so-called principle of
equidistancebut ratherbyanagreementwhichwouid alloteachParty an equitable
share, I then again fail see how suc:ha ruling of the Court could becharacter-
ized as a non liquet.A rule:which (obligesthe Parties to seek an agreement,
taking into account the specialitiecf the situation, is as much a rule as a rule
which binds the Parties on a certain rnethod of delimitation. If the Court would
adjudicate that there is a rule which obliges the Parties to seean agreement,
taking into account the uniqueness of the facts in this particular situation, then10 NORïH SEA CONTINENTAL SHELF
such a rule has the same stature in international law as would have a rule
binding the Parties to a particular method of delimitation.
Third point :The Kingdom of Denmark and the Kingdom of the Netherlands
seem to take the position that the principles and rules for delimitation of the
continental shelf,which the Court might declareapplicable betweenthe Parties,
rnust necessarilybe of sucha character as to allow the drawing of the boundary
line automatically, without further agreement between the Parties. However,
according to State practice as well as according to ArticIe 6 of the Continental
Shelf Convention, if it were applicable between the Parties, agreement between
the Parties isthe primary rule if two or more States are adjacent to the same
continental shelf. If under Article 6 of the Continental ShelfConvention special
circumstances exclude the equidistance line as inequitable, then the more
preferabie boundary line necessarilyhas to be determined by agreement. There-
fore 1again fail to see how a ruling by the Court that the boundary should not
be determined by unilatecal application of the equidistance line, but rather
should be settled by agreement between the Parties, could be characierized as
a nonliquet.
Fourth point: We would greatly underestimate the rule of this Court in
the present dispute if we would suggest that the only choice available to the
Court iseither to provide the Parties with a geometrical rule as to how to draw
the boundary line or, in the alternative, to pronounce a nonliquet. The Speciai
Agreement or Compromis between the Parties should not be construed so
narrowly. What is sought £romthe Court is guidance for the Parties as to what
rules and principles should be taken into account for an agreement on the
boundary line. Such guidance might be based on the principle of equidistance,
if and in so far as the Court would consider it to be equitable. However, the
Court might niIe applicable other principles which cannot be projected auto-
matically into a cartographie boundary line, and which therefore necessitate
further negotiations and agreements between the Parties.
1respectfully submit that it is well within the cornpetence of the Court to
refer the matter back to the Parties for further negotiations, with guidelinesas
to the principles an agreement should be based on. Ifthe Court would look
with favour upon Oursubmission, such a determination would alreadv facilitate
substantially the negotiations between the Parties and by ruling the principle
ofequidistance inauplicabIeit would instruct the Parties to base their agreement
on the principle of ;he just and equitable share instead. The Court might go
further and provide the Parties with additional criteria which in the Court's
view determine the equitableness of the share each Party may rightfully claim.
We have indicated what in our view would be such criteria, and I shall refer
again to these criteria later in my address.
I would like to recall that the Permanent Court of International Justice has
been faced with a similar question in the Free Zones case, where the parties
werein disagreement on abasic legalissuewhich preventedfruitful negotiations
of an agreement. There the Court was asked whether it was within its compe-
tence to provide the parties with guidance as to this particular legal point for
the resumption of negotiations. In its Order of 19 August 1929, which is pub-
lished as No. 22 of its publications in the Series A, the Court saat page 13:
"Whereas the settIement of international disputes, with a view to which
the Court has been established, is simply an alternative to the direct and 1
friendly settlement of international disputes between the Parties, con- i
sequently it is for the Court to facilitate so far as is compatible with the
Statute such direct and friendly settlement." ARGUMENT OF PROFESSOR JAENICKE 11
1 respectfully submit that it is within the competence of this Court to decide
any legal issue which has proven i:o be an obstacle to fruitful negotiations
between the Parties.
This concludes my comments on )theassertion that our submission might be
regarded as not beingin conformity ~-4ththe ajmand purpose of the Compromis
between the Parties.
1now corneto the substance of the case and 1would like first to Saythat my
address will be divided into two principal parts. In the first part I shall try to
show that the Federal Repnblic of ~Germanyis under no obligation to accept
the equidistance method ifthat method does not lead to an equitable apportion-
ment of the continental sht:lf between the Parties. And in the secoi~dpart of
rny address, 1 shall try to show that the equidistance boundaries proposed by
the Kingdorn of Denmark and the Kirigdom of the Netherlands do not con-
stitute such an equitable agportioriment under the special circumstances of
this case.
Now, before taking up the frst qui-stion,it might be convenientto clarifythis
issue by stating the basic legal position:; of both Parties on this question.
The Kingdom of Denma.rk and Ihe Kingdom of the Netherlands take the
position that they wereallowed under international law to rely vis-à-vis another
State on the principle of equidistanci:, and wereeven allowed to determine their
continental shelf boundarii:~ unilaterally by application of the equidistance
method until such time as the other State had succeeded in establishing that
there were special circumslances justifying an adjustment of the boundary in
the latter's favour. This legiilposition is founded on the legal assurnption that
a delimitation of the contine:ntalshelf bg application of the equidistancemethod
is prima facie valid under internatic~tallaw.
The Federal Republic of'Germaily, on the other hand, takes the position
that the delimitation of the continental shelf betweenthe States adjacent to the
same continental shelf has to be achieved in siich a way that eacti of those
States gets a just and equitiible shaie. Al1methods, including the equidistance
method, that have been appiied in State practice to determine the boundary
between States adjacent to ihe sarnecontinental shelf, should be appkiedwith a
view to their purpose of eiTectuatirigan equitable apportionment bctween the
States wncerned.
In the opinion of the FecleralReliublic of Germany, the justification for the
application of the one or the other ~nethodof deIimitation depends essentially
on the test of whether it effectsan equitable apportionment in the concrete case.
While it does not deny that the application of the equidistance method may in
many cases result in such aii equitatlle apportionment, the Federal Republic of
Germany takes the viewthat there jsno prima facie validityof the equidistance
boundary nor any rule of international law which allows a State to delimit its
continental shelf vis-à-vis another Stirte unilaterally by application of the
equidistance method unless the othw State acquiesces in such a boundary.
As to the delimitation of the continental shelf between the Parties in the
North Sea, the legal position of thr: Federd Republic is the following. First:
Thereisno obligation on the FederalRepublic of Germany to accept tlie equidis-
tancm eethod, if it is not established by agreement, by arbitration or othenvise,
that the equidistance linewill achieve an equitable apportionment between the
Parties.
Second: The equidistanci: method cannot be applied here because its appli-
cation would resuIt in bouudaries ~vhichdo not allocate a just and equitable
share of the continental shelf to Germany. Third: The Parties have to agree on
another boundary line which woulil apportion a just and equitable share to12 NORTH SEA CONTINENTALSHELF
both sides,taking into account the extent of their territorid connection with the
continental shelf in the North Sea.
If you would care to look at this big map behind me, this map illustrates the
delimitation of the continental shelf between the Parties and their respective
shares of the continental shelf, if the equidistance method wereto be applied in
that part of the North Sea between these Parties. We trust that even the most
critical observer would understand that the Federal RepubIic of Germanycould
not accept such an apportionment as equitable. Why does the Federal Republic
of Germany consider it to be inequitable?
First: The German part would be reduced to a srnaIlfraction of the whole
North Sea area,not corresponding to the extent of its contact with the North
Sea.
Second: The German part would extend only half-way to the centre of the
North Sea where the parts of Great Britain, Norway, Denmark and the
Netherlands meet.
Third: The square area of the German part compared with the Danish or
the Netherlands' part would arnount only to roughly 40 per cent. of the area
of Denmark's or the Netherlands' part respectively. This, in the view of the
Federal Republic of Germany, would be out of proportion to the breadth of
their respective coastal front facing the North Sea.
The diagram reproduced in the Common Rejoinder of the Kingdom of
Denmark and the Kingdom of the Netherlands, 1, page 470, figure A, if you
would care to look at this map, illustrates the disproportion between the
German part on the one hand and the Danish and the Netherlands' parts on
the other even more clearly.
1shall come back later in rny address to the criteria for the appreciation of
why such an apportionment is inequitable, and 1 shall then try to show what
would be an equitable apportionment of that part of the continental shelf
between the Parties under the special circumstances prevailing in that part of
the North Sea. For the moment it may be sufficientto Saythe following.
The Federal Republic doesnot want to upset the whole schemeof boundaries
in the North Sea. It does, however, ask for some adjustment of the boundaries
of its continental shelfto the effectthat the Federal Republic of Germany would
be accorded a sector-like share comparable in shapeto thoçeof itsneighbours
and reaching the centre of the North Sea. 1shall show later in my address why
such an apportionment of the south-eastern sector of theNorth Seabetweenthe
three Parties to this case is indeed the most equitabIe solution.
In spite of this rather modest demand, the Kingdom of Denmark and the
Kingdom of the Netherlands have repeatedly accused the Federal Republic of
Germany of attempting to gain something at the expense of its neighbours.
1 must emphatically reject that accusation because the questions of where the
boundaries will have to be drawn and whether those boundaries which are
proposed bythe Kingdom of Denmark and the Kingdom of the Netherlands are
the right ones, is stisubjudice.
1 think it to be a more correct approach if we would look at this south-
eastern sector of the North Sea which comprises the Danish, German and
Netherlands' continental shelf as a singlewholeand then ask ourselves how to
divide this sector betweenthe Parties equitably. That in my viisthe reai issue
in this case.
Now 1would like to turn to the question which is the principal object of the
Map exhibitedin the Court room.For a similarmap seethe map in the pocket
insidethe back coverof Volume 1(Annex 16 to the Danish Counter-Mernorial). ARGUIMENT OF PROFESSOR JAENICKE 13
first part of my address, whe:thertheiaeis an obligation on the Federal Republic
of Germany to accept the equidistance boundary under customary international
law. Beforegoinginto more details 1would like you to allow meto submit some
observations on the function of the equidistance method jn the law of the
continental shelf.
First I should point out that the equidistance method is now, as it has always
been, merely a specific geornetrical :methodfor constructina boundary line,
and isnot and has never tieen a niIe or principle of law. It was a method
occasionally used by States for the determination of their boundaries in lakes,
riversand coastal waters when, and. only when, they were in agreement that
thismethod effectedan equit,sblepartition ofthe waters betweenboth territories,
When the experts recomimended the equidistance method to the Inter-
national LawCommission iri 1953and spoke of the "principle" of equidistance,
they certainly did not recommend it asa "principle of law". They wereexperts
on the drawing of boundarii:~,but tiiey were not asked to determine questions
of international law. They rather understood it as a principle of geometric
construction which might be used for dcfiningthe boundary, so 1do not think
that it could be inferred froin thusiof the word "principle" in this report of
the cornmittee of experts that they ~egardedit as a "principle of law" asour
opponents will makeus believe.
Therefore 1 respectfully tiubmit that the real question is not whether the
equidistance method is a rule or pririciple of law, which it is certainly not, but
rather whether there is any rule of law which prescribes under which circum-
stances the equidistance method deierniines the boundary. The confusion of
method and legalrule, the confusion of the equidistance method as such and of
the rule of law which determines the circumstances under which this method
may or should be used, has very m~ichtended to obscure the real legal issue.
Secondly, 1 should recall that in our klernorial had alreadydemonstrated
the merits as well as the inherent weaknesses of the equidistance niethod in
ensuring an equitable apportionmeni: of maritime areas between neighbouring
States. We have dernonstrated the Iary cautious and reluctant incorporation
of the equidistance method iilto Article 6, paragraph 2, of the Continental Shelf
Convention. 1 shall not repi:at al1tfiis liere. 1 should, however, like to direct
your attention to the following point. It is evident from the history of the
equidistance method that it had beerithe main concern of the mernbers of the
International Law Commiss.ion as well asof the delegations at the Geneva
Conference in 1948to formulate a rule tliat would solvethe question of deIimi-
tation between States adjacent to the:saine continental shelfwith due regard to
equity and justice and to find a forrriula which would ensure equitable appor-
tionment between the States concei:ned. 1 may cite in this connection the
Counter-Mernorials of the .Kingdoni of Denmark and the Kingdom of the
Netherlands which admit in paragraphs 55and 49 respectively,that in the case
of two Statesfronting upon the samecontinental shelf, the areas whichare to be
considered as appertaining t<ione or the other areto be delimited on equitable
principles, they continueto say that Article 6 of the Geneva Convention was
designed to translate this concept into a more concrete formula.
The committee of experts, which in 1953 first proposed the equidistance
rnethod as a suitable methotl for the drawing of maritime boundaries in terri-
torial waters between adjacent States, restricted its recommendation for this
method by the following resewation: in;inumber of cases this may not lead to
an equitable solution, whicfi should then be arrived at by negotiations. This
clearly indicated that the iipplication of the equidistance rnethod for the
determination of a boundary was considered dependent on the proviso that14 NORTH SEA CONTINENTAL SHELF
this method would yield an equitable result, and that a rule prescribing the
application of the equidistance method would lose its raison d'itre if this
condition were not fulfilled.
Therefore 1respectfully submit that the equidistance rnethod as such cannot
be characterized asa ruIe or principle of law. It is mereayrnethod whichmay
apply as long as it ensures an equitable apportionment of the continental shelf
between the States concerned, but has to be discarded in favour of another
boundary line if its application proves to be inequitable. For this method to
become part of international law a specificrule of law is necessary which pre-
scribes under what circurnstances the equidistance method should apply. The
place of the equidistance rnethodin maritime law cannot properly beconsidered
without taking into account its instrumental character, namely its functias a
rnere instrument for an equitable settlement.
1 now proceed to the question whether, as the Kingdom of Denmark and
the Kingdom of the Netherlands allege, Germany was under an obligation to
accept theequidistanceline as a boundary of itscontinental shelf.The Kingdom
of Denrnark and the Kingdom of the Netherlands have aiready gone so faras
to fixtheir continental shelf boundaries unilaterally, vis-&vis the Federal
Republic, by application of the equidistance method. They have granted
concessions within these boundaries, and they have concluded and ratified
boundary treaties which disposeof maritime areas asif the Federal Republic of
Germany had never cIaimed continental shelf areas beyond the equidistance
line. The last of these treaties, the Treofy31 March 1966,fixinga boundary
between the Danish and the Netherlands continental shelf parts, as they
consider them to be, has only recently been ratified, although Germany had
entered a strong protest against this treaty. Al1this happened whilenegotiations
were still in progress and even while proceedingsbefore this Court were already
pending between the Parties. 1 trust that the Court will not be impressed by
those acts and will determine the principles and rules applicable in this case
without regard to the facts created by those acts.
Now the legalgrounds whichthe Kingdom of Denmark and the Kingdom of
the Netherlands have advanced as justificatipn for their claim that the Federal
RepubIic of Germany is under an obligation to accept the equidistance Iine as
the boundary between their respective continental shelves, may besummarized
under the following categories:
First: they allege that the Federal Republic of Germany is obliged to accept
the equidistance method under customary international law.
Second: they allege that the delimitation by application of the equidistance
method followsfromthe concept ofthe continental shelfand isthereforebinding
on any State claiming a continental shelf.
Third: they allege that the Federal Republic had recognized the general
acceptability of the equidistance method.
Iturn to the first argument, the allegation that the Federal Republic were
under obligation to accept the equidistance lineunder customary international
law.As to this subject1 may refer to the mass of arguments inour Mernorial as
well asin our Reply, where we have dealt extensivelywith this question. 1 feel
obliged not to presume upon your patience by repeating al1these arguments
previously advanced by us against the alleged custornary law character of the
equidistance rnethod. However, 1believethat I must repIy to some arguments
which have been brought to the forefront in the Common Rejoinder of the
Kingdom of Denmark and the Kingdom of the Netherlands.
It rnay well have been that the criticisms in our Reply against the lack of
clarity as to the basis of the obligatory character of the equidistance method ARGUMENT OF PROFESSORJAENICKE 15
have had an effect. Inany vient, sonneclarity has now been forthcorning, The
Kingdom of Denmark and the Kingdom of the NetherIands, in their Common
Rejoinder, have now more clearly explained why and to what extent they
regard the equidistance method as customary international law.They assert, in
paragraph 39 of their Rejoinder, thmatby the work of the International Law
Commission, by the adoption of the Continental Shelf Convention at the
Geneva Conferencein 1958,and by subsequent State practice since the Geneva
Conference, a consensus ha.developed as tothe acceptabilityof the so-called
equidistance-speciaI circumstances riile; and that this so-calIed equidistance-
special circumstancesrule has now acquired the statusof a generallyrecognized
rule of international law. This assertion, as formulated in paragra39 of the
Common Rejoinder, issignificant iri several respects. First, the Kingdom of
Denmark and the Kingdom of the Netherlands now seem to agree that at least
prior to the time of the Gerieva Coriference of 1958, and even for some time
thereafter, there had been no customary lawrule requiring the application of the
equidistance method.
Secondly, the Kingdom of Denmark and the Kingdom of the Netherlands
now admit that it is not the equidistance method assuch which allegedly had
acquired customary law sta.tus, but rather the so-called equidistaace-special
circumstances rule which has acquircd this status; In other words, the alleged
rule of customary internatiorial law h;isiriits substance ben reduced to the
statement that under customary international law the equidistance method
applies only if no special ciircumstar~cesare present. This asvery important
step back, a very important retreat :fromthe position originally taken by the
Kingdom of Denmark and the Kingdom of the NetherIands in the negotiations
and in some passages of their previoils written pleadings. They have discarded
their previous position that the equidistance method as such, or, as they choose
to cal1it, the principle of eqriidistapure and simple, has acquired the status
of a generally accepted prinçipleof I,xw.
Thirdly, even if we would accept the so-calIed equidistane-special circum-
stances rule as the customary law rule governing the delimitation of the con-
tinental shelf, even1 Say,if we were to accept that,1 nevertheless cünnot see
how such a rule could possibly enable a State to fix unilaterally its continental
shelf boundary by application of this equidistance method as long as the other
State objects to such a bouridary becaufie,in its view, there are circumstances
present whichexcludethe application of the equidistance line. There must first
be agreement among the parties that no such excluding circumstmces are
present.
ïhus, in such a case it rnust be settled either by agreement or by arbitration
whether, under the circumstances of he concrete we, the equidistance method
may be applied or not.
My fourth and my last comment clnthe alleged customary law status of the
equidistance-special circuma~tmcesruIe is this. If the speciaI circumstances
clause within that rule would be interpreted in accordance with its purpose,
narnelywith its purpose to allow ancltherboundary line when the equidistance
method wouId lead to an in8:quitabIt:result, then such an equidistance-special
circumstances rule would not in its substance differ materially from the legd
position taken by the Federal Republic of Germany. It is the position of the
Federal Repubiic of Germany that under general international law the equidis-
tance method cannot be applied agiiinst the State unless it is established by
agreement-arbitration or othenvise-tliat it wilI achieve a just and equitable
apportionment among the States coricerned.
The efforts ofthe Kingdoni of Deninark and the Kingdom of the Netherlands16 NORTH SEA CONT~NENTALSHELF
to have the so-called equidistance-special circumstances rule recognized by the
Court as a custornary law rule binding on the Federal Republic of Gerrnany
seem mainly directed to the effect that such a rule could be interpreted as
containing a presurnption in favour of the equidistance method. This thereby
seems to be designed to shift the onus of proof on to the Federal Republic of
Germany to show some cagent reason why the equidistance method should not
apply under the circurnstances of the case. And it may further be designed to
provide the Kingdom of Denrnark and the Kingdom of the NetherIands with an
argument for justifying theunilateral application of the equidistance method in
delimiting the continental shelf vis-à-vis Germany.
Article 6, paragraph 2,of the Continental Shelf Convention might possibty
be interpreted as creatinga presurnption in favour of the equidistance method
because the authors of this provision thought that the equidistance line would
under normal geographical circumstances yield an equitable result. They
therefore prescribed the use of the equidistance method if no special circum-
stances are present justifying another boundary line. However, evenifArticle 6,
paragraph 2, of the Convention could be interpreted as creating such a pre-
surnption in favour of the equidistance method, it couId then oniy be invoked
against those States which have become parties to the Convention without
making a reservation to Article 6 in this respect. But it certainly cannot be
invoked against the State which has not subscribed to Article 6,nor could such
a presurnption be regarded as having acquired the force of customary law
binding on al1States. And even if the presumption could be invoked in favour
of the equidistance line between the parties, this does not yet convey a valid
title to the equidistance boundary as long as the application of this method is
disputed by the other Party and the dispute has not beensettled by agreement or
arbitration.
The rnost convincing argument, 1 feel, against the alleged custornary law
character of the ruIe contained in Article 6 (2) of the Continental Shelf Con-
vention isthe fact that by Article 12of the Convention reservations are allowed
to al1articles of the Convention other than to Articles 1,2 and 3; and con-
sequently, also to Article6. Article 12reads as follows:
"At the tirne of signature, ratification or accession,anyState may rnake
reservations to articles of the Convention other than to articles 1 to 3
inclusive,"
These words contain not only an impliedbut rather an express authorization to
make reservations to al1other articles of the Convention than those rnentioned,
including Article 6. Reservations have in fact been made to Article 6 by France,
Iran, Venezuela and Yugoslavia: some of them exclude the application of the
equidistance method within certain areas before the coasts of these States. These
reservations have been cited in Annex 3 of the Counter-Mernorial and 1think
1 need not give any more details here. However, 1 would like to point to the
wording of the French reservation which isparticdarly significant.
TheCourt adjourned from 11.20 am. to4.05 p.m.
This morning, 1had just began talking on the impact Article 12 of the Con-
vention, allowing reservations to Article 6 of the Convention, has on the
formation ofcustomq law on the basis ofthe Convention. I had referred to the
fact that certain reservations in fact had ben made with respect to Article 6,
excludingthe application of the equidistancemethod within certain areas before
the wasts of these States.. .
ARGUPBENTOF PROFESSORJAENICKE 17
I referred specificallyto the Frencli reservation, and becauseit isverysignifi-
cant inits wording, I would liketo read it here. The French reservation goesas
follows:
"In the absence of a !ipecificagreement, the Governrnent of the French
Republic will not accept that any boundary of the continental shelf
determined by application of the principle of equidistance shall be invoked
against it:
if such boundary is calculated frcim [other] baselines established after
29 April 1958;
if it extends beyond the 200-metre isobath;
if it lies in areas where, in the Government's opinion, there are 'special
circumstances' withinthe meaning of Article 6, paragraphs 1 and 2, that
is to Say:the Bay of Biscay,the Bay of GranviIle, and the sea amas of the
Straits of Doverand of the North Sea off the French coast."
You find the wording of the French reservation in Annex 3 of the Counter-
Mernorialsof the Kingdom of the Nei.herlands and the Kingdom of Denmark, 1,
pages 377 and 231, respectiwely.
In view of the authorization for resen~ationsto Article 6, and in viewof the
reservations that actually hi~vebeen made, it seems impossible to avoid the
conclusion that a provision of the Convention, whose application may be
excluded by a State ratifying or accedingto the Convention, cannot be invoked
under al1circumstances against a State, as the Federal Republic of Gerrnany,
which had not yet ratified or acceded to the Convention, under the title of
customary international law.
If the equidistance-special circumstances rule, contained in Article 6, really
had been promoted to a customary Iaw rule, aithe Kingdom of Denmarkand
the Kingdom of the Netherlands try to assert,it would be rather astonishing
that arule, the application of which might, and in some cases had in fact been
excluded under Article 12 of the Convention, had emerged by some mysterious
customary law-creating process into a more stringent rule for States which are
not parties to the Convention.
ln their Common RejoiniSerthe ICingdom of Denmark and the Kingdom
of the Netherlands have devoted murh energy to the effort to escape from the
force of this reasoning. Their arguments have followed three diKerent lines;
each of them needs special comment.
First argument: In their Common Rejoinder, the Kingdom of Deninark and
the Kingdom of the Netherlands assert that reservations to Article 6 that ex-
clude the application of the principle of equidistance would be contrary to the
objects and purposes of the. Converition, and therefore inadmissible. In this
connection they point to the fact that such reservations had ben declared un-
acceptabIe by other parties to the Ccinvention.
This argument, however, cannot ba:sustained. It cannot besustained because
it is at odds with the established prini:ipIesof the lawof treaties with respect to
the admissibility of reservations.If rnultilateral conventions expressly or im-
pliedly allowreservations to certain articles of the Convention, it follows there-
from: First, that the contracting parties did not consider such reservations as
being contraryto theobjectsandpurgoses of the Convention. Whyshould they
allow them if they thought otherwise? Second, that such reservations as are
authorized by the contracting parties in the treaty need not be accepted by the
other parties to the Convention in order to become valid.
May I respectfully refer to the draft articles of the Law of Treaties adopted
by the International Law Cornmis~ic~n concerning the admissibility of reserva-18 NORTH SEA CONïINENTAL SHELF
tions. Article 16of the 1966 draft of the International Law Commission states
that "A State may, when signing, ratifying, accepting, approving or acceding
to a treaty, formulatea reservation if not expressly or impliedly prohibited by
the treaty". Here, inOurcase, reservations to Article 6 of the Continental Shelf
Convention are expreçslyallowed. Accordingly the question whether the reser-
vation might be contrary to the object and purposes of the treaty willberelevant
only in those cases where the treaty contains no provision regarding reserva-
tions. That follows clearly from Article 16 (c) of the draft "Law of Treaties"
where this conditionis expresslyprovided for in case the Convention or treaty
is siIenton this matter. Since,however, the Continental ShelfConvention deter-
mines expressly with respect to which of the articles of the Convention reser-
vations may be made, and as to which of the articles reservations are not al-
lowed, the admissibility of a reservation depends solely on the determination
whether it affects articles of the first or the second category, andnot on the test
whether it might be compatible with the object and purpose of the treaty. As
the International Law Commission explains in paragraph 10of its commentary
to Articles 16 and 17 of its 1966draft-1 cite from this commentary:
"... where the treaty itself deals with the question of reservations, the
rnatter is concluded by the terrns of the treaty. Reservations expressly or
irnpliedly prohibited by the terms of the treaty are excluded, while those
expressly or impliedly authorized are ipso facto effective. The problem
concerns only the cases where the treaty is silent in regard to reservations,
and here the Commission was agreed that the Court's principle of 'com-
patibility with the object and purpose of the treaty' is one suitable for .
'
adoption as a general criterion of the legitimacy of reservations to multi-
lateral treatie..."
In short, al1arguments concerning the alIegedincompatibility of reservations
to Article 6 with the object and purpose of the Continental Shelf Treaty are
beside the point.
Article 17 (1) of the 1966draft on the Law of Treaties states that: "A reser-
vation expresslyor impliedlyauthorized by the treaty does not require any sub-
sequent acceptance by the other contracting States unless the treaty so pro-
vides." In paragraph 18of its cornmentary to Articles 16and 17 the Commis-
sion explains the basis of this provision. It points to the fact that where the
consent of the other contracting States to reservations had already been given
in the treaty, no further acceptance of the reservation is therefore required.
Therefore the validity and the importance of the reservation made by some
States to Article 6 of the Continental Shelf Convention is in no way affected
or minimized by declarations of other parties to the Convention that they
consider such resewations unacceptable. Reservations to Article 6 could only
be considered inadmissible if, and to the extent, that they were in their sub-
stance not confined to the ruIe contained in Article 6 but would affect other
articlesof the Convention to which no reservations are allowed. However,
reservations excluding the presumption contained in Article 6 do not affect
the substance of Articles 1 to 3 of the Continental Shelf Convention. This
brings me to the second argument advanced by our opponents against the ad-
missibility of reservations to Article 6.
The second argument runs Iike this: In their Common Rejoinder, the King-
dom of Denmark and the Kingdom of the Netherlands assert that reservations
to Article 6 which exclude the application of the equidistanm Iine rnethod are
inadmissible because a State might thereby claim continental shelf areas which
appertained by right aireadv to another coastal State. ARGUMENTOF PROFESSORJAEN~CKE 19
The argument is that by Article 1 of the Continental SheIf Convention the
coastal State had a legal titk to the continental shelf area adjacent to its coast
and, as is still the argument of our opponents, that the areas that are nearer
to some point of the coast oi'that Sta.teare adjacent and therefore appertaining
to that State. This would rriean that Article 1 in combination with Article 2
would already decide what ])arts of i:hecontinental shelf by right appertain to
this or one or the other Stale.
Such a reasoning is wholiy inconsistent with the Iegal concept of the con-
tinental shelf andwith the :systemof the Continental Shelf Convention. It is
based on the erroneous assurnption, which we have already rebutted in our
Reply, that'Article 1 of the Continental Shelf Convention had, by using the
term "adjacent to the coast" in the definition of the continental shelf, impliedly
sanctioned some sort of possessory title of the coastaI State, valid ergo omnes
as a criterion for dividing the contjnental shelf between the adjacent States,
Article 1 of the Continental Shelf Convention had no other purpose than to
define and to delimit the cclntinental shelf in its juxtaposition as to the terri-
torial sea, on the one hand,and the open sea on the other.
Article 2 recognized the sovereign rights of the coastal States over the con-
tinental shelf before their coasts, without using the term "adjacent" in this
context, and without attempting to decidc conflicting claims of two or more
States to the same areas of the coritinental shelf which each of them might
consider to lie before its own coast and to be the natural continuation of its
territory.
Ttwas the purpose of Article 6, arid cifArticle 6 alone, to provide a rule for
resolving conflicts between neighbour States in delimiting their continental
shelves. Article 6 expressly refers tii the situation-1 cite the words used in
Article 6, paragraph Il-7Vhere th#:samc continental shelf is adjacent to the
temitories of two or more States. . .",or in paragraph 2: "Where the same
continental shelfisadjacent to the territories oftwo adjacent States..." 1think
that any atternpt to draw from the terrn "adjacent" used in Article 1 a con-
firmation of the principle of'equidisiance must therefore fail, and reservations
to Article 6, excluding the application of the equidistance method in certain
areas before coasts, could not possibly be incompatible with Articles 1-3 ofthe
Convention.
Now 1 corne to the thircl argument advanced by our opponents. In their
Common Rejoinder the Kin~dom of Deilmark and the Kingdom of the Nether-
lands argue that the reservations tha.thad actually been made by some parties
to the Continental Shelf Coovention did not question the general applicability
of the rule contained in Artirle (2) of the Convention, but that they wereonly
made forthe purpose of claiining the special circumstances clause withincertain
areas before their coast. Even if this interpretation of the reservations, which1
cannot share, were correct, 1 fail tosee how this would affect the validity of
our argument that the play of the rule contained in Article 6 (2) may, under
Article 12,be excluded by a reservation to Article 6. If these rese~ations have
any purpose at all, they can only mean that the States which have made reser-
vations to Article 6 do not ~ant the rule contained in Article 6, namely if it is
interpreted as a presumption in favour of the equidistance method, to be in-
voked against them within the areas covered by their reservation. Whyshould
they make any reservation .st all, if their claim that there are special circum-
stances present in this case could already be satisfied within the realrn of
Article 6?For example, the reservation made by France with respect to certain
areas, and that is why 1read the Fri:ncll reservation, before its coast can only
mean that France does not want to recognize anypresurnption forthe appiica-20 NORTHSEACONTINENTALSHELF
tion of the equidistance line within those areas. 1ftake another reservation,
the reservation made by Yugoslavia can only mean that Yugoslavia does not
want to recognize any exception to the equidistance line under the title of
"specid circumstances", asprovided for in Article 6 of the Convention.
To sum up, it seernsthat the reservations made by some States to Article 6
of the Continental Shelf Convention confirm our view that it is necessary that
the rule contained in Article 6 must have ben formalIy accepted without
reservation by a State before it rnabeinvoked against that State. If we would
not accept it, but would follow the reasoning of the Common Rejoinder, we
would have to visualize the absurd result thatany State,as long as it had not
ratified or acceded to the Convention, would be obliged, under customary
international law, to accept the presumption for the application of the equi-
distance Iineas a general mle, but that such a State, if it ratifies or accedes to
the Convention, then may exclude this play of the rule contained in Article 6
by making a reservation to Article 6.
At this point we touch upon the very difficult problem-and 1think it is a
very important one-of the relationship between law-making conventions and
customary international Iaw. If the rule contained in Article 6, the so-called
equidistance-special circumstances rule, had ever become a rule of customary
international law, it could have become so only in harmony with its pIace and
scope of application within the system of the Continental Shelf Convention.
There could not have beenany formation of customary international law on the
basis of the Convention and by the adoptionand application of the Convention
if such a rule should bemore severe to the States than the conventional role
itself. If the rule contained in Article 6 may, under the Conventbenexcluded
by a reservation of a ratifying State, sacrule could not possiblyhave become
customary international law without regard to the possibility of being wholly
or partly excluded by reservations allowed under Article12 ofthe Convention.
If, Say,the Federal Republic of Germany would today ratify the Continental
Shelf Convention, and attach a reservation to Article 6 in the sensethat it does
not recognize the principle of equidistance being applicable in the NorthSea,
could then the Kingdom of Denmark and the Kingdom of the Netherlands
invoke Article 6 against the Federal Republic? The legal situation would then
certainly have to bejudged as if ArticIe 6 did not exist, because a valid reserva-
tion to an article of the Convention excludes the applicability of that article
between the Parties. The necessary consequence of such a situation would be
that the Partieshad no other choice than either to agree on a boundary line
which would be considered equitable to both sides, or to submit their case to
arbitration, arthe Parties have donein this case.
To conclude my comments on the question of reservations, 1respectfully
submit that al1the arguments advanced by the Kingdom of Denmark and by
the Kingdom of the Netherlands have not ken able to weaken the importance
of Article12 of the Continental Shelf Convention as a solid argument against
the alleged customary law status of the equidistance rnethod.
I now corneto another point that has been made by the other side: In trying
to find more support for the customary law status of the equidistance method
they have referred to the practice of States. For this purpose let us refer to the
practice of States after the Geneva Conference of 1958.The opposing side has
relied heavily on State practice in support of its case, and has cited numerous
cases of water boundaries in rivers, lakes, territorial waters, and in the con-
tinentaI shelf.
I suggest it would be supe4uous to discussal1these cases where States have
partly agreed on the equidistance line and partly on another boundary line. ARGUIMENT OF PRCIFESSORJAENICKE 2 1
1feel, however, that it is ne:essary to comment on the evidential weight of al1
these cases as to the questioriwhether there is an obligation to regard the equi-
distance method as the onl!, rule, or at least as a general rule, which applies
if no special circumstances ;ire present.
If al1those casescited by the other side are to constitute valid precedents for
such a customary law rde, it isnot i:nough toprave that the equidistance liw
had been thought acceptable by the l'ariies in that case. There can be no doubt
that in quitea number of cases the eiluidistance line wilt effean equitable ap-
portionment between the States concerrred.This has never been denied by the
Federal Republic of Germany. But it is quite another thing to asscrt that a
State is under an obligation to accept the equidistance line as a boundary, even
if that State considers the line to be itieqiiitable,or if that Statethinksthat there
are special circumstances which justify another boundary. If the Kingdom of
Denmark and the Kingdom of the plletlierlandsthink that there is such a iule
which obliges a State under al1circi~mstancesto accept the equidistance line,
perhaps special circumstances excepted, do the cases support such a theory?
1think they do not.
1will explain this in a fewwords. First, all casesconcerningthe delimitation
of boundaries in rivers, Iakes and coastal waters should be discarded. The
determination of boundaneii in such waters is not comparable to the drawing
of boundaries on the contiriental shrlf. Those boundarieç in rivers, iakes and
coastal waters do not decide on thi: allocation of extensive areas with large
potential resources to the one or the other State as continental shelf boundaries
do. The interests which bezr on the delimitation of river, lake and coastal
water boundaries, are of qtiite anat:her character than interests which exist if
States wish to extend their jurisdiction over the continental shelf before its
Coast.
Boundaries of infand or territoria.1waters determine who is to control the
surface waters, including cclntrol over fisheries, water pollution and the like.
The continental shelf boundarjes, ori the other hand, do not accord any such
rights of control over surface water. They rather determine who has authority
to explore and exploit the rcsources berieath. The main consideration that in-
fluences State practice in the acquisitiori and delimitation of continental shelf
areas is the idea of gettinga.share iri the potentialities of the continental shelf
that have accrued to the coma1 States Iiy the progress of modern technology.
No comparabfe interests are at stake in the determination of inland or coastal
water boundaries betweennt:ighbour.ingStates. Therefore it is extremelydoubt-
ful, if not inadmissible, to contend tkiatthe use of median or equidistance lines
in suchwaters could create validprecrdents for the delimitationof the continen-
tal shelf.
But even if we would accr:ptsuch cases as precedents, and I now stress this
point particularly, al1these caseswotildprove nothing more than that the equi-
distance method had been iised wherevcrboth sideshad regarded such delimi-
tations as equitable under the cipmstances of the particular case. Nothing
elsecan be proved by such agreements. if it were otherwise one would have to
prove that al1water boundaries had been determjned and fixed on this prin-
ciple. That isjust, 1think, the impo:rtant point. We quite agree that the equi-
distance method had ken used, biit only in those cases where both States or
the States concerned agreed on usine:this equidistance line, and naturally they
only did so when both side:;did coiisider the application of the equidistance
method as equitable to both of therri.
Therefore reference to agreements thar have from time to time used the equi-
distance method do not prave at al1thiit there is a general obligation for al122 NORTH SEA CONTINENTAL SHELF
States to accept the equidistance line as the sole or the general rule. We have
therefore, I suggest, to concentrate on the few cases where the delimitation of
the continental shelfwas in issue. Here again wefind cases wherean agreement
had been reached to determine the boundary by application of the cquidistance
method. There are not many cases, and the Kingdom of Denmark and the
Kingdom of the Netherlands in their pleadings had a lot to think about where
such boundaries had ken agreed on. However there are other cases where the
agreed boundary does not follow the equidistance line. 1may only refer to the
continental shelfboundaries on the WestCoastof South America, Peru, Ecuador
and Chile where the parallel of geographical latitude has been chosen as the
boundary of the continental shelf bettveen those countries. I have referredto
what has been done in this area of the world in the Annex to our Reply under
No. 2. The Kingdom of Denmark and the Kingdom of the Netherlands, in
their Cornmon Rejoinder, try to minimize the importance of these cases where
the equidistance line has not been used by saying that there were highly special
reasons that had led these States to agree on another boundary line. That is
exactly the point. 1 think that these States were evidently of the opinion that
the equidistance line wouldnot be suitable for determining the limits and boun-
daries of their continental shelf.
What 1think is most important for assessingthe evidential value of al1such
cases isthe fact that most boundaries have not yet been determined at all. Does
such a practice prove that the equidistance method has been accepted as the
only or general rule regardless of what share each State would receivepursuant
to this method of delimitation? 1do not think that the existing practice proves
the recognition of such a rule, When a boundary treaty had been concluded
on the basis of the equidistance method, that had been done because both sides
did consider this method of delimitation as equitable under the geographical
or other circumstances of the case.And even then the parties had not been blind
to the effect of the equidistance boundary on the apportionment of continental
shelf areas between theni. Where itseemed appropriate to thern, corrections
have been made with a view to giving each party an equitable share.
I shall not comment on each of these cases in more detail. 1shall probably
do it laterin the oral hearing if time permits. For the moment 1 respectfully
submit that the State practice does not support the contention that there is an
obligation under customary law to accept the equidistance method as the only
or at least as a general rule-special circumstances excepted.
In attempting to put their case on a safer ground than on custom, the King-
dom of Denmark and the Kingdom of the Netherlands maintain, with even
more emphasis in their Common Rejoinder than in their previous pleadings,
that customary law apart, the delimitation by the equidistance line was in any
case inherent in or an integral part of the concept of the continental shelf,
Allow me to cite the following passage frorn paragraph 39 of the Rejoinder;
there they Say:
"Inherent in this concept [of the continental shelfl is the principle that
areas nearer to one State than tuany ather State are to be presumed to
fa11within its boundaries rather than within those of a more distant State;
and the application of this principle is realized aydelimitation in accor-
dance with the equidistance principle."
This is a bold theory, which might appear persuasive at the first glance but,
1 think, will prove to be untenable on closer scrutiny. Let me state the reasons
for that. First we rnust askwhat is the real essence of the alleged principle that
"areas nearer to oneState than to any other State" should fallwithin the bound- ARGUMENT OF I'ROFESSOR JAENICKE 23
aries of that State? Does that criterion "nearer toa State" mean nearer to its
territory as a whole, or is it s.ufficientthat the area is nearer to one single point
of its coast? Both alternatives may pi-oducerather different results. Obviously,
in the present context, "nearer to a S.tate7'is meant here in the sense of nearer:
to some point of the coast of that State, even if it were only one single point,
Otherwise it would not provide a j~:~tificationfor the application of the equi-
distance method. If itbe so, however, the alleged principle that areas nearer to
one State than to any other State should fa11within the boundaries of the former
turns out to be nothing elsethan anofher formulation of the equidistance nteth-
od. Since the equidistance method deterrnines the boundary in such a way that
everypoint of the boundary is equidistant from the nearest points of each coast,
then by geornetrin cacessitythe whole area within the equidistanceboundaries
of that State must be nearer to somt: pciint.of its coast. Therefore the alleged
principle that areas nearer to oneState than to any other State should faIlunder
the jurisdiction of that State is no justification, but mereayrepetition of the
contention that the boundaiy shoulii be drawn in accordance with the equi-
distance rnethod. This does 170thelp us to progress further.
After this clarification, th<:more crucial question must be posed as to what
is the legal basis for the assumption that delimitation according to the equi-
distance method is inherent in the concept of the continental shelf?
The generally recognized sight of ;iState to the natural resources before its
coast isbased on the fact thiit the continental shelf is thought to be, rightly or
wrongly, a natural continuai.ion of the State's territory into the sea; that is at
least the underlying idea we find in the commentary of the International Law
Commission to the Continental She'lfConvention. If, however, two or more
States are adjacent to the s.amecoritinental shelf, it rnay become extremely
doubtful whether certain areas of that shelf have to be regarded as the natural
continuation of the one or the other State. If you would care to take a look at
the map in the Common Rejoinder, I[,page 470, or at this bigrnap behindme1,
both maps offer a good exarnple of liow difficultit would be to say what area
should be regarded as the continuation of the territory of Denmark, of the
Federal Republic of Germariy or of the Netherlands. I think that the concept
of the continental shelf does not imrly any guidance to this question.
Speaking of the Kingdom of Denmark and the Kingdorn of the Netherlands,
however, they assert that the distance from the nearest point on the coast of
oneor the other Stateshould decidettie allocation of suchareas. Suchacriterion
isneitherinherentinthe conci:ptof thec:ontinental shelfnor could itbereconciled
with the history and substance of Article 6ofthe Continental ShelfConvention.
The concept of the continental shelf requires a solid geographical connection of
the State'sterritory with its continent;alslielf.This connection mustbe grounded
on a firmer bais than on p.coximityto some projecting point of the coast. If
propinquity to the territory of the coastal State has any significance in the
delimitation and allocation cifcontini:ntal shelf areas to one or the other State,
it must be understood in the rnuch broader senseof a closer connection with the
State's territory at large. l~erefore, distance from some single point of the
coast is not necessarily a criterion fc'ra sufficient natural connection with the
State's territory.
In the Mernorial, as wellas in the .Reply,it has, we feel, been amply demon-
strated thata boundary drarm according to the equidistam ncethod may, by
the influence of projecting parts of the coast of the neighbouring States, be
diverted in such a way that parts of the continental shelf which lie before the
Seefootnote 1on page 12.24 NORTH SEA CONTINENTAL SHELF
coast, and therefore have justly to beregarded as appertaining to that coast,
would thereby be allocated to the neighbour State. May 1refer forthis purpose
to the figures Nos. 3, 16, 17 and 18,in the Mernorial, 1, pages 40, 72, 73, and
to figures Nos. 2 and 3 in the Reply, 1, pages 427, 428.These diagrams show
that the allocation of continental shelf areas cannot be based on mere distance
from the coast.
1 think that at a later stage of the ara1hearings we might be allowed to show
you a verypractical example of such a "diversion effect"as 1would cal1it, by a
projecting point of the coast. isthe hypothetical case that before the coasts of
Haïti and the Dominican Republic an equidistance line would have to be
drawn to the north on the method of equidistance.
We shall further be able to show mathematically, by geometric construction,
how much the projection of the neighbouringcoast diverts the equidistance line
to the other side. It is interesting to realize that only one kilometre projection
of the neighbouring coast towards the sea, within farther distance from the
coast, produces a diversion of the equidistance line over more than 10 to
20 kilometres. 1will not dwell here on this point any longer; perhaps we may,
with the consent of the other Partiesand with the leave of the Court, produce
the map of the coast of Haïti and the Dominican Republic, and the geometrical
presentation which shows how much the projection of the neighbouring coast
diverts the equidistance lineto the other side, at one of the next sessions of this
Court. (See p. 28, infra.)
If delimitation on the basis of equidistance werea Iogicalconsequence of the
concept of the continental shelf, as the Kingdom of Denmark and the Kingdom
of the Netherlands try to assert, one may wellwonder why it was necessary to
invent and debate rulesforthe settlement of conflictingclaims ofStatesadjacent
to the same continental shelf; Article 6 of the Continental Shelf Convention
with its carefully balanced formula for solving such conflicts would have been
superfiuous. If it would foliow from the very concept of the continental shelf
that each State could rightfully regard al1continental shelf areas which are
nearer to somepoint of its coast than to any other coasas already appertaining
to its continentaI shelf, why does Article 6 of the Continental ShelfConvention
speak of two or more States adjacent to the same continental shelf, and why
does Article 6 provide for other boundaries if special circumstances are
present?
The Kingdom of Denmark and the Kingdom of the Netherlands seem to
interpret propinquity in the sensethat al1areas nearer to somepoint of the coast
of a State should fall under the jurisdiction of that State should be a general
principle for the allocation of maritime areas. it is on this assumption they
regard precedents applying the equidistance method in lakes,rivers and coastal
areas as valid precedents for the recognition of such a general principle. It
might be conceded that there may be a justification for the recognition of such
an idea of propinquity in the territorial sea and in the contiguous zone, because
here the distance from the coast is an essential element in the function of the
speciai legaIrégimecoveringsuchwaters.Therightsofthe coaEtalState over its
continental shelf, however, are not based on propinquity but rather on the
intensity or extent of the contact of its territory with these submarine areas.
Therefore, the allocation of continental sheff areas to one or the other State
cannot be determined by principles or criteria pertaining to boundaries in
lakes or coastal waters which may have their basis in the idea of propinquity.
Precedents which seem to recognize the principle of propinquity in those
situations carry no weight in determining the continental shelf boundaries.
To conclude this point, 1 respectfully submit that the equidistance method ARGUMENT OF PRC~FESSOR JAENICKE 25
cannot be considered as a principle inherent in the concept of the continental
shelf.
Thethird ground on whiclithe Kingdom ofDenmark and the Kingdom of the
Netherlands try to base their case is the prior conduct of the Federal Republic
of Germany, which is interpretedm; ha.vingshown that the Federai Republic
itself had found the principle of equidistance acceptable. We have already dealt
with this imputation in our Reply iri detail and I think 1need not go to great
lengthsinstating againthe reasons wkiysirchanimputationcannot bemaintained.
That the Federal Republic of Geimany has taken part in the Geneva Con-
ference adopting the Continental Shelf Convention and even finally signed the
Convention in no way leg~lly commits the Federal Republic to regard Ar-
ticle 6 (2) as applicable law, especially not in its narrow interpretation as
advocated by our opponents.
Secondly, against the Federal Republic there cannot be employed the argu-
ment that the Federal Republic first regarded Article 6 (2) as a workable
solution of the boundary problem when it signed the Convention without
reservations to that Article. I mighl Say in this connection that the Federal
Republic would be perfectly right, in ratifyingthe Convention, to attach such a
reservation to Article 6. Ai: the tirrie when the Federal Republic signed the
Continental Shelf Convention it could reasonably expect that in the interpre-
tation of Article 6 (2),especially of ii:sspecialcircumstances clause, due regard
would be paid to the purpos? of this claiise,namely to avoid inequitable results
of the equidistancemethod. :Lis quite understandable that the Federal Republic
of Germany later hesitated iriratifying the Convention when it becarneapparent
that the Kingdom of Denrriark and the Kingdom of the Netherlands would
interpret Article 6 (2) so restrictively.
The third point: the Cornmon Rejoinder refers to a Note VerbaIe of the
Danish Government of 13 May 1952 to the Secretary-General of the United
Nations commenting on the propos;ils of the International Law Cornmission.
This reference should, 1think, show thai:the German Government shouId have
been aware of such a narrow interpretation of Article 6 (2)by the other parties.
There, a sketch map was attached to this document which illustrated the
delimitation ofthe Danish continenta.1shelfifthe equidistance method wouId be
applied. It was, as you see, a rather hypothetical comment and, moreover, this
map has never been pub1ishr:din the officialdocuments of the United Nations,
nor has it corneto the officielknowlcdge of the Gerrnan Government.
Fourth point: as soon as it becami:apparent that the Kingdom of Denmark
and the Kingdorn of the Netherland:srelied on such a strict application of the
equidistance rnethod vis-à-visthe Feiieral Republic, the Federal Republic took
every opportunity to protest against any act of unilateral application of the
equidistance method and to reservt: its legal position that the equidistance
method should not apply between the parties in the North Sea.
In the last resort the Kingdom of Ilenmark and the Kingdom of the Nether-
lands refer to the Continental Shelf Proclamation of the Federal Governrnent
of Germany of 20January 1964,whichisproducedin the Annexto the Comrnon
Rejoinder. They refer to it asif it co~itainedan implied recognition of Article 6
(2) of the Continental Shelf Convention. This, 1submit, cannot be accepted as
had already been explained in paragiTaph28 of our Reply. The phrase that the
"detailed" delimitation would be subjec:tto agreement with the neighbouring
States showed clearly that the Feder.31Republic of Germany was not going to
accept a unilateral application of the strict equidistance method in relation to
its neighbours. In any event, that phrase was not meant to refer only to minor
corrections of the equidistarice line.26 NORTH SEA CONTMENTAL SHELF
To sum up, 1 hope to have shown that there is no legal basis whatsoever for
the State which has not ratified the Continental ShelfConvention to accept the
equidistance method for the delimitation of its continentalshelf,boundary if
such a boundary would not effectuate an equitable apportionment of the
continental shelf between the two States.
.Article 6 (2) has not becornecustornary international Iaw,so it cannot form a
basisforthe Kingdom of Denrnark and the Kingdom of the Netherlands to rely
unilaterallyas well as in their negotiations with the Federal Republic of
Germany, on the equidistance line to the effect that the Federal Republic had
to accept this equidistance line even if it did not consider it equitable.
The equidistance method is not inherent in the concept of the continental
shelf. Therefore, the general concept of the continental shelf cannot form any
legal basis for a claim that a State must accept the equidistance method asthe
only or, at leastas the general ruIe.
There isnothing in the previous conduct of the Federal RepubIic of Germany
that could be interpreted asa legal cornmitment to accept the equidistance
method in the delimitation of the continental shelf towards its neighbours.
All this does not mean that the Federal Republic of Germany does not
consider the equidistance method as an acceptable solution in other geographic
situations. As a matter of fact, the Federal Republic has applied, in agreement
with its neighbours, the equidistance rnethod in the Baltic Sea in the deter-
mination to the delimitation of the continental shelf betweenDenrnark and the
Federal Republic in the Baltic Sea. The Federal Republic of Germany would
readily accept the application of the equidistance rnethod if the equidistance
method would lead to an equitable apportionment of the continental shelf
areas between the two States. 1 would even go so far to Say that in al1cases
where the parties have to agree on a boundary line, that in al1those cases the
agreement stands under the higher over-riding obligation to accepa settlement
that is equitable to both sides.
But asthe application of the equidistance method doesnot Ieadtoan equitable
apportionment, and does not aliocate an equitabIe share of the continental
shelf to the Federal Republic of Germany, 1submit that there is no obligation
under international law to accept sucha boundary.
That, Mr. President, concludes the first part of my address, which should
show that a State, and in particularthe Federal Republic of Germany, is under
no obligation to accept the equidistance method as long as it is not established
either by agreement or by decision of this Court that the equidistance method is
really equitableand givesthe Federal Republic of Gerrnany an equitable share
of the continental shelf that has to be divided up between the Parties.In the
next part of my address 1will then approach what is, I think, the decisiveand
principal question of this case-whether or not the equidistance method offers
an equitable apportionment of the continental shelf between the Parties.
The Court rose ut 5.15p.m. ARGUMENT OF PROFESSORJAENICKE
SECOND PU13LIC HlEARlNG (24 X 68, 10 a.m.)
Pveseizt[Seehearing of 23 X 68.1
te PRÉSIDENT: Aujourd'hui, 24 octobre 1968,se célébrela Journée des
Nations Unies. Il y a en effetvingt-trois irnsque la Charte desNations Unies est
entréeen vigueur. La Cour, organe judiciaire principal de l'organisation des
Nations Unies,dont leStatutfait partie intégrantedelaCharte, tient As'associer
a cette célébration.Elle demeure profondémentconsciente du rôle qui lui a été
imparti au sein de I'Organisiitionet qui est de contribuer ii l'affermissementde
la paix par le règlementjudiciaire des différends.
La Cour pense que la me:illeureficon de commémorercet anniversaire est
d'exprimer ses vŒuxpour que les nobles principes de la Charte atteignent
aussi vite que possible leur plein accomplissement.
Professor JAENICKE: Eleforeturniiig to the second part of my address
T should go back to one point 1 mentioned yesterday. I announced that we
would produce for demonstration purposes a map showing some particular
situation, showing the effect which the configuration of the coast has on the
direction of the equidistance line iisdrawn for a boundary betweencountries
lying adjacent to one another, a so-called lateraI boundary. I mentioned that a
very striking example of how much the equidistance line diverts the boundary
before the.coast of another State is tactual geographical situation before the
coasts of the Dominican Republic and Haïti. Thismap (seep. 28infra)has been
distributed this morning,to the Mernbers of the Court, 1suppose, and to the
Parties.
This map, which ishere in larger dimensions, showsthe Dominican Republic
on the right sideand Haïti on the left side. The general direction of the coast is
approximately parallel to this line, so that one would like to Saythat al1the
continental shelf lying north of eitht:r the .Dominican Republic or Haïti could
be called the naturalcontiniiation of their territories intsea.eThe fact that
the coast of the Dominicar Repub'licprojects here for some miles causes a
diversion of the equidistance:lineto quite a considerabIe extent. Theseare both
equidistance lineson this rnap, the one taking into account the smallislands Los
Siete-Hermanos, but we thciught thiit as we are not concerned here with the
island problem we should leave that out just for demonstration purposes, and
we have constructed another equidistance line which does not take account of
those islands, as if those islands were rlot there. Even then, the equidistance
line-and that iswhat wewant to show--diverts to a considerable extent to this
left side. Al1this is of course hypothesis becauseup to now no continental shelf
boundary between these twcicountries has been defined.
1 further announced thai: we wouId produce a geometrical diagram (see
p.29 infra)which showsdiag:rammaticallythe impact of the effect, I rnight cal1
it in short the "diversion effect", of the projecting part of the coast of the
neighbouring State, so that!/o u ight judge how much even a small projecting
point diverts the equidistarce line 'befcirethe coast of the other State. The
farther you gointo the seathe more tlie boundary isdivertefrom thecoast and,
more important, the more aresisincl.udedinthis diversioneffect.This diagram
also hasbeen distributed this rnorning to the Members of the Couas wellas to
the Parties, and it is this diagram that needs a little bit of explanation.
This is the geometrical construction of equidistance lines on the fo1IowingNORTH SEA CONTINENTAL SHELFARGUMENT OF I~ROFESSORJAENICKE 2930 NORTH SEA CONTINENTAL SHELF
hypothesis. The hypothesis is that the coastline is quite straight and the general
direction of the coast is like this. Here, on the hypothetical line-does not
rnatter whether or not the part projecting from the neighbouring coast is here
ora little bit farther off-the effecton the boundary willbe quite the same. The
effectwillbe less marked the farther off the projecting point is from the hypo-
thetical line 'than it is here. Now here in this casewehave made the hypothesis
that the coast of the neighbouring State at this point projects 1 kilometre to-
wards the sea, or 2 or 3 kilometres, and so on. We have only made here five
hypotheses.
The ikst is I kilometre projecting towards the sea, the second2 kilometres,
3,4 and 5, and in each case the boundary line if constructed on the principle of
equidistance willbe diverted to the right side. You willseethat evena projection
of 1kilometre produces the effectshown by the linewhichis drawn asa through
line, while the dotted Iine on the far right shows the effect of the projecting
point which is 5 kilometres more towards the sea. And then you can just judge
here that, say, in a distance of 50kilometres offthe co1skilometre projection
of the neighbouring coast towards the sea causes a "diversion effect" of
10 kilometres. Within a distance of 100 kilometres the diversion effect of
1 kilometre is more than IO kilometres. If there is a projection to the sea of
only 5kilometres the diversion in a distance from the coast of 100kilometres is
already, as you see, 30 kilometres. That means that within 100 kilometres
distance from the projecting point of the coast of.the neighbouring State which
projects- only 5 kilometres more towards the sea than the coast of the other
State,there is a "diversion effect" of 30 kilornetres. And the farther you go on
the more area will be afïected thereby.
That iswhat wewanted to demonstrate, the "diversion effect" caused when a
lateral boundary is constructed on the equidistance line. 1might corne back
perhaps to a point whichwementioned in the written pleadings,where we made
a distinction betweenlateral boundaries and boundaries betweenopposite coasts,
1would like to make clear that we are not of opinion that there is a different
legal régimeunder the Continental Shelf Convention on lateral and opposite
boundaries, but what we wanted to Say is that because of such "diversion
effects" more lateral boundaries are afFectedthereby, because the configuration
of the coastline normally is such that the coastline is nota straight line but
either the one or the other coast is projecting a little bit more sea,so that
in manycaseslateral boundaries, if constructed on the equidistance line, donot
yieId so equitable a result as perhaps a median line constructed between
opposite coasts.
1 may add that between opposite coasts islands produce an equivalent effect,
distortingthe equal apportionment betweenthe two States. It isnot1would Say,
a "diversion'effect"; it is more a "roll-back effect", ora "push-off effect",
because an equidistance line between the two countries, if an island liesbetween
the two coasts, willat this point be pushed a little bit more to the other side;
how much depends on the situation of the island.
That is, Mr. President, what 1 wanted to say in addition to what 1 had
explained yesterday. If it is asked of one party that the other party should
accept the equidistance line as a boundary, these effects would have to be
scnitinized by both parties and they certainly were. One cannot expecta State
wherethere is a "diversion effect" on its boundary to a considerable extent, to
regard sucha boundaryline asequitable; there should then befound a correction
to this linin the negotiations between the parties which neutralizes this effect.
That is just what, under the régimeof the Continental Shelf Convention, the
special circumstances clause is supposed to do. ARGUMENT OF I'ROFESSOR JAENICKE 31
That concludes my fist part coverii~gthe question under what circumstances
a State is under obligation to accept the equidistance line as a boundary.
Now 1am approaching the second part of myaddress which is devoted to the
question-which 1think is irideedthe:principal question in Ourcase. Does the
equidistance method, under the circtimstances of the case, offer an equitable
apportionment of the continental shelf betweenthe Parties? Onlyif thisquestion
were answered in the affirmalive the Federal Republic might be under a legal
obligation to accept the equidistance method as a basis forits continental shelf
boundaries.
The Kingdom of Denmark and the Kingdom of the Netherlands seem to
deny the relevance of this question--t he question whether the equidistance
boundary wouldeffectuate ail equitable apportionment between the Parties. In
their viewthe equitableness of the shares allocated to each Party by the equidis-
tance method should be no pre-condilion for the application of this method. If
1 understand some passages in their pleadings correctly, they go so far as to
. Say that the equidistance msthod is equitable pev se,The size.of the shares
resulting from its application is irrelevant-so they Say.This is, in any case, the
conclusion which must be drawn from the following passages which 1found
in paragraph 24, of their Cornmon Itejriinder, 1,page466. This passagereads :
"the equidistance principle in sea areas .. .excludes considerations of com-
parative surface shares" and, more generally, they assert in paragraph 116,at
page 524:
"In international law the rulei;governing the determination of.bound-'
aries do not start from the premiss chat there is an area of landor sea or
seabed to be distributed on the basis ofshares to be allotted by reference
to some criterion of proportiori. . . . In maritime areas, moreover, the
fundamental principle for determinirig the title ofacoastal State to extend
its sovereignty over any given arcas iç the adjacency and appurtenance of
those areas to its own coasts rather than to the coasts of any other State."
If 1understand that correctly, here again the Kingdom of Denmark and the
Kingdom of the Netherfands return to their favourite theory that the only
relevant criterion for the alloc:ationofareas of thecontinental shelfto one or the
other State is distance frorn some point of the coast. On this basis they claim
that the equidistance method, which is nothing but a geometrical technique to
draw the boundary in accordance with this criterion, therefore isautomatically
equitable pev se.
1have already shown eariier that this ttieorycannot be accepted. The concept
of the continental shelf doe:; not imply that any area nearer to some single
point or Say, a small strip, of the coast of one State, would autoniatically,
without further appreciation of the effectsit would have, fa11under the sover-
eignty of that State becauseornearness tcisomepoint or somestrip of the coast.
Thiscannot beso because distance frcimasinglepoint within a small part of the
coast and the projecting partof the coast does not necessarilyprove a sufficient
geographical connection with that partiçular coast in general. It is just for the
purpose, as 1 wanted to show before, that because of the diversion effect a
projectingpart of the coast of the neig:hbouringState has on the direction of the
equidistanceline, it cannot bosaid tha.tmeredistance fromthat projecting point
is already proof of the solid geographical connection with the coasts of that
State which isthe necessary ~:eographical and legal basis for claiming that these
areas are part of the continental shelf O€that State. This does not mean that
distance may not normally dlsterminethe appurtenance of amaritime area to a
particular coast; in the vicinity of the coast this system is normally applicable.32 NORTH SEA CONTINEN~AL SHELF
Further on, however, this system of allocating areas to the one or the other
State does not work.
To conclude this point, mere distance from a coast cannot be a safe criterion
of the equitableness of the allocation ofa continental shelf area to that parti-
cular coast so that the equidistance method cannot be regarded as equitable
perse, it can only beso if the geographical circumstances and the configuration
of the coast are such thatno "diversion effect" occurs which would make the
equidistance Iine aIlocating areas to the one State which naturally would
belong to the other State.
In opposition to the theory of Our opponents, the Federal Republic of
Germany maintains that the delimitation of the continental shelf, where two
or more States are adjacent to the same continental shelf, is governed by the
principle that each State should get an equitabIe share and that therefore a
boundary, whether determined by application of the equidistance method or
otherwise, need not be accepted by the other Party if it is not in harmony with
that principle.
The application of the principle that each of the adjacent States shall be
entitled to a just and equitable share is nota mere reference to the concept of
generaljustice. It goeswithout sayingthat a principle or rule of Iawwhich does
not merelyservethe purpose of formal or technical expediencybut whichshould
govern the allocation of extensivemaritime areas with great potential resources,
should be framed, interpreted and applied in harmony with the concept of
generaljustice which isthe indispensable basis of every Iegalorder. That isnot
the only thing that is meant by the principle of the just and equitable share,
becausethat principle contains more legalsubstance than such amere reference
to the concept of general justice. It ia principle of substantive law because it
directs the States which are concerned with the delimitation of their respective
shares in the continental shelf to seek and apply criteria which under the given
geographical situation are pertinent to an equitable apportionment of that
continental shelf arnong those States.
1willnot go deeper into the question whether or not the principle of the just
and equitable share is a principle of general application. In myview, it is such a
principle. Ttisan over-riding principle generally recognizedin legal systems; a
principle which governs the distribution of wealth, resources and potentialities
amongpersonsentitled to the same if the legislator has not made a specificrule
for that purpose. For the case before us, however,it may be sufficientto realize
that this principle of the just and equitable share has been recognized by
State practice and by leamed opinion aspertinent to the delimitation of the
continental shelf between twoor more States. In this respect, 1refer to what we
have said as to the principle of the just and equitable share and its application
by States to the delimitation of the continental shelf, in Our Memorial and in
our Reply.
The opponents have attacked tbis concept by saying that the delimitation of
the continental shelfharsnothing at al1to do with thedistribution or partitioning
of areas, but that it was a mere extension of sovereignty in space. In reply to
this 1would say the following. If States adjacent to the sarne continental shelf
extend their jurisdiction over the continental shelf before their coasts, thiis
not merely an extension of sovereignty in space, what is involved is rather a
partitioning of the potential resources ofa limited area lying between the ad-
jacent States. If you wouldcare to look at that map 'behind me, youwilleasily
' Map exhibitedin the Court room. For a similar map seethe map in the pocket
insidethe back cover of Volume 1(Annex 16 to theDanish Counter-Mernorial). ARGUMENT OF 'PROFESSORJAENICKE 33
perceivethat the delimitatiori of the c~wtinentalshelfdecideson the distribution
or partition of the potential :cesource:;of theNorth Sea. Nobody candeny this.
One cannot, as the Kingdom of Denmark and the Kingdom of the Nether-
lands do, regard such an act as a,me.regeographical extension of the realm of
sovereignty of a State, without rega1.dto the fact that by this operation large
areas with potential resourc,es,whicli previously were no man's property, are
now allocated to the one or to the o:therState.
1 should wam against the:recognition of the theory that mere propinquity
determines titIeto the continental shelf areas before the coast. What con-
sequences such an approacli might have for the further development of the
exploitation of the resource:i of the sea has been drastically dernonstrated by
the rnap in our Memorial, 1,betwee:npages 66-67. This rnap shows the parti-
tioning of the Atlantic Ocean arnong the adjacent States if each of them could
claim title to the areas which are nearer to some point of its coast than to any
other coast.
At this point I rnust draw attention to what one might cal1some minor in-
correctness in this map. This rnap wa;drawn on a large scalefor dernonstration
purposes only, and thus it happencd that some small islands were thereby
overlooked. In drawing up this rnap the tiny islands of St. Pierre and Miquelon
off the Newfoundland coasi:were u:nfortunately neglected, but this doeç not
affect the informative nature of this map. It,could however be thought that
perhaps by leaving out these islands we might have taken sides in the already
'known dispute between Canada and France as to whether or not, and to what
extent, these islands could 1a.yclaim to a continental shelf of thoan. So, to
beneutral in thiscase, wehavemadeasecond versionofthat rnap(seep. 34infa)
taking into account the islands of Si. Pierre and Miquelon, this new version
of the rnap was distributed this rnonling to the Mernbersof the Court and to
the Parties. You will find tbat the islands of St. Pierre and Miquelon, which
belong to France, do now appear in the new map. That does not change the
general pattern of the parti~ioning of the ocean on equidistance lines, but 1
wanted to make sure that ncithing in the pleadings of the Federal RepubIic of
Germany in this case should be take:ûas an opinion on this question which is
in dispute between Canada and France.
Now, unfortunately, the partitioning of oceans isno longera merehypothesis.
The progress of modem technology has made it possible to exploit the sea at
greater depths. Since the Continental Shelf Convention defines the outer limit
of the continental shelfin terms of ex]>loitability,as you are wellaware, wemay
soon beconfronted with clairnsfrom i:oa?talStates to large areas of the Atlantic
Ocean on the basis of equidistar~ce,i,e., on the basis that al1these large areas
are nearer to their coasts than to anjfother coast.
This is not mere science fiction which we have invented to reduce the equi-
distance method ad absurdulrniI.t is Irreal danger, the existence of u~hichhas
been borne out by the fact that org,anizations and institutions, including the
United Nations, have taken up the ~irohlemof deep-sea mining, as the Court
is very well aware.
It is perhaps interesting to note thnt a mapsimilar to ours was produced at
the hearings of the Foreign .4ffaairsCornmittee in the United States Congress,
when the issue of deep ocean sesources was discussed. This rnap shows the
distribution and partitioning: of the ,4tlantiOcean arnong States, shouId the
principle of eqriidistance be applied. ïhis rnap is to be found in a document of
the 9th Congress' Fiist Session, doc~imentHouse Report 999, at pages 88-89,
If the Court would liketo have copies ofit; we willbe prepared, Mr. President,
to supply you with copies for your deliberations, if it is not available in the NORTH SEACONTINENTALSHELF
CANADA
ocean ARGUMENT OF I'ROFESSOR JAENICKE 35
Peace Palace. It is for you to decidewhether you think it is worth whileto have
this map.
Now there seems to be, aiid I think we ali agree, an overwhelming opinion
that such a partitioning of the oceans sliould not take place, and that the re-
sources of the oceans should be avai1;iblefor the benefit ofmankind in general,
and not for the benefit of ju:;t one State which happened to be nearer to these
extensive and profitable areas than aiiy other State. May 1 quote the following
passages from a report drawa up by the Deep Sea Mining Comrnittee of the
International Law Ass0ciatic.nsubmii:tedto the Conferenceof the International
Law Association at Buenos Aires in 1968. I shall quote from page 4:
"In case exploitation wereto tecorne independent from any depth what-
soever and the definitioriof Article 1 of the Convention on the Continental
Shelfwerefollowedconsistently,the consequenceswould bethat the oceans
would have to be divided betweenthe coastal States. Various solutions are
possible, depending on whether (ornot islands are taken into account ..."
We cm see from this map what Iiuge areas groups of islands, such as the
Azores and others, couIddaim astheir continental shelf.This isjustan observa-
tion on rny part, and 1shall now proceed with the quotation:
". ..and whether the principle of equidistance or any other criterion for
delimitation were to be .adopted.Partitioning of the large oceans in parti-
cular will Iead to a disproportionately privileged position for the coastal
States. Thechoice ofthe basison which thepartition willhaveto take place
may seriously hamper ihe institutitin of deep-sea mining regime. An ar-
rangement whereby exclusiverilfits to the ocean bed and subsoil are ac-
corded to a group of SiatesIoczitedon a particular continent would only
shift the problem of partition and would notoffersufficientguarantee of a
permanent solution either."
Such an unfortunate development of the law of deep-sea mining, however,
could, in our view,be stopped much casier if the delimitation of the continental
shelf areas would not be determined solely by the geometrical principle of
distance from the coast, but also witli due regard to the material consequences
such a delimitation would have on the allocation of such large areas with its
enormous potential resources. Therelbre mere propinquity to the coast should
not be regarded as sufficienttitle to the resources of the sea under international
law.
1am sure that the Court will be aivari: of the impact that the recognition of
such a title based on mere propiniquitywould have on the deialopment of the
law of the sea in this field. 1think I shoiild recall in this connection tl.iatit was
not the idea of propinquity which had inspired the founders of the principle of
equidistance to introduce it into the law of the sea. What they had in minwas
rather to use it as a better method of quitable apportionment. The equidistance
rnethod was not regarded as a principle equitablepese, but rather asamethod
for achieving a more precist: result in allocating to each party an equaI share
of the waters betweenthem. For this 1may quote Mr. Boggs,one of the leading
experts on maritime boundaries, who was mainly responsible for the develop-
ment of the equidistance method, anciwho wasalso a member of the cornmittee
of experts which recommended this method to the International Law Com-
mission. His well-known treitise on international boundaries, which was pub-
Iished in 1940,treats the eqilidistance method-whicb he had first expounded
and elaborated in this treatise-asa kmtterdeviceto-drawthe so-callecl"middle
Iine". He Stateson page 179of his book that the division into two equal areas36 NORTH SEA CONTINENTAL SHELF
seerned to him to be an important element of the equidistance principle. Thus
from the beginning the equidistance method had been introduced prirnarily
as a method to achieve a more equitableapportionment and not rnerely as an
expression of the alleged principle of propinquity.
So much for the assertion of our opponentsthat the effectsresulting from the
application of the equidistance method should be regarded asirrelevant.
As our legal position is that the application of the equidistance method is
dependent on the equitableness of the shares allocated thereby to each of the
States, what then are the critena that determine the equitableness of the ap-
portionment effected by the application of the equidistancemethod in the case
before us. Here I approach the most difficultissue, which will arise everywhere
where the equitableness of an apportionmenthas to bejudged.
We have proposed several criteria in our written pleadings and in this case 1
might refer to al1that has been said in this respect; especially 1reftothe so-
called coastal front and sector approach which we have proposed as an ap-
propriate method for the appreciation of the equitableness of the apportion-
ment in the case before us, Le., in the specialcase of the partitioning of the
south-eastern sector of the North Sea continental shelf.
The Kingdom ofDenmark and the Kingdom of theNetherlands havelaunched
a bitter attack on this coastal front and sector approach. They have denounced
itas a novel invention for the purpose of our case which, as they say in para-
graph 26 of their Cornmon Rejoinder, 1,pages 468 and 469: "moves out of the
realm of existing rules and principles of international law into tfieldof arbi-
trary constructions" and "has no bais whatever either in geography or in law".
Now we have already said something in reply to these accusations and in
addition to what we have said in Our written pleadings with respect to these
criteria 1should-I think this is very important-make it quite clear that these
critena have been deveIopedwith due regard to the speciallegal and geographi-
cal situation in the North Sea. Please allow me to explain this in more de-
tail.
First, 1 have to reject the accusation that we were inviting the Court to
recognize such criteria as principies or rules of international law which should
govern the delimitations of the continental shelf. In Our written pleadingswe
have made itplain frorn the beginning that criteria of this sort were not prin-
ciples or rules of general application. We regard them only as a standard of
evaluation as to what method of deIimitation would be equitable undei the
specialgeographical situation in the North Sea. We regard them as astandard
of evaluation pertaining only to that particular situation. That this was the
real meaning of the coastal front and sector concept could not be overlooked
if one reads lit(d) of our conclusions inour Reply, 1,p. 433, where we have
said:
"The breadth of the coastal front of each State facing the North Sea is
an appropriate objective standard of evaluation [Istress these words] with
respect to the equitableness oa proposed boundary."
If the Court would follow our thoughts in applying this standard of evaluation
to the delimitation of the continental shelf of the North Sea, the Court would
not, arOuropponents seemto intimate, apply a rule of law hitherto unknown
in international law; they would only appreciate the equitableness and appli-
cabiIityof the equidistance boundary in that particular geographical situation.
If,as 1 hope, I have made this clear, 1may be ina better position to explain
that the apportionment of the continental shelf by sectors, on the basis of the
coastal front of each State, is a natural consequence of the application of the ARGUMENT OF PROFESSORJAENICKE 37
continental sheIf concept to the special geographical situation prevailing be
tween the Parties in the North Sea.
Criteria for the appreciati~n of the equitableness of apportionment among
the Parties adjacent to the same conti.nentalshelf need not and sometimes can-
not be of general application in al1gi:ographical situations. Geographical con-
figurations differ frorn each other arid each situation may cal1for a new ap-
preciation of special factors that havt ta be taken into accountTtis therefore
not surprisingthat the standard whic:h i:called for in the concrete case of the
North Sea between the Parties rnay have no precedents in other parts of the
world. Therefore the absence of such precedents isnotan argument and cannot
be an argument against the proprietg'of this standard.
1shall now try to develop the standard for an equitable delimitation of the
continental shelf betweenth<:Parties step by step.
The first fact which we have to take into account is the legaIsituation already
existent as to the delimitation of th#:North Sea continental shelf. The con-
tinental shelf oftheNorth Sea,1 woultiliketo stressthis point, is already divided
up into three sector-like parts or slices, if you like to say so, the British sector,
which as you will see, is a rather large sector, fortunately for Great Britain,
the Norwegian sectorand the:remainingsectorcomprisingthe Danish, German
and the Netherlandsparts. Tliisgeneriilpattern of delimitation has alreadybeen
agreed to by treaties between Great Britain, the NetherIands, Denmark and
Norway. The Federal Republic of Germany has also taken no objection to this
divisionof the North Seacontinental r:helfinto those sectorsas have beenagreed
on in the boundary treaties I have just inentioned between these States. Only
the sector which comprises the parts of Denmark, the Federal Republic of
Gennany and of the Netherliindshas stilt to be divided up between those three
Parties.There is no agreement as yet, as to the division, the partitioning, of the
sector-like partand it is just that qiiestion which is before you. Such is the
problem of apportionment as is posed now on the existing legaIsituation in the
North Sea. We cannot overlook thefact that wealready have thesethree sectors
and the question rernains how shoultl WC equitably divide the third remaining
sector in the south-eastern part of thi: North Sea. .
The second fact we have to take iiito account isthe geographical situation
in that part of theNorth Seawherethe reinaining sector which has to be divided
up between the Parties issituiited. Oui:opponents cannot deny the geographical
fact that this part of the North Sea is roughly circular-surrounded by several
States. Besides, the exact shiipe of tliis enclosed part of the continental shelf
is not material. It does not matter whether it is quadratic, rectangular or exactly
circular.Nor is the configuration of the coast line material in this respect. The
undeniable geographical fact remains that in this part of the North Sea several
States surround that partof the North Sea as if they weresitting arouncla table,
and perhaps 1might add, waii:ingto ge:ta pieceof the cake whichisto bedivided
up between the parties. Going back to the real essence of the geographical
situation, the undeniable geographica.1fact is that the parts of the continental
shelf of each State surroundiog that continental shelf are converging into each
other.The convergence of the:contineiztalshelfof ail these partieand in partic-
ular of the three Parties whichare before you at the moment in this case, calls
for special criteria in the appreciation of the equitableness of a partition of this
last undivided sector among thern.
In convergingthe continental shelves of Denmark, of the Federal Republic
of Gemany and of theNetherlands, li:kethethree big sectors, formalso by mere
geography sector-like slices with the coastal front of each State as a basis.
Therefore, 1 think that division by sectorhm not been, as our opponents Say,38 NORTH SEA CONTINENTAL SHELF
arbitrarily engrafted uponthat part of the North Sea; but it is rather a natural
consequence of the geography in that part of the world. 1 may add, if 1speak
here of sectors or sector-like slices1do not rnean that such sectors must be true
sectors in the geornetrical sense. However, the convergence of the continental
shelves into each other can be best described by the sector concept. Looking
at the map of the North Sea and taking the third sector comprising the con-
tinental shelves of Denmark, of the Federal Republic and of the Netherlands
as a whole, it seemsnatural and equitable in my view, that the division of this
still undivided sector follows the general sector-like pattern of division of the
North Sea.
The boundaries drawn by application of the equidistance method within this
sector would allocate slices of the continental shelf to each of the three Parties
which do not conform to that sectoral concept. The division would be as
shown here on the big rnap before you. 1sthis equitable or not? The Kingdom
of Denmark and the Kingdom of the Netherlands Sayit is; the Federal Republic
of Germany saysit isnot. 1sit possibleto developa criterion which mayprovide
us with a standard to dccide this?
Themost reliable basifsor the deveIopmentof an appropriate criterion would,
in my view, be the legal basis of the title of the coastal State to the continental
shelf before its coast. We should start from that because the rights to the con-
tinental shelf have to be considered on this concept.
Fortunately, the Parties are in agreement as to the bais of this title. Ttis the
doctrine that the continental shelfis the natural continuation into the sea of the
territory of each coastal State. We absolutely agree with the statement con-
tained in the Common Rejoinder of the Kingdom of Denmark and the Kingdom
of the Netherlands that there must be a solid geographical connection between
the territory of the coastal State and the areas that rnay be justly cIairned to
constitute such a natural continuation of its territory into the sea.
The Parties differ, however, as to what are the criteria which, inharmony
with the doctrine, should determine whether a specificarea of the continental
shelf has tobe regarded asa natural continuation of the territory of the one or
of the other State adjacent to the same continental shelf.
There again we are confronted with the fundamentally different approach of
both Parties as to the criterion that should determine the title of each coastal
State to a specificcontinentai shelf area before its coast.
The Kingdom of Denmark and the Kingdom of the NetherIands say that
the propinquity from a singlepoint or some srnall part of the coast is sufficient
proof that a specific area has to be regarded as appertaining to its territory.
That is supposed to end the matter. This is practically equivalent to saying
that the construction of the boundary on equidistance determines its own
equitableness.
The Federal Republic is of the opinion that such an approach to the matter
cannot be rnaintained. We feel that we have already demonstrated amply
enough that propinquity to a singIepoint of the coast of a State cannot alone
determine the ailocation of extensive areas of the continental shelf to that
State. This is neither inherent in the concept of the continental shelf nor in
harmony with State practice, nor consistent with the history of Article 6 of the
Continental SheIf Convention. 1 need not repeat the arguments advanced
against such a theory, 1have brought them several times in my address already
as wellas in the Reply and in the Mernorial ofthe Federal Republic of Germany.
If you would care to look at the map showing the apportionment of the
North Sea continental shelf between Denmark, the FederaI Republic of Ger-
many and the Netherlands, as envisaged by our opponents, one might just ask ARGUMENT OF PROFESSOR JAENICKE 39
whether theareas betweenthcnorth-westernend point of the German share and
the middle of the North Sea where the other boundaries rneet, should really be
regarded as a natural continuation of the Danish or the Netherlands territory.
Would it not be likewise, if not more convincing, to regarü those areas as the
natural continuation of the German territory? The contention of the Kingdom
of Denmark and the Kingdom of thi: Netherlands that the smaller distance of
those areas to some part of the Danisli or Netherlands coast should decide
this issue is in contradiction with their own doctrine, according to which there
should be a solid connection between the territory of the State and the sub-
marine areas before those areas couId be regarded as the natural continuation
of its territory into the sea.
It may be interestinç for tlie Court to .knowthat the allocation of these areas
-1 refer to the areas around the vicinity of the iine stretching out from the
end point of our share to thi: middle of the North Sea where the other bound-
aries meet, which represent thousai~ds of square miles-their allocation to
Denmark or to the Netherlands respi:ctively,would be decided under the equi-
distance method by a differenceof distances of not more than 5 to 15 nautical
miles to the next point of th€:Germaii coast. If the Danish and the Netherlands
coastal areas, from which the distance under the equidistance rnethod is mea-
sured, were 15 nautical miles more distirnt from the middle of the North Sea
where the other boundaries meet, the German part would, under the equi-
distance rnethod, reach out 10 the middkeof the North Sea. And some 10,000
or more square miles would be allocztetl to Germany.
We have prepared a diagram, wkiichhas not yet ben distributed, which
shows mile by mile the impact of the distance from the coast on the allocation
of these areas to the one or the other side. The consequence we draw from this
isthat such small differencesindistance from each coast cannot be a convincing
proof that these areas must be regarciedas a natural and solid continuation of
one State's territory into the sea. Such a theory would afford minor differences
in the configuration of the coast of each of the three Partiean undue and in-
equitable influence on the allocation of extensive sea areas.
In short, it seems that distance friim the coast alone is notan appropriate
criterion to determine the equitableriess of some mode of partitioning where
the continental shelves of the coast:il States converge into the middle of an
enclosed continental shelf area.
The Court a$ournedfrorn 11.20 to 11.45am.
When I finishedjust a fewminutes ago 1referred to the question of what may
be considered the natural c13ntinuati:onof the State territory into the sea.In
view of the geographical situation where the continental shelves of the States
concerned converge into eac:hother, the Federal Republic takes the view that
in such a situation it is rather difficult, if not impossible, to Sayin terrns of
distance whether those arezs in the middle of an enclosed continental shelf
are rhe naiuwl continuation of the terrjtory of the one or the other State. .
While in the coastal belt it might b: ore appropriate to regard distance from
the coast as the criterion deceminin;: the appurtenance of certain areas to the
coast; farther awayfrom the coast, the distance from somepoint of the varying
coastline is not any more suited to prove convincingly the connection of such
areas with the one or the other State. That was the reason why we werelooking
for a better basis than mere distance to define into what direction and to what
extent an area within this continental shelf, an enclosed continental shelf,might40 NORTH SEA CONTINENTAL SHELF
beregardedas the so-callednatural continuation of the State'sterritory into the
sea.
We thought that the coastal front of each State facing the North Sea rnay
define better the direction and extent of the natural continuation of the State
territory into the cornmon continental shelf.
This criterion, the so-called coastal front, has nothing to do with baselines
used for the measurement of the territorial sea or the contiguous zone; any
criticisrn that it lacks foundation in the law and practice of States with respect
to the delimitation of such zones before the coast, is, it would seem, beside the
point. Our coastal front concept merely tries to define from what natural
geographic basis the territory of the coastal Statescontinues or extends into the
cornmon continental shelf.
From that basis itmaybe possible to dehe better what areas of the con-
tinental shelf should be regarded as appertaining to the one or the other state.
The coastal front with which each coastal State faces the common continental
shelf allowsa determination into what direction the continental shelves of each
North Sea State converge intoeachother.The direction would then be geomet-
rically, if 1rnight also go into a geornetrîcal abstraction, defined by the perpen-
dicular line, perpendiculu on the coastaI front. This allows the determination
of the point where the continental shelves converge into each other. The
breadth of each coastal front allows, on the other hand, to elevate the relative
mass of submarine area each Statecontributesto the comrnon continental shelf.
Therefore, the Federal RepubIic regards the sectoral division on the basis of
the coastal front of each State, with sector-like slicesproportionate in size to
the relative breadth of the coastal front of each State, as the rnost equitable
apportionment under the very special circumstances of this particular geo-
graphical situation, in a situation of converging continental shelves.
As an illustration 1refer to the diagrams in figures 1 to 5 in our Reply, 1,
pages 427-430. These diagrarns show that the coastal front concept is solely
designedto definewhat mayberegarded asthe natural extension oreach State's
territory into the enclosed continental shelf. If you look at these figures you
will see that if you face the sea frorn the coast the natural continuation of the
coast into the sea willbenaturally definedby a lineperpendicular on the coastal
front and it is, of course, the purpose of the concept of the coastal front to
judge frorn which buis the temtory extends into the sea. 1would like to apply
these abstract criteria to the actuaI geographical situation in the North Sea
between the Parties,
Here we have first to define what is the coastal front of each of the three
States which want to divide up this south-eastern sector between them. 1might
in this regard refer to the map reproduced in the Common Rejoinder, 1,
page 470, where our opponents try a Iittle bit to reduce to ad absurdum our
coastal front concept; but 1 think it is somehow rather informative on what
might be regarded as the coastal front from which the territory extends into the
North Sea,
However,not to bernisunderstood, continuation of a State'sterriton into the
seais here understood in the juridical sense, underlying the concept of the
continental shelf; of course it does not mean the true geological continuation.
Ifwe would go into this field and say what is geologicaIlythe natural contin-
uation of the continent's territory into the sea, then probably Denmark would
get no continental shelfat al1in thispart of theNorth Seabecausethe North Sea
descends to the ocean frorn the south to the north. But this, of course, isnot
meant here. The question is how to divide the south-eastern sector equitably
between the three States. And as the partitioning that has already taken place ARGUMENT OF PROPESSORJAENICKE 41
here provides us with some sort of ;icentre of the North Sea, we can more
easily Saywhat should be, and what is, tlie coastal front of each of these States
from which the continental shelf extends to this centre.
I would Saythat it would be fair riot to regard asthe coastal front what is
shown in figureA of the Cornmon Rejoinder. 1would rather Saythat the coastal
front of Denmark facing the North Sea is a line which is roughty to the north
from the end point of the land froritier between Denmark and the Federal
Republic, while the coastal fiont of our territory which extends in the North
Sea could best bedefined asa line between the end point of this land frontier
between Denmark and the Federal Ilepublic, and the end point of the land
frontier between the Nether1:xnds anclthe Federal Repubiic. This straight line
just says that the territory of Germany extends from this basis, or from behind,
it doesn't matter, into the Worth Sea. As to the Netherlands coastal front,
1wouldn't beso unfair as to Saythat the coastal front goes down to the south-
West.1would saythat what nlust bercgarded as the coastal front is a line from
the end point of the land frontier bt:tween the Netherlands and the Federal
Republic to the point where the North Sea gets smaller and gradually passes
into the Channel. 1would say-that the coastal front goesto the point where the
equidistance Iine between Great Britain and the Netherlands makes a bend to
the West because this point approximately marks the end of the coastal front
with which the Netherlands face the North Sea. But you rnay take what you
like. 1don't mind whether you take some other line as the coastal front, that
would be more favourable to us. I have taken as the coastal front that which is
the leastfavourable to us.lfyoutake these coastal fronts as the basis, you would
then see that if you erect a line perp<:ndicularto each of these coastal fronts,
they converge approximately in the centre where the other boundaries already
meet. That is of course not ;rdelimitation of boundanes under a geometncd
method. It isjust trying to sa.ywhat couldbe approximately regarded as tobe
the natural continuation of these Siates' territories into the sea, how they
convergeinto each other and what part would be regarded as belonging to the
continental shelf of one or the other, as being the extension of their territories
into the sea.
It does seem, we respectfully subm~it,to be obvious that a sector-like part
reaching out to the centre where the continental shelf sectors of Great Britain,
Nonvay, Denmark and the Netherlands already rneetwould better be regarded
asthe natural continuation of Germ.my's territory into the continental shelf
than the small size enclosed within the equidistance boundaries.
Our opponents say that it is inadmissible to infer from the relative length of
the coastal front the relative cizeof each share, since the Iength of the coastline
could not convey any titIe to a specific size of the share. Here again 1 must
stress the fact that we do not want to propose arule of genera1applicability to
the effectthat any State in any geographical situation may claim a share of the
continental shelf equivalent in size to the Iength of its Coast.We only suggest
that in this particular geographical situation, where the continental sheIvesof
Statesconstitute, byvirtue of i.heirgeojgaphy, convergingsectors,the breadth of
the coastal front would be a proper standard of the size of the share each
State should get if an equitable apportionment were to be achieved. In a
sectoral division the relative tireadof the baseline determinesthe relative size
of the share each State woultl get und.ersuch an apportionment.
What we say with regard to the co;lstal front sector approach is this: under
the general pattern of sectoral division in the North Sea, which is somehow
dictated by geography, the continental shçlvesof al1three Parties converge into
each other in a direction which may 13esaid to be running towards the centre42 NORTH SEA CONTINENTAL SHELF
of the North Sea, where the other boundaries already meet, and that the basis
of these sectors determines the relative size of the shares.
Therefore we maintain that a sectoral division on the basis of the coastal
front of each State directed to the centre part of the North Sea is an appro-
priatestandard of evaluation, whether or not a proposed delimitation of the
continental shelf in that part of the North Sea is equitable. If we now compare
what part the Federai Republic of Germany would get under a delimitation
in accordance with the equidistance method, it is easily perceived that this part
falls far short of such an equitable apportionment, as 1have indicated. Con-
sequently, there is no obligation for the Federat Republic of Germany to
accept the equidistance method for the delimitation of the boundaries of its
continental shelf.
In their Common Rejoinder, the Kingdom of Denmark and the Kingdom of
the Netherlands ask whether they should provide for the augmentation of the
German share if that share is really inequitable. They ask, why should such
additional surface be provided by Denmark or the Netherlands rather than by
other countries adjacent to the North Sea, which perhaps have much more
continental shelf area available? And why should then only Germany receive
additional surface and not other countries adjacent to the North Sea? This
question is wrong in its approach to the matter.
The Federal Republic does not want to gain something from Denmark or
the Netherlands which rightfully belongs to them; the unilateral delimitation
by the Kingdom of Denmark and the Kingdom of the Netherlands by appli-
cation of the equidistance method isnot yet law, If the shareGermany could get
under this method of delimitation is not equitable, it is because Denmark and
the Netherlands would by this method gain more than they could justly expect
under the principle of equitable apportionment. The shape of their sectors, by
delimitation under the equidistance method, is only due to the configuration
of the coastline. Each of their coasts comprises parts which project towards the
centre of the North Sea and thereby divert the equidistance boundary into the
German sector. This speciaI "diversion effect" of projecting coastal parts is
shown diagrammaticallyin figure 5 in OurReply,1,page430.If you take figure5
you wilIseethat, for an observer facingthe centre of the North Sea,State A and
State C have their coastlines projectingtowards the middle of that sea-it isnot
the North Sea, it is a more abstract version of oui situation-and by a "di-
version effect" of the projecting parts under the application of the equidistance
method it happens that the continental shelf sector of State B is reduced to this
small part which is shaded in figure 5 on page 430.
As other North Sea States do not profit from the application of the equidis-
tance line at the expense of Germany, it seems logical as well as right that the
Federal Republic of Germany cannot ask these other States to reduce their
share in order to make the German share more equitable.
In view of the criteria which in Our opinion determines the inequitableness
of the apportionment of the continental shelf betweenthe Parties,1 respectfully
submit that the Kingdom of Denmark and the Kingdom of the Netherlands
cannot claim that the Federal Republic of Germany accepts the equidistance
method as an equitable boundary for the delimitation of its continental shelf,
It would then be for the Parties to agree on another boundary line which will
apportion a just and equitable share to each of the Parties.
After 1haveshown, 1 hope, that the partitioning of this south-eaçtern sector
of the North Sea between the three Parties is not equitable under the criteria
one might apply to this case, 1 could have concluded my arguments as to the
non-applicability of the equidistancemethod, because, as 1said yesterday, there ARGUITENTOF PROFESSOR JAENICKE 43
is no obligation under general internationa1 law to accept an equidistance line
which is not equitable.
However, the Kingdom of Denniark and the Kingdom of the Netherlands
have based their arguments cmthe theory that the so-calledequidistance-special
circumstances rule container! in Artide h of the Continental ShelfConvention
had acquired the force of general international law.
In the event the Court wcluldlike to look with some favour on this theory,
1fcelthat I must go onto show that a.lsounder Article 6 of the Convention, ifit
were applicable between the Parties, the FederaI Republic of Germany would
be under no obligation to accept the equidistance line asa boundary of its
continental shelfIn order to show this 1haveto go into the difficultquestion of
the interpretation of the spe(:iaIcircumstances clausein Article 6, paragraph 2,
of the Continental Shelf Corivention. Tnthis respect the differencebetween the
Parties is as wide as it possibly can be.
In their Common Rejoinder the Kingdom of Denmark and the Kiiigdom of
the Netherlands try to reduce the scijpe of application of the special circum-
stances ctause by such an extent that this i~terpretation, if it wereright, would
in effect bring about that tly the back-door the equidistance method would
again appear on the scene as the only rule. The arguments in support of this
interpretation are mainly coiitained in Chapter 3 of the Common Rejoinder, 1,
pages 526 et seq.1believethat 1havt:to comment on these arguments in some
detail.
The Kingdorn of Denmark and the Kingdom of the Netherlands seemto take
the position that it is a special privilt:geof the parties of the Contineiital Shelf
Convention, given to them by the Convention, to invoke the special circum-
stances clause in order to exclude the application of the equidistance inethod if
such circumstances are present. Should this mean that States whicli are not
parties to the Convention art:not allclwedto invoke such special circuinstances,
but have to accept the equitiistance boundary under any circumstances under
the hypothesis that the equidistance inethod had become customary or general
international Iaw?
1cannot see what else could bethe meaning of Submission NO.4 which the
Kingdom of Denmark and the Kingdam of the Netherlands have added in
their Common Rejoinder to their ~~re\.ioussubmissions. Submission No. 4
stipulates in effect that if the convention:ilregime is not applicable between the
Parties-
". ..the boundary is to be determined between the Parties on the basis of
the exclusiverights of each Party over the continental shelf adjacent to its
coast and of the principle that the boundary is to leaveto each Party every
point of the continental shelfwhjchtiesnearer to itscoast thantu the coast
of the other Party".
This however is nothing olse than another formulation of the equidistance
method, which wouldthen br the onIyrule applicable towards States which are
not parties to the Convention, because Submission No. 4 does not contain any
reference or exception to specialcircumsiances. If this werethe law, it would be
in flat contradiction to the di:velopmi:ntof the law on the continental shelf and
to the history of Article 6 (2) of the Corivention. One might even ask why the
Kingdom of Denmark and ihe Kingdom of the Netherlands have ratified the
Convention if they could have avoitled the invocation of the special circum-
stances exception by remaining outside the Convention.
The assertion that the eqiridistance method is the only rute between States
which are not parties to the Convention, lacks any foundation in the practice of44 NORTH SEA CONTINENTALSHELF
States. Such an assertion is even less understandable since the Kingdorn of
Denmark and the Kingdom of the Netherlands have taken great pains in their
written pleadings, in particular in their Common Rejoinder, to convince the
Court that, under general international law, it is not the equidistance method
pure and simple that had become a rule ofgeneral international law, but that it
was the so-called equidistance-special circumstancesrule which had become so.
If that would be so, also under general international law, any State could
invoke special circumstances excluding theapplication of the equidistance line.
1cannot seehow one could followtheir submission No. 4 which, in rnyview,
is inconsistent with this theory. 1 hope therefore that the Court will reject this
submission. 1 have dealt enough with this question and will now turn to the
more principal question which criteria wilI determine the interpretation of the
special circumstances clause,and 1have to comment on the criteria for inter-
pretation that have been advocated by the Kingdom of Denmark and the
Kingdorn of the Netherlands in their Comrnon Rejoinder. Briefly stated, the
criteria they have suggested for the application of the special circurnstances
clause are the following.
First criterion: the speciaI circumstances clause may only be invokedif the
correction is justified towards both States, to the one which gainas well as to
the one which loses by the correction (para. 123,of theCommon Rejoinder, 1,
p. 526).
Second criterion: the clause may not be invoked against "a State whose
continental shelf has a solid geographica1 connection with the territory of
that State ...constituting a natural continuation of the tenitory of the State"
(para. 125, of the Common Rejoinder, 1, p. 527).
ïhird criterion: the clause will only be applicable if some insignificant island
or comparable peninsulas justify other basepoints for the construction of the
equidistance line (paras. 126-128,of the Common Rejoinder, 1,pp. 527-528).
Fourth criterion: the clause will only allow corrections by using other base-
points for the construction of the equidistance line (para. 129, as well as
paras. 138-141of the Common Rejoinder, T,p. 528and pp. 531-532).
Taking dl these criteria together, which in the opinion of our opponents
should al1be observed simultaneously, one gains the impression that they are
calculated to reduce the scope of application to such an extent that, contrary to
the intention of the authors of Article 6, the equidistance line will practically
remain the only rule.
The only exception where,in the view of Ouropponents, a correction may be
permitted, not of the equidistance line, of course, but only of some basepoints
forthe construction of the lines,isthecase ofinsignificant islandsor comparable
peninsulas; what situations are envisagea in this respect rnay be seen from the
diagrams which appear, figures E, F and G, in the Common Rejoinder, 1,
pages 533-535-rather extreme situations which 1 have not yet found on the
maps. This minor concession for a correction of the strict apptication of the
equidistance method is the bare minimum which probably seemed indispens-
able in view of the commentary of the International Law Commission to its
draft Article 72, which later became Article 6, on the delimitation of the con-
tinental shelf, where islands were specificallymentioned as exarnplesjustifying
another boundary line.
The case of specialconfigurations of the coast, which in the cornmentary of
the International Law Commission was mentioned as the primary example
which wouId justify another boundary line, has completely disappeared from
the scene. Only certain peninsuIas of sharply projecting points, in themselves
insignificant,comparable to insignificant islands lyingbefore the coast, remain ARGUMENT OF PROFESSOR1AENICKE 45
as cases where a correction of the basepoints of the equidistance line is gener-
ousIy dlowed.
The observations as to the geographical situation in the North Sea seem to
indicate that in the views of.theopposing Parties, the resulting equidistance line
for the boundary of the Genman coritinental shelf, as is shown on this map, is
aiways considered as normal if it is constructed in conformity with the course
of the ordinas. coastline. The Danish and the Netherlands share arc normal,
and just because they follow the pririciplethat they comprise only areas which
are nearer to their coasts than to the German Coast.That is what they say with
respect to the normality of i:hesituation. .
What other coastal configurations, hsides the already mentioned insignifi-
cant, sharply projecting peninsulas, mity then ever justify another boundary
line?Ostensiblythere are noue. The allegation that the reduction of the scope of
application of the equidistance clause to insignifiant islands or insignificant
peninsulas is in harmony vvith the travaux préparatoiresof the Continental
ShelfConvention, is an assertion which, in my viewhas no foundation. I would
refer in this respect to the history clftlie special circurnstances clause in our
Memorial, paragraphs 50to .52,I,pages 53-56;paragraphs 68to 72,pages 65-74.
In addition to these observations, plhichare objections againstthe generalline
of interpretation of the special circurnstances clausein the Common Rejoinder,
the four criteriT mentionet! before deservespecial comment.
The criterion that the special circ~imstancesclause cannot be invoked if the
correction of the boundary iinot justifieciwith respect aoState whiclilosesby
the correction, is on its facea simple truism; 1 agree to what they Say, the
correction must aiso be equitable or just to the losing Party.
If reapportionment has to be made of the continental shelfamong the States
concerned, no-one woulddeny that it mtist beequitable to ai1States concerned.
Onfy those States which woi~ld bi:priviIegedby the application of the equidis-
tance method in gaining additional continental shelfareas, if compared with the
share they would get on an equitabkeapportionment, will have to satisfy the
claims of those States which, in contrast, would sufferan inequitable result by
the equidistance method.
In the case before us, tht: Kingdctm of Denmark and the Kingdom of the
Netherlands would, in our opinion, gain more continental shelf area by the
application of the equidistance methcidthan under an equitable apportionment,
that isan apportionment oii the lini:s 1 have shown before. The eqiiidistance
boundw can only be equitable or inequitable-it cannot be regarded inequi-
table to the Federal Republic of Germany, but equitable to the Patty on the
other side of the boundary.
While the first criterion, namely that the correction must be just to both
sides, seems to be acceptable on its face, it acquires quite another meaning
when combined with the second crr.terion. This criterion attempts to evolve
the theory that a State whose con?inental shelf boundary confornis to the
principle of propinquity, a propintluity as defined by the opposing Party,
always has just boundaries and will never be obliged to cede an inch of its
continental shelf to another State.
In the words of the Cominon Rej,~inder,the second criterion is formulated
as follows (para. 125,I, p. 527):
"... the 'special circurnstances' clause....cannot be applied against a
State whose continental shelf has a solid geographical connection withthe
territory of that State thereby c:ons,titutinga natural continuation of the
territory of the State in conformity with the general geographicalsituation46 NORTH SEA CONTINENTALSHELF
We could subscribe to that were it not for the fact that the Kingdom of
Denmark and the Kingdom of the Netherlands understand any area which is
nearer to some point of their coast than to any other State as being the natural
continuation of their territory, with the only exception, perhaps, that insignif-
icant islands or peninsulas might be disregarded if they were present here.
Bythat formula, the second criterion cornesdown to the simpleassertion that
the "special circumstances" clausecan never be invoked against a State whose
continental shelf houndaries conform to the principle of equidistance.
Such an interpretation of Article 6 deprives the special circumstances clause
of its real purpose, namely as an escape clause for those cases where the appli-
cation of the equidistance method would be inequitable and another more
equitable boundary has to be found.
The third criterion, which allows the only exception to the second criterion,
reduces the scope of application of the equidistance line to insignificant islands
or peninsulas. No other coastal configuration may justify a correction of the
equidisiance line. 1cannot find any indication in the work of the International
Law Commission or in the travaux prépuvafoiresof the 1958 Ceneva Con-
ference that such a narrow scope of application of the special circumstances
clause wasever envisaged by the authors of this clause.
The Committee of Experts which had recommended the equidistance rnethod
to the International Law Commission had done so with the express reseniation
that in a number of cases thisequidistance method may not lead toan equitable
solution. In that case they Say, such a solution should then be arrived at by
negotiation. It was in view of this reservation that the International Law
Commission adopted the special circumstances clause in order to make the
equidistance rnethod acceptable to the members of the Commission and to
provide for cases where the application of the equidistance line would leadto
hardship to one of the States concerned. In its commentary the Commission
eaid:
". ..provision for derartures necessitated must ke made by any ..."
1 stress this word"... by any exceptional configuration of the coast, as
well as the presence of islands or of navigable channels. This case may
arise fairly often so thai the rule adopted is fairly elastic".
There isno trace that the Commission wanted to confinethe application of the
special circumstances clause to such extraordinary examples of insignificant
islands or peninsulas given in the Common Rejoinder, 1, pages 533-535, or
that the reference to special configurations of the coast shouId be construed so
narrowly. The deliberations at the Geneva Conference do not shed any more
light on the interpretation of the clause. There is a remark by Mr. Kennedy
(the.United Kingdom Delegate), Oficiol Records of the Conference, Vol. VI,
page 93, in the discussion of the Fourth Committee of the Conference which
found the approval of Miss Whiteman (the United States Delegate), that
islands should be treated on their rnerits, and that very small islands or sand
caysshould in any case be negiected.But these werecertainly not thought to be
the only cases of special circumstances.
The long discussions anddeliberations on the special circumstances clause
can only be interpreted in the sensethat it was not possibleto definethe scopeof
application of the clause in more specific terms. The clause was deliberately
Ieftvague to cover al1cases wherethe exigenciesof an equitable apportionment
would require its application. In any event there was a desireto have an escape
clauseto avoidinequitable results bythe application oftheequidistancemethod.
1 now come to the fourth criterion. This stated that the cfause would only ARGUMENT OF PROFESSOR JAENICKE 47
allow a correction by using other base points for the construction of the
equidistance line.
1 think that the fourth criterion is nothing more than a consequence of the
narrow criterja before. In view of the fact that by criterion nurnber 3 only
insignificant islands or insignificant peninsuIas could justify correction of the
equidistance line, this naturally necessitates the neglecting of these islands or
peninsulas as base points, but will not necessitate another method for the
construction of the boundary Iine.
It is, however, not justified to Say that this may be the only manner of
removing ahardship caused by the strict application of the equidistance method.
Article 6, paragraph 2, says:
". . . In the absence of agreenieni:,and unless another boundary line is
justified by specialcircurnstancr:s,the boundary shall be determined ...by
the principle of equidiijtance..."
There is no hint in the wording of Article 6, paragraph2, that the only way
of making allowancesfor specialcircumstances wouldbeto changethe baseline.
If the authors of Article 6 Iiad wanied to limit the explication of the clause to
this effect, they would have statecl the same. On the contrary, the words:
". ..unless another boundary is jtistified by special circumstances" seern to
indicate rather that the alternative boundary need not be constructed as an
equidistance boundary.
Why didn't they say: if there are :;pecialcircumstances the boundary shouId
then be constructed on another basdine?
To conclude: 1 see no justification whatsoever for such a narrow interpre-
tation of the special circurnstances clauseas it is advocated by the Kingdom of
Denrnark and the Kingdomiof the Iqetherlands. 1 see no explanatio~ifor that,
unless one can surmise the purpose to escape from an objective evatuation of
the equitableness of the eqaidistancr: method inthe case before this Court.
Ifsuch a narrow interpretation, which must reduce the meaning of the clause
to practically nothing, wouid gain ground, that would result in the silent but
effectiveburial of the special circurnstances clauseand in the establishment of
the equidistance method as the only mle. Such a construction would seriousIy
hamper the development of'the Iaw of the continental shelf and States would
hesitate to ratify the Continental Shdf Convention even more than previously.
1cannot believethat this is really the conviction ofthe Kingdom of Denmark
and the Kingdom of the Nt:therlanclswith respect to the interpretation of the
clause. We have got information tllat the Kingdom of the Netherlands, for
example, which isresponsible for the foreign relations of Surinam, which ispart
of the Kingdom of the Nethi:rlands, wems to take another viewin thissituation.
We have distributed an article whicli became known to us during this year on
some dispute that is going on between Surinam and Guyana concerning the
delimitation of their respective continental shelves. We have submitted this
article, which recently appeared in the NederlandsJuristenblad, 1968, No. 9,
pages 224-225 to the Court as well as to the Parties and a map (seep. 48, infra)
showingthe substance of this dispute1.So far 3 Ihave heard there has been no
objection to producing this article aiid rnap up to now, and it rnay be that you
already have this rnap before you. 1:;there any objection?
Professor RIPHAGEN: !Ar. President, we have no objection.
Professor JAENICKE: Thank yoii very much.
This shows that Surinam wants to have the boundary of the continental shelf
See p. 299, infra, and Nos. 41, 43 and 44, pp. 386, 387 and 388, irrfra.NORTH SEA CONTINENTALSHELF ARGUMENT OF PROFESSORJAENICKE 49
constructed in such a way that it woulti be the continuation of the westward
bankof the Courantyne river, which would be the line to the left on this map,
while Guyana on the other hand would Iike to rely on the equidistance line,
which is the through line he:reon th€ right of the map. While 1do not want to
pas any judgment on the question vihich of these two lines is equitable, 1just
wanted to show that the Kingdom of the Netherlands does not apply such a
narrow interpretation to the special ~:ircumstancesclause in this case, and it is
interesting that this case of the Iateriil boundary where the projecting coast of
Guyana diverts the equidistanceline beforethe coast of Surinam. This isjust an
example of the "diversion effect" which might be a justification for invoking a
special circumstances clause.
In opposition to the untenable nar.rowinterpretation advocated by the King-
dom of Denmark and the KLingdomof the Netherlands, the Federal Republic
takes the position that the special circumstances clause must be interpreted
according to its purpose. As it is the purpose of the clause to avoid inequitable
results of the equidistance method, it seems justified to say that it could be
invoked in any case where one cou1.destablish that the equidistance method
would result inan inequitable apportionrnent of the continental shelfamong the
States concerned.
Of course, it is insufficientto invcikemere equity in order to establish that
there are special circumstaiices which justify another boundary line. Here,
again, we must search for criteria which can determine whether the circurn-
stancesof the situation are sospecia;istojustify another boundary line.Intheir
Counter-Memorial, the Kingdom of Denmark and the Kingdom of the Nether-
lands have tried to split up this basic question into two. The first, to enquire
whether the circumstances of the case are special, and after this has been
established to ask further whether this special situation justifies another
boundary line. 1 do not thirtk that tliese two questions can be separated from
each other because the spi:ciaI nature of a particular situation cannot be
ascertained without knowing in what respect the situation has to be found
special. Since there must be some special reason to justify another boundary
line,the particular situation must net:essarilybe distinguishable from others by
special facts which provide sufficientjustification for a different boundary line.
Now 1think that the special circumstances clausedoes not require that there
exists a factor which is itself abnornial or exceptional. A certain coastal con-
figuration cannot be charac1:erizedai abnormal by itself. Who would dare to
determine what a "normal" or "abrionnal" geography is? Only the effect of
that factor or a cornbination of the factors on the apportionment of the con-
tinental shelf couId constituta speciiilsituation which wouldjustify a different
boundary. There are no factors which necessarily lead to an inequitable result
nor are there factors which can nevar cause such a result. It depends on the
specificsituation, on the geography, on the land frontiers, on theextension of
the continental shelf,etc., ~vhetherthe combination of al1these factors givesthe
situation such a specialcharacterization that the application of the equidistance
line would produce an inequitable result. Here again, the preIiminary question
poses itself-what are the criteria which determine the equitableness cirinequi-
tableness of the apportionm1:nt of the continental shelf?
The Federai Republic of Germanjvis of the opinion that under Article 6 of
the Continental SheIfConvention thi: criteria which determine the presence of
special circumstances excluciingthe eqiiidistance line, are quite the same as
those which determine the iapplicabi.lityof the equidistance method between
States to whom the Convention doe:;not apply. This could not be othenvise.
The equitableness of the apportionrnent of the continental shelf among the50 NORTH SEA CONTINENTAL SHELF
adjacent States is not dependent upon the question as to whether the boundary
is drawn between parties or non-parties to the Convention. If an illequitable
apportionment of the continental shelf between the Parties is sufficientground
for invoking the special circumstances clause,1could refer to the criteria which
1 have already mentioned in the first part of rny address this morning, with
respect to the applicability of the equidistance rnethod under the non-con-
ventional regime.
However, 1should like ta show that evenunder the conventional regime, if it
were applicable between the Parties, there is sufficientreason, in the situation
before the Court, to recognize special circumstances whichjustify a boundary
other than the equidistance line.
Even if wewere for a moment to forego the concept of the equitable appor-
tionment which has found so little favour with our opponents, is there a
situation which rnight be generally characterized as a special circurnstance
justifying another boundary line? 1think that sucha situation does indeed exist.
Any geographical factor which diverts the course of the equidistance bound-
ary betweentwo States in such a manner as to cause the allocation of consider-
able areas of the continental shelf to one State-I must just repeat to be quite
cIear, any geographical factor which diverts the course of the equidistance
boundary between two States in such a rnanner as to cause the allocation of
considerable areas of the continental shelf to one State which is necessarily
classifiedasa natural continuation of the territory of a second State, then suah
factor must be regarded as a special circumstance within the rneaning of
Article 6, paragraph 2, of the Convention.
Under the aegis of this definition 1 could even with satisfaction acquiesce in
the viewpoint of Ouropponents who Saythat the State hasa valid title to those
areas before its coast which are to be regarded as a natural continuation of its
territories-thisof course implies that the State has no valid title to areas
which are the natural continuation of another State's territory. If the equidis-
tance line diverts the boundary into the area which is the natural continuation
ofthe other State then, in rny view, special circumstances exist.
There again, the problem in the case before us is reduced to the following
question: Does the equidistance boundary follow the true limits of the con-
tinuation of the state's territory into the sea? As to the situation before the
Danish, German and the Netherlands coast, the real question is: What areas
have to be regarded as the natural continuation of the one or the other State?
That brings us in fact back to the sarnecriteria which we needed for determin-
ing the equitable apportionment of the continental shelf between the Parties
under the non-conventional regime.
The Kingdom of Denmark and the Kingdom of the Netherlands allege that
al1areas whichare nearer to some point on their coast than to the German coast
have to be regarded as a natural continuation of their territory. Therefore,
they clairn that the equidistance boundary is perfectly normal because it
allocates to them only such natural continuation areas. This would in eflecl
corne down to a rnere tautology, to saying that an equidistance boundary is
normal because it is equidistant.
Now 1turn to the question how to determine whether the equidistance Iine
follows the direction in which the territories of the three Partiescontinue into
the sea. Suppose you would isolate the Danish and the northern part of the
German coast and disregard the existenceof al1other coasts of the North Sea,
as if both countries were facing an open sea. Then it might be possible, under
this hypothesis, to regard the areas west of both countries as a natural con-
tinuation of their territories into the sea. The equidistance line could then be ARGUMENT OF PROPESSOR JAENICKE 51
regarded as normal and equitable. You could do the same with the Netherlands
coast and the adjoining part of thi: German coast and disregard the other
North Sea coasts, justasif both couritries were facingan open sea to the north-
north west, the areas north-riortwe!;tof both coasts might then be regarded as
a natural continuation of the Netherlands or German territories into the sea.
The equidistance boundary might then, in such a case, be regarded as normal
and equitable.
Such an approach, however, isolating both situations in such a way, distorts
the general geography of the situaiion. You cannot split up the boundary
question between Denmark and Germariy or between the Netherlands and the
Federal Republic of Germany as ifthere were no other countries adjacent to the
North Sea.
1 again refer to the informative diagram in the Common Rejoinder, 1,
page 472, or if you prefer, to the big map before you. What is the direction into
which the territories of the three States extend themselves into the North Sea?
If you take asa basis the general direction of their coasts, or the direction of the
coastal front of each of the three Sts.tes,the direction of the extension of their
territories extending into the North Sea is determineby a line perpendicular to
each respectivecoastal front. Then their continental shelvesgradually converge
into each other and if wethen deterrnine what areas are thenatural continuation
of the one or the other State, we are, for the manifestation of the geography,
forced to regard them as sector-like slicesconverging towards the place where
the continental shelves of Great Britain, Norway, Denmark, the Netherlands
and the Federal Republic of Germany ineet. It is just like the same operation
we did before when we discussedthe eqiiitableness of an apportionment of this
remaining factor in the south-easter~ipnrt of the North Sea.
Lfwenow posc the questicinwhether the equidistance line followsthe natural
continuation of the three ten-itoriesiiito the sea, wehave to regard this problem
as a single whoIe. Then we corne to a completely different resuIt, because the
Danish as well as the Nethedands cclastis projecting towards the centre of the
North Sea, while the German coast, betiveen the two others, curves back from
the general coastline. Thereby, the equidistance line on both sides is distorted
into the German sector so tkiatboth linesmeet not far from the German coast.
This cutting off ofextensive areas of the continental shelf can only be regarded
as a special circurnstance, bt:causeit cuts off extensive areas of the continental
sheIfwhich shouId be regarded as thc:continuation of German territory in view
of the criteria which 1developed earlier this morning.
This "cut-off effect"has been demonstrated diagrammatically by figure 3 as
wellas figure 5in our Reply, 1,pages 428 and 430. This cutting-off effectwould
have corne about-as you will set:if you compare figure 3 and figure 5-
either if the three countries would face an open sea, or an enclosed sea like the
North Sea.This 1subrnit, forcesus to the conclusion that such a"cut-off effect"
invariably is the special circilrnstance:wliichjustifies another boundary.
In their Common Rejoinder, the Kingdom of Denmark and the Kingdom of
the Netherlands try to deny that th& coasts have projecting parts causing a
diversion of the equidistance line. They Say that the Federal Republic of
Germany had not in the slightest way suggested what part of their prominence
coast had to be considered as projecting or what influence on the boundary
line such a part might have.
1think that 1have shown quite cleiirlywhat are the projecting parts 1have in
mind andeither the diagram or the map willshowhow the form of the coastline
of Denmark as welIas the Netherlarids produces this "cut-off effect".
Now 1hope i have, by this, made clear what specialcircumstancesthe Federal52 NORTH SEA CONTINENTAL SHELF
Republic of Germany regards as present in this case. The correction which the
present situation callsfor isto neutralizethis cut-offeffectof the diversion ofthe
equidistance line. Thiscan be done by agreeing on a boundary which folIows
more closelythe direction in which the continental shelves of the three States
convergetowards the centre of the North Sea.Again 1must emphasize that this
does not mean that the Federal Republic of Germany wants to be compensated
at the expense of its neighbours.
The Federal Republic of Germany maintains that the areas of the continental
shelf involved in such a correction, lying ahead of the Germany stair towards
the middle of the North Sea which has, up tiIl now, been unilaterally treated as
part of the Danish and Netherlands continental shelf, do not appertain to Our
neighbour States, if the concept of the continental shelf isunderstood co~~ectly.
The reason is that it cannot properIy be regarded as the continuation of their
territory in the sea.
If the Court recognizes that special circumstances are present whichjusti fy
boundary other than the equidistance boundary, the legd consequence would
then be that another boundary line would be drawn under Article 6 (2) if it is
applicable.Thus the result would be the same if Article 6(2) were applied tothe
case. In any event the Parties will,if the Court would recognizethat the equidis-
tance method would not be applicable, have to agree on another boundary
with such guidelinesas the Court may deem proper to giveto the Parties with
respect to the factors which they should take into account. This is in accordance
with general international law as well aswith the conventional regirne under
Article 6.
Under general international law the determination of the boundary is
entirely left to the agreement of the Parties. Although it may be true that there
are cases where a party must accept the equidistance line asa basis for a
boundary proposed by the other party, ifit is equitable, it isequally true that in
other casesthe parties must agree on another boundary line if the equidistance
line is not equitable. If the Parties referred to arbitration, as they have done in
this case, and if the Court were then to find that the Federal Republic of Ger-
many is under no obligation to accept the equidistance line, the matter would
necessarilyhaveto be referred to the Parties forfurther negotiations on another
boundary line, with such guidelines as the Court in its discretion rnight deem
proper to give to the Parties.
Under the regime of Article 6 of the Continental ShelfConvention, if it were
applicable between the Parties, the determination is also primarily left to the
Parties. It then depends whether there are special circurnstances or not. If the
Parties agree that there are no special circumstances then the equidistance
boundary is the boundary, but if the Parties are in disputeas towhether there
arespecialcircumstancesor not,the matter has to besettledeither by agreement
or by arbitration. If the Partiesresort to arbitration as they havedone here, and
if the Court would then findthat there are specialcircumstances,the matter wiIi
necessarily be referred to the Parties for further negotiations on another
boundary line and also with such guidelines asthe Court, in its discretion, may
deem it proper to givethe Parties with respect to the factors they should take
into account. In this case the primary method of settlement prescribed in
Article 6, namely that the boundary line should be determined by agreement,
will become operative again.
Certainly the considerations under which the Court might find that the
equidistance line is not applicablin this case will giveenough guidance to the
Parties as to what should be the equitable apportionment of that part of the
continental shelf.
The Court rose ut 1.10p.m. ARtjUMENT OF I'ROFESSOORDA
THIRD PUBLIC BE.ARING (25 X 68, 10a.m.)
Presenf:[Seehearing of 23 :K68.1
Professor JAENICKE : Taday 1viould like to afïord my learned colleague,
Professor Oda, the opportunity to a.ddressthe Court on the subject-rnatter of
the dispute before you. 1net:dnot inxroduceProfessor Oda in his capaciasan
expert of maritime law. 1 wiIl presume that you know him already by his
writings on this subject. .
Professor Oda has been Lntimatelyconnected with the law of the sea since
1958. He hm been a member of the Japanese delegation to the Geneva Con-
ference on the Law of theSi:ain 1958.He basrecently participated in the work
of the United Nations Ad .Roc C~r~~mitteteo Study the Peaceful Uses of the
Sea-Bed and the Ocean FIoor Beyoridthe Limits of National Jurisdiction.
Professor Oda will continue the presentation of the case on behalf of the
Federal Republic of Germaily in his personal ~pa~ityas learned counsel to the
Government of the Federal Republic of Germany.
ARGUMENT OF PROFESSOR ODA
COUNSEL FOR THE FEDERAL REPUBLIC OF GERMANY
Professor ODA:Mr.President anilJudges of the Court, 1deem it indeed an
honour to be able to makc:an appearimce before the Court. I also consider
myselfprivilegedthat the Governmeilt of the Federal Republic of Germany and
its Agent, Rofessor Jaenicke, have entrusted me with the task of pleading this
case as counsel and have thereby offered me the opportunity to attempt to
delineate the issues now before the Court.
Quite clearly, this is a case which, due to its cornpleandydue to its im-
portance both to the Partie:and to the community of nations as a whole, has
elicited lengthy and learned written pleadings from both sidIn.so far as oral
arguments are concerned, 1:appear here following the Agent of the Federd
Republic of Germany, Profe:ssorJaenicke. The factsand the fundamental issues
involved in this case have therefon:been amply discussed and I would not
presume to imagine that 1could, atthis stage, treat a whoLlynew aspect of this
case.What 1 would like to do, however, is to see if 1cannot perhaps serve the
Court by touching upon and, 'in sume instances, re-examining some of the
factual and legal implications which confront us by approaching this from a
somewhat different, somew'iat personalized,asit were, viewpoint. With this in
mind 1 would try tobe seIe,îtiveratlier than inclusive: to the extent that I am
obliged at times to cover tei~itorydiscussed previously, 1ask your indulgence.
May I outline those matters upon which 1would like to make sonie general
comment. Subsequently 1wouId like to touch in some detail upon some of the
matters which 1 think merit attention.
To begin with, leus return to a fi:wbasic elements of this case which might
perhaps belost in the deteIopment of detailed analysis unless attention is
redirected to them. If weexamine the large copy of the map which is displayed
at the rear of the courtroom and th#-siinilar map, figure2, in our Memori1,,
l See footnote on page 3.2.54 NORTH SEA CONTINENTAL SHELF
page 27, it becomes apparent that, in the situation of the North Sea, we are
confronted with lines of demarcation which are both just and uncontested and
others which are not. Contested lines have no definite legal existence prior to
final adjudication by the Court.
If a line drawn for demarcation purposes is to becomelegallybinding forthe
parties concerned, it is necessary that it receives Iegal recognition. There are
three alternatives how this can be achieved.The line must be fullyagreed to by
those nations whose vital interests are at stake, or such a boundary must have
come into being pursuant to a recognized customary rule of international law,
or etseit must have receivedconfirmation bya competent international tribunal.
The enurneration of these alternatives makes it clear that a boundary has no
legalexistenceifit doesnot correspond to one of thethree law-creating processes
just mentioned. 1 would refer to the line drawn as the median line between the
British Isles on one side and the European Continent on the other as being in
harmony with the principles of international law.
The use of a median line is a method of demarcation which, if usedin proper
geographical context, and if no unsound subsequent conclusions are drawn
from its existence, can lead to commonsense results and just and equitable
solutions. However, you willnote that I mention the importance of usage in its
proper context. The median line drawn between the British Isles and the Euro-
pean Continent must therefore be seen in the proper context. That situation is
one in whichthe median line is usedto dividethe maritime areas found between
nations whose coastal frontages lie roughly in opposition to each other. In
contrast, the equidistance Iineis not properly employedas a line of demarcation
between adjacent coastal States, in those instances where maritime areas at a
substantial distance from the shorelineare to be apportioned. The Parties to this
litigation are adjacent coastal States. The attempt to use equidistance lines
formaiistically applied to apportion the continental shelfareas of these adjacent
coastal States, with the consequence of having lines of demarcation drawn in
this fashionreaching far out beyond the coastal belt, can quite easilylead to the
odd result so well illustrated on the map in the rear of the courtroom.
Having begun with this very brief discussion of prime examples of both the
proper use and the misuse of equidistance lines for demarcation purposes, I
would liketo follow from this into a more detaiIed discussion offour separate,
logically related topics. May 1outline them briefly?
The first deals with the point that the equidistance method, as envisaged and
advocated by the Kingdom of Denmark and the Kingdom of the Netherlands,
was not a rule of customary international law with regard to the delimitation of
the continental shelfat the timewhenthe GenevaConvention on the Continental
Shelf was adopted in 1958.
Secondly, 1think that 1can show that the relevant State practice for the past
ten years since 1958 has not become sufficiently developed as yet so as to
coalesce into customary international Iaw with respect to the equidistance
method.
My third point follows the necessary conclusions of the first two. Since the
question of how to treat demarcation lines in situations similar to the present
case cannot be answered by recourse to customary international law, and since
no such custom can be correctly said to have been developedeither prior to or
subsequent to the Geneva Convention on the Continental Shelf, 1 therefore
respectfully refer to Article 38, paragraph 1, of the Statute of the Court; that
the Court, 1 respectfully submit, should apply in this case the general principles
of law recognized by civilized nations.
My fourth, and final, discussion will treat the question of how the above- ARGUMENT OF PROFESSOR ODA 55
mentioned general principiei;of law iaecognizedby civilizednations can provide
us with the necessary criteria for dlscidingwhat would constitute a just and
equitable share in the particular factual situation now confrontingus.
As I mentioned, the first thing 1 would liketo do is to negate the existence
of relevant customary international law prior to 1958.You will remernber that
in my opening remarks 1referred to wh;it 1cal1the "odd" results which would
be reached in this particular situatioiî through strict application of the equidis-
tance method. It is interestirigto notr, tlierefore, that prior to 1958,the year of
the Geneva Convention on the Continental Shelf, no State custom or practice
had been established with regard to such a manner of applyingthe equidistance
method. 1should make it qiiite clear that 1 am not attempting to infer that the
fundamental principles of the reginle of the continental shelf were novel in
1958. 1 am merely trying tel emphacize that in 1958solutions to some of the
detailed problems concernirig the continental shelf concept had not yet ben
found.
1 think it is undisputed that with .respectto the general concept of the con-
tinental shelf, because of continua1 state practice since the end of World War
Two (particularly in the forrn of nurrierousproclamations concerning the shelf)
customary international law with respect tothe continental shelf in general had
evolved by 1958.
We have the example of the Truman DecIaration of 1945,which says:
"In cases where the continenial shelf extends to the shores of another
State, or is shared with a.nadjacent State, the boundary shabe determined
by the United States and the Sta.teconcerned in accordance wifhequitable
principles". (U.N. Legisluti Svereies, Lawsand Regulations on the Regime
of the High Seas, Vol. 1, 1951, p.38; italics added.)
Among examples wehave thi:proclacoations by Saudi Arabia and severalof the
Trucial Sheikdomsconcernirigthe coiltinental shelf inthe Arabian Gulf and the
Iranian pronoincement concerning the continental shelf of the Arabian Gulf.
It ismost noteworthy that inal1the abcive-mentionedexamplesgreatemphasis
was laid in the proclamations that th!: boundaries should be delimited in
accordance with the principle of equitabIe apportionment. It is also relevant,
in contrast to the present situation, th.zttlwseclairnswerenot objected to byany
other States, and therefore theseclaimscan be said to have beentacitlyaccepted.
The opposing sidein this cas: cannot be heard to arguethat there isan element
of tacit acceptance here.
It would befair to Say,therefore, thiit,untill958, it wasan equitable standard,
rather than the strict applica.tionof f'ormalgeometric construction which pro-
vided a standard for apportioning the crintinental shelf areas.
Regarding the over-al1coiitinental shelf regime, the late Sir Hersch Lauter-
pacht had aiready in 1950referred specificallyto the doctrine of the customary
law of the continental sheIf. Further, he emphasized the absence of protests by
other States afkted by these proclamations. Sir Hersch Lauterpacht's view-
point has had a strong effectupon other :;cholars.For instance, Professor Kunz
took the saine approach to these probleins. He advanced the opinion that the
doctrine of the continental :;helfwas at that time not yet a norm OFgeneral
custornary international law,.but coiild be considered a new norm of general
customary international law infieri, instatu naseendi.
By 1958there was widespread recognition that a coastai State isvested with
exclusive sovereign rights for the exploitation of natural resources frorn the
continental shelf contiguous toits coast. The rights of such a coastal State over
its contiguous continental shelf are exclusive in that other States who are not56 NORTH SEA CONTINENTAL SHELF
contiguous to such a sheif cannot claim or acquire rights to the part which
appertains to the aforementioned coastal State. This fundamental doctrine is
reflectedin the Convention on the Continental Shelfin Article 2, paragraphs 1,
2 and 3, In no way then could the general concept of the continental shelf
existent at the time of the Convention be said to enable a coastal State to
acquire exclusiverights to contiguouscontinental shelfares to the detrimenof
adiacentcoastalStates whosecoastlineisalsocontirnous to that samecontinental
shelf.Those sectionsof the Convention whichdeal; with the particular problems
of delimiting the geographicai extension of the shelf and of the boundary lines
between adjacent coastal States contiguous to it were new and did not reflect
customary international Iawexistent at that time. Ttmight be usefulto strthe
development of those rules in the Convention, Article 6, which represeatnew
rule not found in customary international law. The background thereto can be
found in the deliberations of the International Law Commission between 1950
and 1956.
The report of the International Law Commissionrendered in 1950contained
relevant comment in paragraph 199 (Yearbook of she InternationalLaw Com-
mission,1950, Vol.LI, p. 384).At that time the Commission began to note that
boundaries had to be delimited in cases where the interest of two States over-
lapped, with regard to mutual interests so that no State could penetrate into
regions which belonged to another State. In 1951a special rapporteur of the
Commission on this subject, Professor François, stressed in paragraph 162,
section 9, of his report (ibid., 1951,IIl,. 102)that in this situation common
accord was a primary element in delimiting boundaries and, 1would point out,
that,as to the method of actually drawing the boundary, the specialrapporteur
spoke merely of prolonging the line which separates the respective territorial
waters of the States concerned.
The only definite matter alluded to was a median line, which concemed the
situation involvingthe delimitation of boundaries between opposite coasts.
The report of the International Law Commission in the year of 1951,which
took due note of the comment of the special rapporteur, again emphasized the
need for agreement in drawing continental shelf boundaries of adjacent coastal
States and, in the absence of agreement, a solution by arbitration or by adjudi-
cation on the principle ex aequo et bono. Ttis, 1think, most interestinand
relevant that the commentary to Article 7 of the 1951 Intemational Law
Commission Report States:
"lt is not feasible to lay down any general rule which States should
follow; and it is not unlikely that difficultiesmay arise. For exampno,
boundary may have been fixedbetween the respective territorial waters of
the interested States and no generai rule exists for such boundaries."
(Ibid., 1951, Vol. Tp. 193.)
There can be no clearer proof that at the time of this report-1951-there
was no possibility whatsoever of the existence of a customary rule of inter-
national law which demanded the application of what is now known as the
equidistance method.
Inthe course of the deliberation of a committee of experts which was ap-
pointed in 1953 to find appropriate methods of drawing boundaries, direct
mention wasmade forthe firsttime of theequidistancemethod. Signifiant once
again is that the committee conceived ofa verynarrow scope of application for
this mle. Let me quote you the remarks of the committee:
"ne Cornrnittee considered it important to find a formula for drawing
the international boundaries in the territorial waters of States, which could ARC;UMENTOF PROFESSOR ODA 57
also be used for the delimitatian of the respective continental shelves of
two States bordering the same continental shelf." (Ibid., 1953, Vol, II,
p. 79. English text awording .to Danish Counter-Memorial, 1, p. 258,
supra.)
I think that this is a very important point and I would liketo dwellupon it if
I may. The statement that :have jiist quoted does say that the equidistance
method can also be used fcir delimiting the continental shelf. If one reads a
statement without obtaining strained or tortured interpretations, it is clear
that the equidistance method wasçcinceived of primarily for the dernarcation
of the territorial waters of cclastalSta.tes.The use of this method for apportion:
ing the continental shelf was menticlned as a mere possibility, and could not
even remotely imply a mandate for the use of this method in al1 situations.
The fact that the equidistcince method wu designed primarily to delimit
territorial water boundaries is al1the more important when we consider that
in sucha case relatively short dis ta nfrom the coastal front are involved, and
the extreme, and evensometimesbizarre, results reached by strictlyapplying the
equidistance method to apjiortion the continental shelf at greater distances
from the coastline cannot corne into play.
It is evident that the arbitrary effects of the strict equidistance method
increase with the distance from the coast. The shortcomings are insignificant
near the coast but can becorne monu.menta1far off shore.
Ifany doubt remains that the equidistance method was not introduced for
general application in order to apportion vast expanses of marine areas, it
would be well to consider the reservation contained in the preamble to the
report of the Cornmittee of Experts:
"It should be ernphasiz1:dthat these replies are given from the technical
point of view, bearing irirnind iriparticular the practical difficultiesof the
navigator." (Yearbook ofthe InttrrnotionaLaw Commission, 1953,Vol. II,
p. 77. English text according to the Danish Counter-MemoriaI, 1, p254.)
It seems almost too evident that a iiavigator would not be concemed at al1
with the continental shelf boundaries but rather with the areas defined by the
Iimits of the territorial waters. After ;dl, the former boundaries do not involve
issues of adrniralty law but of exploitation rightsto the resources of the shelf
subsoil. And yet you will rcmember that the rule formulated in this report
looks to "the practical difficultiesof the navigator".
The Report of the International L;iw Commission in 1956then mentioned,
in Article 72 thereof (Yearbook of ie InternationalLaw Commission,1956,
Vol. II,p. 269, the use of th12equidistance method to determine the allocation
of the continental sheIf between adj:icent States, with of course, the special
circurnstances limitation. Much has previously bee said by Professor Jaenicke
about the question of special circum:;tances, so 1 shall not dwell upon this.1
would merely stressthat the Internationai Law Commission was awate of the
impossibility of strictly app1:yingthe equidistance method and, therefore, not
oniy included the special circumstancc:~reservation, but, in the cornmentaryon
the relevant article (Article 72) stated that "the ruIe adopted is fairly elastic".
We corne now to rnypoint of departure, namely the Geneva Convention on
the Continental Sheif in 1951g1. hope.that 1 have shown that at that time the
equidistance method did not represent a rule of customary international law and
that to the extent the equidistance me.thodwas incorporated into the articles of
the Convention, its rule of ariplicatioriwlrsseen as being of a suggestiverather
than of a mandatory nature. Flexibility, as I have quoted before, rather than
rigidity, wasto be the critericlnfor determination1 have thus fardiscussed the 58 NORTH SEA CONTINENTAL SHELF
Iack of customary law status of the equidistance rnethod up to the tirne of the
Geneva Convention on the Continental Shelf, 1would now like to turn to part
two of my discussion which relates to the status of the equidistance rnethod
following the Convention of 1958. 1 propose to examine in some detail the
State practice with regard to the division of continental shelf are1shall then
see what general conclusions can be drawn from the over-al! picture. 1 would
emphasize once more that to the extent it is claimed that the equidistance
method has customary law status, it must have acquired such status since 1958,
if it had done so at all. I think 1hcan Saythat ithas not done so. Let us look
to the precedents in this area.
There are acertain number of them and the shortage of time alone precludes
mefromdiscussingthem all. To beginwith, 1think wecan welldispose of those
examples which concern bilateral agreements between States having opposing
coastal fronts. Sucha division would of courseconstitute a solution on the basis
of a median line, and, as we have already indicated, the Federal Republic of
Germany does not object to the use of the median line as acriterion under the
proper circumstances. Since in the present casewe are not faced with a dispute
concerning the median line of the North Sea 1think 1need not discuss those
precedents involvingStates with opposing coastaI frontages. What 1would Iike
todo is to examine the factual situation in some of the precedents that involved
agreements between adjacent coastal States as to the delimitation of their joint
boundaries defining their respective offshoreareas. 1shall then ask whether we
can present a useful analogy between these precedents and the factual situation
that now confronts this Court.
If we can take the position that the median line method is not directly
relevant to this case, we will find that what remains of the precedents on State
practice does not present us with any clear cases wherethe equidistance method
was strictly applied to draw boundaries between adjacent coastd States. What
we do find among the precedents, however, are some cases which, though not
directly analogous in fact to this one, nevertheless deserve comment because
they may render us some insight as to how this troublesome factual situation
rnight possibly be solved in a just and equitable rnanner.
If we take a brief view of the situation in the various continents, in South
America we have the example of simultaneously executedbilateral agreements
between ChiIe, Peru and Ecuador. These countries entered into agreements
providingfor theallocation amongthemofvast expanses of offshore areas. It is
significant that those countries intending to draw boundaries reaching a far
distance from the coastline, disregarded the equidistance method and jnstead
employed an alternate approach. The three countries delimited their maritime
zones by drawing boundaries extending 200 miles from the actual coastline.
Theselines were constructed by drawing them along the parallels of latitude
whichcontinue the parallel of geographical latitude fromthe finalpoint of land
frontier. The fact is that in this precedent we have a workable solution for the
allocation of extremely fa-reaching boundaries to delimit maritime areas
among adjacent coastal States; a method other than the equidistance method
was employed. I would note in passing that we are not concerned here with the
merits of the 200-mileclaim but rather merely with the method in which the
lines were drawn.
1would next like to turn to the matter of the concession granted byKuwait io
the Kuwait Shell Petroleum Development Company. Reference was made
thereto in Appendix 5 to Annex 9of the Cornmon Rejoinder of the Kingdom of
Denmark and the Kingdom of the Netherlands. A map contained therein
delineates the concession area granted to the Kuwait Shell Petroleum Develop- ARGUMENT OF PItOEESSORODA 59
ment Company; 1would like:to refer to this map for the purpose of clarity.
May I cal1your attention to the filet that Our opponents in Appendix 5 to
Annex 9 of their Common Rejoinder in a note contained in the louer right-
hand corner of this map have alleged that the concession boundary would
corrcçpond to boundariesdrawn on the equidistance principle if certain islands
are disregarded. At least, tha.t is the ineaning I derive from the words "simul-
taneously equidistance line when the .islands[namesomitted] are disregarded".
It may well be that these coricessionIlinescorrespond to results reached bv an
application of the equidistance method upon certain premises. ~owéver,
consideration of this situation will not cast much light on how to achieve a
solution in the North Sea. This exam.pleis not relevant to the case before the
Court. For one thing, it may be presumed that the opposing side has had to
look very hard and veryfar indeed for an eximple of any alfocation of maritime
areas far offshore based upon the strict application of the equidistance method.
This is not an example of a bilateral treaty betweensovereignStates; rather it is
a concessiongranted by a sovereign State to an oii.Company, pursuant to the
exercise of the State's sovereign right:s.Of course, the opposing side may look
upon the Kuwait Shell PetroBiumDevelopment Company asa sovereignentity.
It may well be that things have come .tosuch a point but 1,as a cautious jurist,
would not yet be ready at thistime to ;yai~tthat the Shell Oil Company presents
the attributes of sovereignty. But let nie continue. Disregarding for the moment
this obvious distinction there are si:ill serious problems in trying to draw
analogies from the Kuwait concession :situation. The latter is not at al1 as
clear as this sparsely drawn map would indicate. The Kuwait Government
apparently does not regard the boundaries indicated thereon as final.
Kuwait, which shares sovereignty over the neutral zone between it and
Saudi Arabia, granted a coricession touching upon the coastal front of the
neutral zone to the Arabian 13ilCom.panyin 1958. This latter concession area
overlaps significantlyinto thc Shell concession area delineated on the map in
question coniained in the Common Rejoinder. Since the same State, Kuwait,
whichgranted the Shellconce:;sionalso [tctgetherwith SaudiArabia]granted the
Arabian Oil Company concession, this means that the lines indicated on the
map cannot be regarded as final.The significanceof the concession to Kuwait
Shellis greatly reducedas a psecedent for the employment of the equidistance
method involving long distances offsh.ore.
To complicate the situation depicte:dby this misleadingly simple map even
further, it should be noted th.atthe Government of Iran has granted two other
oil companies concessions which again significantly overlap and intrude upon
the Kuwait-Shell concession areas deyiicted.When this is taken into account, 1
would submit that, as an exainple of 21continental shelf allocation achieved by
the strict and undisputed application of the equidistance method, this precedent
becomes next to valueless.If this is not ei~ough,while we are on the subject of
this example brought forth by our opponents, it should benoted that aprovision
in the Kuwait concessionto the Arabian (3ilCompany stated that demarcation
should be finalized by negotiation wit:ha view to adetermination on equitable
principles.
1would likenow to turn to the example of the demarcation of the continental
sheIfcontiguous to the coast of the Si:ateof Senegal. This boundary separates
the territory apportioned to Senegal on the one side and Portuguese Guinea
on the other sidc. It should be notod that this boundary was agreed upon
in 1960before Senegal achievedits independence. 1would point out that here
we are confronted with a so1'1tionwhich had no recourse to the equidistance
method. In the caseof the adjacent Staiesof Senegaland PortugueseGuinea, the60 NORTH SEA CONnNENTAL SHELF
off-shore boundary was drawn as a rectiiinear extension of the border between
the two respective territorial waters. The latter border asstraight line. This
example is rnentioned in the Danish Counter-Memorial, 1,page 267, and in the
Netherlands Counter-Memorial.
An interesting exarnple is the boundary which apportions areas of the
continental shelf between the U.S.S.R. and Finland respectively. Were, we
have a situation where the pertinent boundary line may be said to change its
nature at a certain part of its course. For a certain distance after it leaves the
coast fromthe point in the Gulf of Finland where the land frontier betweenthe
two countries ends, the boundaxy looks like a lateral line; then it turns and
continues on a course in the Finnish Gulf half-way between the coast of
Finland and the opposing shoreline. This latter part of the boundary must
truIy be classified as a median line. On the other hand, that segment of the
boundary whichtouches the coast constituting a lateral line, was, due to special
circurnstances, not drawn on the bais of the equidistance method. If this
exarnple has any relevance to the present case,1 believe, therefore, that it
constitutes a negative precedentas to the equidistance method.
We may discern a somewhat similar situation in the recent treaty concluded
between Nonvay and Sweden, which divides the continental shelf in the
Skagerrak in a manner depicted on the map to be found in the Cornmon
Rejoinder, 1,page 553. For the sake of clarity may I refer to this map for the
purpose of analysis.
The opposing side has seen fit to classify this line as a lateral boundary
drawn on equidistance principles. A glance at the map will show that this is
hardlythe case.For one thing, evena cursoryexamination showsthat, regardless
of what thisline is called, it looks very rnuchindeed like a median line, sincethe
relevant coastal fronts of both lie alrnost opposite each other.
A median line solution in this context would seem to be a perfectly fair one
and, undoubtedly, that iswhy the contracting parties agreedto this delimitation.
Further, special circurnstances weretaken into account in drawing the line.In
view of the fact that the solution to this situation is an equitable one and
provided for the modification of the equidistance method because of special
circumstances, 1am not at al1displeasedthat the opposing sidechose to provide
the Court with such a graphic rendition of it in the Common Rejoinder.
The concrete cases discussedup to this point are a result of bilateral treaties
between States and 1feelthat it canbe said that they do not present a picture in
favour of the application of the equidistance method in the present situation. In
evaluating the State practice in this field,I would now liketotum my attention
to solutions atternpted by means of unilateral State acts. There are few such
instances of that type of State practice. To my knowledge, they comprise the
situations existing with respect to:
1. Iraq: As the opposing side açserted in paragraphs 70 ss. of the Common
Rejoinder, the Iraqi Govemment envisages a delimitation of the continental
sheif off her coast in the Arabian Gulf on equidistance principles;
2. Belgium: As the opposing side indicated in paragraphs 61 and those
following of the Common Rejoinder, Belgiurn would be ready to delimit her
part in the continentai shelfoftheNorth Seaby agreements with her neighbours
on equidistance lines, should the Bill introduced by the Belgian Governrnent
be passed.
3.The Decree by the Presidium of the U.S.S.R. Highest Soviet, dated
6 February 1968, referred to by the opponents in paragraph 66 and Annex 6
of the Comrnon Rejoinder, repeats almost verbatim the contents of Article 6 of
the Geneva Convention on the Continental Shelf. ARGUMENT OF PROFESSOR ODA 61
4. Australia has unilaterally claimealcontinental shelfareas offher territories
vis-à-vis West Irian-claims partially based on the equidistance method.
Let us see if we can draw ;inyrelevant concIusions from the above enumer-
ations of these unilateral ach;.
First, there is, of coursno assuraricethat the parties who unilaterally acted
willin the future maintain tlieir respective positions. Secondly,States which
have thus unilaterally acted ;ire presurnably well content with a solution they
themselves have chosen. Thirdly, to oui. knowledge at the present time, the
boundary solutions enunciated uniIatrrally apparentIy do not seern to present
inequitable situations to the adjacent States concerned.
A reviewof the unilateral Sltatepractiw, therefore, shows,Isubmit, no cases
of anyrelevance whatsoever to this dispute.
1 have tried in the second part of my general discussionto examine the State
practice as of the date of the Geneva Convention on the Continental Shelf in
1958. Tt is rny concIusion, which 1 respectfully submit to the Court, that the
State practice in the last ten years has not caused the equidistance method to
acquire the status of a rule of'custom;~ryinternational law. 1have also trieto
show that, prior to 1958,there was no rule of customary international Iawasto
the useofthe equidistance merhoci.1siibmit,therefore, that thestrictapplication
of the equidistancemethod in the presi:ntfactual situation cannot bejustified by
recourse to customary international Iiiw.
1now turn to the third major point of rnyargument. It is my contention that
a solution in this case must b'zbased iipon the principle of a just and equitable
share.
However, to reach this criterion J'ordetermination, 1 do not think it is
necessary that we have any recourse Io the Statute of the International Court
of Justice-Article 38,paragraph 2 (decision ex aequo et bono)-an approach
which the Parties would, of course, hiiveto agree to. This approach, however,
was not treated in the Cornpi*orniasndso, if we are to discover the rulecalling
for an equitable solution in ihis case. we shall have to look elsewhere within
Article 38 than to paragrapll 2. 1 think this can be done. Let us glance very
briefiy at the alternative operi to the Coiirt under Article 38, paragraph 1, as
to what law is applicable. Piiragraph 1 (a) speaks of treaty law; this is, of
course, not applicable here since the F'ederalRepublic of Germany has not yet
ratified with good reasons, as Professor Jaenicke has shown, the Convention on
the Continental Shelfof 1958.Let us tmnto paragraph 1 (b) :it is my position,
as 1subrnitted ta the Court in the secand part of my argument, that thereisno
general practice accepted as Iaw whicli would cal1for the strict application of
the equidistance method in this particular Jàctual situation befthe Court, nor
does paragraph 1 (b) provide us with any international custom wtiich would
provide a specific solution. ïhat lewes us, of course, only with paragraph
I (c) which refers to "the gt:neral principles of law recognized by civilized
nations",
The latter paragraph is the one whic:h,1subrnit, we can look to with success
in order to find a proper solution. It cari well be said that the doctrine that
equitable distribution under the law si-iouldbe achieved in a just and equitable
fashion, to permeate and imbue the eiitire range of the rules of law known to
civilized mankindso that the ~irincipleof equitabIe solution to legalproblems is
an inseparable and vital elemcnt of al1general principles of law.
There isan assumption, nay.,even%presumption,sofundamental as to appear
as an axiom, which suggeststhat there is n general principle oflaw, recognized
by civilized mankind, which calls for the law, if at al1possible,to beapplied in62 NORTH SEA CONTINENTAL SHELF
such a fashion as to açhieve substantial justice. Substantial justice, I'subn-iitto
you, means in such a situation that each party to a dispute will receive a just
and equitable share; 1Saythat it is my conviction that this is law.
I might add in this respect that Article 6, paragraph (2), of the Geneva
Convention on the Continental Shelf which, even though not binding on the
Federal Republic of Germany as treaty law does represent a facet of inter-
national law by virtue of the high sentiment which iternbodies. In the course of
the discussions leading to the formulation of Article 6, it was quite apparent
that the representatives of the nations taking part in the Geneva Conference
on the Law of the Sea were greatly concerned with the idea of a just and
equitable soIution in the demarcation of such boundaries.
1 suggest, therefore, that we need look no further than to Article 38, para-
graph I jc), of the Statute of the Court to find a rule of international law
commanding ajust and equitable,division of the areas in controversy.
May 1cite the Court a recent and very illuminating example of how, in a
somewhat analogous situation, ajust and equitable solution in harmony with
Article 38, paragraph 1 (c), of the Statute of the Court was reached. According
to information found in the trade press and confirmed by officia1sources, the
two States bordering the Arabian Gulf, Iran and Saudi Arabia, have initialled
an agreement over adisputed offshorearea, thereby dividing itnot by a median
line or another geometrical demarcation but rather by a novel so-called
"economic solution". This has been done by dividing al1of the "recoverable
oil" in the previously disputed area into two equal parts. Ideas which had been
advanced earlier, of dividing the "oil in place", were discarded. The equal
share now relates instead to al1 "recoverable oil" contained in the pertinent
geological structure. I feel that this example well illustrates that where there is
goodwill and a certain flexibility in approach on al1 sides a truly equitable
solution can be achieved if one does not insist on adherence to abstractly con-
ceived technical demarcation lines.
In this part of my argument 1 have discussed why 1 think that a just and
equitable share is caIled for by the law in generai. 1 would now like, in the
fourth and finaladdress, to explorehow perhaps, in the concrete case facing us,
this general mandate to seek equitable solutions could be achieved. 1offer the
followingasasuggestion ofjust one possibitityto the Court, with no implication
thereby that 1am attempting to circumscribe the Court's discretion in arriving
at other possible solutions.
One of the geat difficulties in this situation is that our opponents have
insisted on the strict application of the equidistance method. As I have said
previously, one ofthe problems of the equidistance method, if strictlyapplied, is
that it can lead to such inequitable results. 1 propose a somewhat different
approach which rnay be more suitable.
The equidistance rnethod can only be properly applied at short distances
from the coast. The further the lines are drawn from the coat, however, the
more will even minute variances in coastal configuration affect the angle of the
lines and thereby the amount of territory they will delimit far offshore.
1suggest, therefore, that if wewish to draw linesof demarcation to apportion
areas of the continental shelf far removed from the coastal belt, we shall have
to take a modified approach if a sensibIe outcome is to be achieved. In this
specificcase such modification might well entai1the drawing ofgeographically
delimited linesof demarcation not based upon the angledinward-curving North
Sea coast of the Federal Republic of Gymany. Rather, 1 propose that the
lines of demarcation be drawn from a basis represented by the coasta! "façade",
if 1may so cal1it. How do 1visualize a coastal façade? To answer this, may 1 QUESTIOPIS BY JUDGES 63
rcfer to the very interesting niap found in theCommon Rejoinder of the King-
dom of Denmark and the Kingdom of the Netherlands, 1, p.470.
The line drawn on this map from the island of Sylt to the island of Borkurn
gives us some indication of how 1 would visualize such a coastal façade. 1
should make it quite clear tliat 1 am not alleging that precisely this line con-
stitutes the basis for a rnodified approach to drawingthe lines of demarcation;
rather, what 1 am stating is that, in my opinion, this line provides us with a
starting point of reference for furth1:r c:valuation and discussion. At least 1
suggest such a general approach wculd provide a break-through towards a
solution which, until the present, has not been found within the general scope
of the discussion.
1feel that the façade apprclach that I have just proposed has significance in
attempting to draw lines of demarcation for vast areas of the sea because it
avoids deriving from the coastal coniiguration such an aprior iredominance
of one coastal State over the adjacent coastal Stateisinherent in the equidis-
tance method.
Therefore,1 respectfully s~ibmitthat we have i; the façade method a theory
which becomes more useful in the particular circumstances of greater distance
from the shore. In contrast to the equidistance rnethod whose value, given an
irregular coastline, may decline with ihe distance, the façade theory provides us
with a method which can eqilitably apportion far-ranging offshore areas.
1 have tried, in my addrejs, to achieve a certain balance among my four
arguments. 1divided the first two in an attempt to show that certain elements,
customary rules of international law, 30 iiot provide us with a method to settte
Ourcase. 1 have gone from tht:re to part three to showthat the general principles
of law recognized by the civilized nations provide us with a general standard
which we could follow. In part four I have tried to show one specific new
approach which might give irripetusto the standardof justness and equitableness
which is the general principle recognized by al1nations.
The Court a[(iourned.fro~ n1.15 to11.40 a.nr.
QUESTIONS l3Y JUDGES SIR GERALD FITZMAURICE AND JESSUP
Le PRPSIDEN Con:formiément al'article52,paragraphe 2,du Règlementde
Ia Cour, deux membres dela Cour déi.ireritposerà M. I'agent de la République
fédéraled'Allemagne des questions auxquelles celui-ci pourra donner des
réponsesultérieurement ou irrimédiatemerit,selon qu'il désireounon se réserver
un certain délaipour Ies préparer.
JudgeSirGerald FITZMAURICE : T wanted to aska question which arises
partly out of remarks which were nia.de yesterday by Professor Jaenicke, and
partly out of somewhat similar remarks inade this morning by Professor Oda.
Professor Oda was suggesting tous an alternative to the equidistance method
and he suggested what one rnight caIl the principle of the coastal front, and
pointed to the map in the Common Rejoinder, 1,p. 470.And in this case it
would involve drawing a bast:line between the Islands of Sylt and the Island of
Borkum, a baseline from which line; of'demarcation would be drawn. Pro-
fessor Oda said that hethought in that way a break-through could be arrived at,
a new method, so to speak, of dealing witli this problem; but hedid notonoto
indicate exactly how he would draw t:helines of demarcation from each end of
the baseline.64 NORTH SEA CONTINENTALSHELF
On the other hand, yesterday, Rofessor Jaenicke, in speaking on the same
topic, if 1 understood him rightly, suggested that the lines of demarcation at
each end of the baseline would be lines perpendicular to the baseline. But if we
look at the map of the North Sea it is evident that Iines drawn perpendicular
to the baseline would go off in a north-westerly direction, they would meet the
median line between Nonvay and Denmark. 1therefore assume that Professor
Jaenicke, when he talked of lines perpendicular to the baselinwas speaking in
a general way, or that he had some other case in mind and perhaps not parti-
cularly this case.
So 1would be glad if either Professor Jaenicke or Professor Oda could give
us some clarification on this piatter, and in particular, if they could indicate,
perhaps with a pointer on the rnap, exactly how they would draw the lines of
demarcation on the assumption that a straight baseline was drawn between the
Islands of Sylt and Borkum.
ProfessorJAENICKE: If I wereasked to answerthese questions, 1 would per-
haps dividewhatyou asked,Your Honour, intotwo parts. 1mean, the firstis the
question whether there is any difierence between the scheme 1envisaged yester-
day and the schemeenvisagedby Professor Oda. As far as this isconcerned, and
as to how the systern which Professor Oda has advocated would turn out in
practice, 1would please arkthe President to leave us time to demonstrate this
the next time, in the second round of the oral pleadings.
But Your Honour, as to what you said, regarding my remarks yesterday
on lines perpendicular to the baseline, 1think 1can now explain what I had in
rnind with these lines perpendicular to the baseline. These lines were not
meant as lines of demarcation, nor as some sort of proposed boundaries to the
continental shelf towards the neighbouring States. They were only meant to
show in which direction the continental shelvesof the three States converge, at
which point they converge. May 1 perhaps try to point this out.
Judge Sir Gerald FITZMAURICE: Could 1just draw your attention to this,
that my point there is sirnplythat linesperpendicular to a straight baseline can-
not converge.
Professor JAENICKE: Well,1rnaintained that each of the three countries has
its own coastal front, and if you have defined the general direction of these
coastal fronts, then, of course, if they do not have the same general direction,
they will converge. 1 may demonstrate, perhaps, what 1have in rnind.
If we take, for instance, the baseline indicated both by Professor Oda and
by me-I think that we'are of the same opinion-then you seethat this would
be the coastal front, because the territory of the Federal Republic of Germany
continues into the sea in the direction of the middle of the North Sea. If you
takeone coastal front and erect a line perpendicular to this coastal front, in the
middle, of course, then such a line indicates in which direction this continental
shelf of Gerrnan territory extends into the sea.
If you take another coastal front, say of Denmark, and you take roughly a
line north to south, that would bethe coastal front, in our opinion, of Denmark
facingtheNorthSea. Wewouldnot beso unfair asto take the coastalfront which
the other side has put down on the rnap in the Common Rejoinder, 1,p. 470.
So if we take a more fair line, just Saynorth to south, and erect a line perpen-
dicular to that coastal front, then you will see that these lines will converge
somewhere in the North Sea.
If you take another coastaI front, let us say the Netherlands, it would be
difficultto know what you would liketo cal1the coastal front of the Netherlands
facing the North Sea, but if you takea fairviewof what would probably bethe
most favourable one to the Netherlands, and ifyou erect a line perpendicular to QUESTIO?JS BYJUDGES 65
that Coast,in the middle, then you hive the direction in which the continental
shelf of the Netherlands converges with the other two
That was what 1meant by the line perpendicular to the coastal front: just to
show that I think that the te:rritorygoes in this direction into the North Sea.
Because the territories are continuinj: from al1sides into the North Sea, then
somehow they converge in tlie middEsof the North Sea. This was the concept
that 1 had in mind, taking i.hecoasial font as the basisand dso taking an
already determined fixed point or areil, the middle of the North Sea, because it
has already been agreed upon that the,$ethree sectors will be formed. The
British and Norwegian and the other secior of the three as faas it had already
been agreed upon. Then we have to take this as the buis and so we have an
indication in which direction the temitories of the other three will converge to
this point.
Judge SirGerald FITZMAURICE :Would 1be expressing your thought cor-
rectly if 1said that what you rneant wasnot somuch perpendiculars as parallels?
In other words that having fixedyour baseline, the direction of movement from
the baselineisparallel to the tiaselinea.teach stage. You havea baselinelikethis,
it moves out to sea in a direction aliwaysparallel to the baseline, and then if
you have two baselines set a.tangles, then those directions of movernent will
naturally converge.
Professor JAENICKE: Yes, that would be the same expressed in another
geometrical way.
Judge JESSSUP: 1do not riecessarilyexpectanswersto these questioiisat this
time, but leave that to the convenieni:eof the Agent for the Federal Republic
of Gerrnany.
My first question is this: the Agent for the Federal Republic of Germany in
his address to the Court, rn:~desomi: references to the resources of the con-
tinental shelf in the North Sea and Trnayadd that Professor Oda this morning
called attention toa recent 2rgreemen.tbetween Iran and Saudi Arabia which
dealt with resources.
Will the Agent of the Federal Republic of Germany, at a convenicnt time,
inform the Court whether it is the coritention of the Federal Republic of
Germany that the actual or probable location of known or potentiai resources
on or in the continental shelf, is one of the criteria to be taken into account in
determining what is a "just and equitable share" of the continental shelf in the
North Sea?
And that is my first question. My second one is perhaps a little long but
copies of it may be obtained from thi: Registrar after the close of this sitting.
1would explain that the written pleadings of the Parties refer to or reproduce
the texts of various agreements cont:luded between States bordering on the
North Sea, whereby common boundaries between their respective parts of the
continental shelfin the North Sea weri:specifiedand delimited. So farasI have
ascertained it does not appew that any one of these agreements was cconcluded
before 1962.
1 would ask the Agent for the Federal Republic of Germany to assume two
hypothetical cases:
Primo: Assume that in 1900 or 1961 the United Kingdom and the Federal
Republic of Germany agreed to specify and delimit such a boundary between
their respective arts of the continenial shelf in the North Sea in accordance
with ~riicle 6, paragraph (I), of the Geneva Convention on the Continental
Shelf.
WiI1the Agent for the Federal Rt:pul)lic of Germany have prepared and
distributed to the Court at a convenieiit time, a figureachart comparable to66 NORTH SEA CONTINENTAL SHELF
Figure 1in the Memorial, 1, page 24, showing the median line between the two
States concerned? That is between the United Kingdorn and the Federal
Republic.
Secundo: Assume a similar agreement at about the same time, that is 1960
or 1961, between Norway and the Federal Republic of Germany; will the
Agent for the Federal Republic of Gerrnany have prepared and distributed to
theCourt at a convenient time, a similar figure or chart showing the median line
ktween Norway and the Federal Republic of Gerrnany?
Professor JAENICKE: Mr. President, would you allow me to answer these
questions and produce the maps at a later stage of the oral hearing?
Le PRÉSIDENT: Accepté!
STATEMENT BY PROFESSOR JAENICKE
AGENT FOR THE GOVERNMENTOF THE FEDERAL REPUBLIC OF GERMANY
Professor JAENICKE :Taking again the floor after the address of my learned
colieague, Professor Oda, it is not rny intention to continue in presenting our
case with new and long arguments. 1 only want to add some short general
remarks to what I said yesterday.
In the days of the Permanent Court of International Justice, it would have
been inconceivable that parties would have argued before the Court about the
determination of boundaries through the high seas. At that time the principle of
the freedom of the high seas and its unhampered use by al1 dominated legal
sources in this field. However, the law of the sea is in the process of change, new
problems need new approaches. One of the new problems is the allocation of
extensive areas of the continental shelf beneath the seas.Already, the seabed
and subsoil of the North Sea have become the object of exploitation. Already,
new boundaries have been drawn through the waters of the North Sea.
Your judgment, 1think, will put the finishing touch to the partition of the
North Sea between the adjacent States. We trust that your judgment will
contribute to a just and equitable apportionment of al1the uses and resources
the North Sea provides for the nations.
The Federal Republic of Germany believes that a partitioning along the lines
Tindicated yesterday, a partitioning which would allocate each of the Parties a
sector-like part reaching the centre of the North Sea, would be the most
equitable apportionment.
Such an apportionment would also refiect and serve the cornmon interests of
the North Sea States. The North Sea cannot be considered as a mere object of
minera1 exploitation, Tt is forernost an open sea with important shipping
lanes connecting the coastal States with the world.
The partitioning of the continentat shelf between the North Sea States must
takecognizance of those facts. There are the difficult problems of reconciling
the different uses of the North Sea with each other, of controlling the instal- -
lations for the exploitation of the subsoil in the North Sea and baiancing the
needs of economic exploitation with the equal need for providing safe shipping
lanes with sufficient depth in the shallow NorthSea.
Al1 these problems of common concern to al1 North Sea States would be
better solved if each State which legitimately should have a say in decisions
regulating the different beneficial uses of the North Sea, would have control
over the continental shelf until the middle of the North Sea. At this point or
area al1 North Sea States meet which have an equal interest in these matters. STATEMENT BY PROFESSORJAENICKE 67
As a matter of fact, those joint interests of al1costal States wbelserved
much better if the middle part of the North Seawouldhave beenestablisheas a
common continental shelf ~nder joint controi of al1 adjacent States. Un-
fortunately, that ideaha not found sufficient support.if,however, each of
these States would reach to the rniddleof the North Sea, this fact would
certainly stimulate them to joint action in those fieldof common interest.
That, Mr. President, conclrrdes,for the prcsentstage of the ohearings,the
presentation of the case of the Feder~rlRepublic of Germany.
Before leaving the rostrum 1shall rtot fail to thank you, Mr. President, and
Judgesof the Court, for thekind pati8:ncewith which you havelistened to our
argument.
The Court rose nt12.10 p.in.68 NORTH SEA CONTINENTAL SHELF
FOURTH PUBLIC HEARING (28 X 68, 3.5 p.m.)
Present: [Seehearing of 23 X 68.1
STATEMENT BY MR. JACOBSEN
AGENT FOR THE GOVERNMENT OF THE KINODOM OF DENMARK
Mr. JACOBSEN: Mr. President, Membersof the Court, it hasalwaysbeenthe
firmpolicy of Denmark tojoin in everyendeavour to strengthen the possibiIities
of judicial decision of disagreement in international relations. Ttis therefore in
conformity with a longtradition ofgeneraIpolicyand with thefullestsatisfaction
and confidence that the Danish Government ha joined in placing this case
before the Court.
Mayladd, Mr. President,that personally1feeldeeplyhonoured to be allowed,
without any earlier experience, to represemy country before this Court.
In spite of tfirm Danish beliefin international judicial decision,the Danish
Govemment hasonly once before been represented in this courtroom. It was
35 years ago in the caseof the Legal Status ofEastern Greenland. This fact
reflectsanother strong Danish opinion, that international problems benand
shatl be settled through negotiations and agreemeand that Denmark would
rather go a Iong way to meet the demands of another State than let the matter
develop into a case demanding judicial decision.When,nevertheless,Denmark
now findsherself opposed to a neighbour State with whom friendly and neigh-
bourly relations are a matter of course, it has a double reason.
Frorn the first day and till today it has been and isthe firmconviction of the
Danish Government that the delimitation of the continental shein the North
Sea, as it is carried out by Denmark, isjust and fair and in everyway in accor-
dance with the generally accepted rules of international law.
At the sarne tirne the Danish Government must consider thiscaseasbeing
of the utmost importance. Denrnark has so far had no natural resources or
riches.In the modern searchforoil andgasextensiveexploration has taken place
without positive results, apart from the fact that not very far north of the
boundary line in question oil and gas have been found. Even if it is not yet
known whether commercial exploitation is possible, the position of the bound-
aryline rnust be considered as being of the utmost importance.
For these tworeasons the Danish Government has found it necessary toask
the Court for a decision based on law.
Denmark's general position with regard to the whole question of the con-
tinental sheIf is very simple indeed. When the work in the International Law
Commission had begun, she followed it closely and she comrnented upon the
preIiminary draft of the InternationaLaw Commission, setting forth ideas as
to the delimitation of the continental shelf which werein fact identical with the
later provisions of the final draft and consequently with those of the Con-
vention itself.
Denmark took an active part in the Geneva Conference, signed the Con-
vention and ratified it due course. Accordingly, by a RoyaDecree of 7 June
1963,she claimed exclusiverightç over the adjacent continental shelf,indicating
that the delimitation in the absence of any specia.1agreement should take pIace STATEMENT B'Y MR. JACOBSEN 69
according to the principle of equidistaiice.The text of this Royal Decrcan be
found in the Mernorial, paragraph 12..
Between Denmark and her neighbour to the eut, the Kingdom of Sweden,
no agreement regarding the delimitatian has yet beenentered upon. But as both
States have accepted the Convention!, the delimitatian will, of course, take
place in accordance with the rules of the Convention. With al1her other neigh-
bours Denmark has concluded treaties regarding the delimitation of the
continental shelf.
With the Kingdom of Norway not br:ing a party to the Convention, the
treaty fixes the boundary line expressly in accordance with the principle of
equidistance. This boundary applies i:o the North Sea as it 'is defined in the
North Sea Fisheries Convention of 1882, as well as to the Skagerrak to the
north-east of the North Sea.
With the United Kingdom and the Kingdom of the NetherIands, both parties
to the Convention, the continental shi:lf Iioundaries in the North Sea have by
treaties been delirnited according to ttte equidistance principle.
With the Federal Republic of Germranynot having ratified the Convention,
two agreements havebeen reached.
By a protocol of 19 June 1965it has been agreed that the continental shelf
boundary in the Baltic Sea, uhich is riot shown on the map here in the court-
roorn, shall be the median lin#:.This nieaiis a delimitation on exactly the same
basis as that of the Convention.
Andby a treaty of the same date the continental shelvesof the two States near
the coast, but foraconsiderable distanlzeout to sea, weredelimited bya straight
line, the inner starting point <ifwhich is the intersection of the outer limits of
the territorial waters as set down in a boundary description from 1921. This
point is not exactiyequidistant becausi:of considerations regarding a navigable
channel. The outer point, which is today marked on the map on the wall, is an
equidistance point between ttie coasts of Denmark and the Federal Republic.
The straight line between those two points, of course, cornesnearer and nearer
to a true equidistance line thr: nearer the line approaches the outer end point,
the equidistance point.
This is a delimitation in accordance with the des of the Convention, based
on the principle of equidistance but wiia slight deviation nearthe cout caused
bya speciaIcircumstance, in this casethe 1921delimitation of territorial waters.
the
These two agreements with the Federal Republic were concluded
result of bilateral discussions betweeii the two States involved and quite in-
dependent of the Netherlands-German partial delimitation which had been
agreed upon substantially earlier.
Consequently, the only part of the sîas surrounding Denmark where there is
no convention or treaty regarding the continental sheifisthe stretch betweenthe
outer point of the Danish-Gerinan ca.ntinental shelf boundary near the coast
and the south-eastern end point of the ~anish-Netherlands boundary, the
point on the rnap where the two boundaries are seen to intersect. Al1 other
Danish continental shelf boundaries have been delimited, or wiIlbe delimitedas
far as the Kingdom of Swederiis conci:rned, by treaty according to the rules of
the Convention. And this remaining p,artof the Danish-German boundary line
in the North Sea ha, been unilaterally rlelimited by Denmark by the Royal
Decree which 1 have mentioned, according to the main rule of the Convention,
the equidistance principle. Wtiatthisrneanscan be seen on the map where this
line is drawn.
The basis of the equidistance delirriitaiion is, on the Danish side, the west
coast of Jutland, the Danitth mainland, a' completely normal, practicaIly70 NORTH SEA CONTINENTAL SHELF
straight Coast.This boundary line is a direct continuation of the partial bound-
aryline and it is based on the same principle of delimitation as that partial
boundary line, the principle of equidistance.
The Danish Government can find no reason why this rernaining part of the
maritime boundaries should not be delimited in accordance with the same
general principles which are applied to, or are to be applied to, atl the other
Danish continental shelf boundaries towards the Federal Republic, as well as
towards a number of other States, nameiy the rules of the Convention.
This case between the Federal Republic and Denmark is, as far as the facts
are concerned, quite separate and independent from the other case before the
Court between the Kingdom of the Netherlands and the Federal Republic of
Germany. But as the legal considerations in the two cases are to a very great
extent indentical, my friends the Agent forthe Kingdom of the Netherlands and
the joint counsel, Professor Sir Humphrey Waldock, and I have arranged for a
presentation of the case of the Netherlands and the case of Denmark in such a
way that repetitions and, consequently, waste of time, as far as possible are
avoided. The Agent for the Kingdom of the Netherlands will indicate how this
presentation is to take place.
STATEMENT BY PROFESSOR RIPHAGEN
AGENT FOR THE GOVERNMENTOF THE KINGDOM OF THE NETHERLANDS
Professor RIPHAGEN: Mr. President and Members of the Court, it is a
source of profound satisfaction to my Government that your Court, the
principal judicial organ of the United Nations, is,once more, called upon to
deliver judgments in two very important legal disputes between States.
1 need not recall the fundamental importance my Government attaches to
the settlement of disputesby the International Court of Justice as an essential
element in the accomplishment of the purposes and principles of the United
Nations Charter.
The mere fact that disputes on matters of such weight as the delimitation of
the continental shelf under the North Sea are brought before your Court is
welcomed by al1who believethat disputes between States should be settled by
peaceful means in such amannerthat not only international peace and security,
but also justice is preserved.
My government feels confident that your Court does preserve justice, and
from this confidence derives the additional satisfaction of beingable to submit
to the binding and final decision of this august world tribunaa case, the out-
come of which is of prime importance to the Netherlands.
Mr. President and Members of the Court, at the outset of this oral argument
1feelbound to stressonce again that the SpecialAgreementconcluded between
the Government of the Federal Republic of Germany and the Government of
the Kingdom of the Netherlands requests the Court to settle a dispute between
those two countries, that is, betweenthe FederaI Republic of Germany and the
Kingdom of the Netherlands,
Indeed, this dispute is one relating to the location of the boundary line which
separates the continental shelf area appertaining to the Netherlands from the
neighbouring continental shelf area appertaining to the Federal Republic.
This is a matter which regards only those two countries, and a rnatter which
can be decided on the basis of the legal relations between, and the facts relating
to, those two countries only.
That the Federal Republic of Germany also happens to disagree with a STATEMENT BY PROFESSORIUPHAGEN 71
neighbour on another side, the Kirigdom of Denmark, on the location of
another boundary line, that Iietween-theshelf area appertaining to the Federal
Republic and the shelf area appertaining to the Kingdom of Denrnark, is, from
the legal point of view, entirely irrelcwantfor the present dispute between the
Federal Republic and the Kingdom ci€the Netherlands.
Indeed, when the Nether1;inds Government presented its Note Verbale of
21June 1963to the Governrnent of the Federal Republic (the German text isin
Annex 2 of the Memoriais and the Enj:lislitranslation in Annex8of the Nether-
lands Counter-Mernorial) in which :it itiformed the Federal Republic of its
opinion regarding the location of the boundary line between its continental
shelf and that of the Federal Republic, the Netherlands Government was, at
that moment, unaware of the situation ;is between the Federal Republic and
theKingdom of Denmark,
Actually it appearsfrom the Note Verbale of 10September 1964,reproduced
as Annexes 1 and 1 A of the Memorials, that only more than a year after the
receipt of the Netherlands Note Verbale of 21 June 1963the Federal Govern-
ment invited the Danish Governmeni. to negotiate on the boundary question.
In the meantime, bilateral talks anri negotiations had taken place between a
German delegation and a Netherlands delegation. These bilateral negotiations
were cornpleted before the I'ederal [Government issued its invitation to the
Danish Government.
Asappears frorn thejoint niinutes of4 August 1964,reproduced as Annexes4
and 4 A of the Mernoriais, the bound;iry dispute betweenthe Federal Kepublic
of Germany and the Kingdom of tlie Netherlands, now submitted to your
Court, had, at that time, already fully rnatured. Then, as now, the Netherlands
considered that also the furttier course of the common boundary line, beyond
the 54th degree of latitude, is deternzined by application of the pnnciple of
equidistance. Then, as now, the FedeitalRepublic held a different view.
The bilateral character of the delimitation question is emphasized by the very
proclamation of the Federal Government concerning the exploration and
exploitation of theGerman continental shelf,dated 20January 1964,reproduced
in Annexes 10and IO A of the Netherliinds Counter-Mernorial.Itithere stated:
"lm einzelnen bleibt die Abgrenzung des deutschen Festlandsockels
gegenüber dem Pestlandsockel a.usv~artigerStaaten Vereinbarungen mit
diesen Staaten vorbeha1ti:n."
Or, translated into English:
"The detailed delimitation of the (3erman continental shelf vis-A-visthe
continental shelves of otlier States will remain the subject of international
agreements" (plural!) "with thosc:States."
Indeed a bilateral agreement was concluded between the Federal Republic
and the Netherlands on the delimitation of the continental shelf, though this
agreement only covered the éoundap lirie up to the 54th degree of Iatitude.
Certainly, atthe end of the bilateral iiegi~tiations,whichresulted in the initia&
ling of the draft of the agreement just mentioned, the German delegation
announced the intention of thi:Federa'lRepublic to bring about a conference of
al1States adjacent to the North Sea, an intention the Netherlands delegation
simply took note of.
The Federal Republicapparentty lat'zrgaveup this intention. Stilllater, at the
end of 1965,the Federal Republic instigated tripartite talks between the three
Parties now before your Court. But these talks were rather concerned with the
CO-ordinatedhandling of the two bilateral disputes.72 NORTH SEACONT~NENTAL SHELF
Incidentally, the two Aide-Mémoiresof 8 December 1965,to the Danish and
Netherlands Embassies-the full text of the Aide-Mémoire to the Danish
Embassy is reproduced in the Danish Counter-Mernorial, 1, pages 165-166-
refer to further bilateral negotiations with regard to the delimitation itself, and
propose tripartite negotiations only on the procedure of settlement, by arbi-
tration, of the two disputes. In fact the tripartite talks ended in the drafting of
the two separate special agreements.
Ail this is not merely a matter of formalities, but reflectsthe very ofothe
question of substance now submitted to the Court, as my learned cotleague,
Sir Humphrey Waldock, will later expose to the Court.
Indeed, Mr. President, this bilateral approach is not only in conformity with
the whole philosophy of the rules of international law relating to boundaries,
and with your permission, Mr. President,1 wili elaborate this point in a Iater
stage of the Oral Proceedings, but is aiso more particularly in conformity with
the wording of Article 6, paragraph 2,of the Geneva Convention on the Con-
tinental Shelf.
In its Note Verbale of 21 June 1963,the NetherIands Government communi-
cated its viewthat the part of the continental shelf of the North Sea over which
it exercises sovereign rights is delimited to the east by the equidistance line
beginning at the point where the thalweg in the mouth of the Ems reaches the
territorial waters1 recall that this Note Verbale is reproduced in Annex 8 of
the Netherlands Counter-Mernorial.
The Federal Republic of Germany, in its reply to this Note Verbale-the
replycan be found in Annexes 9 and 9 A of the Netherlands Counter-Mernorial
-declares to hold the view that "there are historical reasons and other special
circumstances" which justify the adoption of a delimitation line different from
that indicated by the Netherlands Government, and proposes bilaterai nego-
tiations, and "on the position of the boundary line inthe area of the continental
shelf".
The Netherlands Government subsequently accepted the viewthat there are
special circurnstances in the mouth of the Ems, whichjustify a deviation fora
particular stretch of the partial boundary line from the equidistance line.
The nature of this special circumstance, and thextent to which it justified a
deviation from the true equidistance line, have ben described in paragraphs 29
and 30of the Netherlands Counter-Memorial. This special circumstance clearly
concerns, and concerns only, the relationship between the two countries. The
same istrue for the deviation from the equidistance linejustified by this special
circumstance, to wit: the extension of the Iine, which is not a State boundary
line, determined in the Supplementary Agreement of 14 May 1962 to the
Ems-Dollart Treaty of 8 April 1960,both bilateral treaties.
The particular regirne of the Ems-Dollart, laid down in the bilateral agree-
ments just mentioned, is, itself, of course, closely related to the geographical
realities of the coastlines of two States in this particular region.
. Asthe map intheNetherlands Counter-Mernorial' clearlyshows,the German
island of Borkum and the low-tide elevation near to it, called Hohe Riff, are
lying off the Coastof the Netherlands mainland.
This geographical fact greatly influencesthe locatioof the equidistance line
as between the two countries. The map 1just referred to only shows the in-
fluenceof the low-tideelevation,the Hohe Riff, on the equidistance line, but it is
easy to seeat a glancethat the equidistance line woulbe located much more to
the east of the lines indicated on that map, if not only the low-tide elevation,
Seemap in back pocketof Volume 1 (fig. 2). STATEIUENTBY PROFESSORRIPHAGEN 73
Hohe Riff, but also the Gerinan islaiid of Borkum, which lies off the coast of
the mainland of the Netherlands, were discarded.
How much more to the east the eqliidi:jtanceline would then run can be seen
on a map (seep. 74, infra)wehaveprepared for theconvenienceofthe Court and
whichhas beendistributedl. 1have a llow-up of this map here and perhaps the
Court would take a look at the influence the island of Borkum, lying off the
coast of the mainland of the Netherlarids, hason thelocation of theequidistance
t] line,thi sine beingthe actualequidistsncr:Iineampted beiweenthe Parties and
that Iine being the equidistance lina:it would be if this off-shoreisland would
not have been taken into account.
The Court will,no doubt,note the close similarity betweenthis map and the
map presented by the Federd Repubiicsiifthe equidistance line between Haiti
and Santa Domingo (see p. 28, sup.ul.
Mr. President and Membei'sof the Court, there is one srnallpoint in the oral
argument of mylearned colle~gue,Professor Jaenicke, on which 1feel bound to
comment in this introductory staternent, since it specifically relates to the
Kingdom of the Netherlands.
The Agent of the Federal Republic has thought fit to distributea note by a
Mr. Werners, which was published in a Dutch weekly legal periodical, the
Ne~herlandsJuristenblad, together with a map, which does not figure in that
periodical, but was apparently prepared by Ouropponents themselves.
By producing this note the Agent of the Federal Republic, and I quote his
own words according to the provisiona1verbatim record of the second day, on
page 49, supra:
"... just wanted to show that the Kingdom of the Netherlands does not
apply such a narrow inti:rpretation ro the special circumstances clausein
this case.. ."
Thereby, the Agent of the Federal Republic is more or less suggesting that
the Kingdom of the NetherIands invokes. in this area of the world, other rules
and principles of international law than it invokes in the North Sea in the
present dispute, or at least, interprePthese ruIes differently according to its
convenience.
Now, Mr. President and Members of the Court, while itis undoubtedly true
that the Kingdom of the Netlierlands is responsible for the foreign relations of
Surinam, one of its component parti;, it is, fortunately, not responsible for
everythingthat is written in books and periodicatspubIishedwithin itsterritory!
Mr. Werners, the author of this note, is in no way a spokesman for the Govern-
ment of the Kingdom of the :Netherlands.
There is little doubt that in Surinam itself, the country of oriofnMr. Wer-
ners, it is sometimes advocated that, aithin the framework of the settlernent of
various other boundary quesi;ions,including questions reIating to part of the
land boundary, a line tunning IO degrees eastwards of true north should be
estabIished byagreement betweenthe ICingdornof the NetherIands and Guyana
as aconvenient boundary lini: betweeilthe continental shelves concerned.
But, Mr. President andMembers of the Court, the Kingdom of the Nether-
lands, responsible for the foreign relationsofSurinam, has never laid a legal
claim to such boundary line, nor everihas it as yet made any proposa1 to the
Government of Guyana relating to the e:stablishmentby agreement of a con-
venient boundary Iine on the continental shelf adjacent to Surinam.
Mr. President, 1 do not think that Itneed to spend more of the time of the
'SeeNo. 45, p. 388, infra.74 NORTH SEA CONTINENTALSHELF
North Seo
GERMANY
- .- NETHERLANDS
0 r a &hm ARGUMENT OF SIR HUMPHREY WALDOCK 75
Court to comment on Mr. Werners' a.rticle,which is clearlyso totally irrelevant
to the present disputes.
Mr. President and Members of the Court, having in this introductory
statement recalled a few characteristics of the relationship betweenthe Federal
Republic of Germany and the Nethenlands and between their respectivecoast-
lines,1 may now indicate the order in which we-that is the Agent for the
Kingdom of Denmark and 1,myself,as .4gent for the Kingdom of the Nether-
lands-would like to present out coinmon arguments. With your permission,
Mr. President, Sir Humphrey Waldock will first deal with certain of the legal
issues on which your Court is called upon to pronounce in the two disputes.
Subsequently, Mr. President, we wou~ldsuggest that you allow me further to
develop the views expressedin Chapti:r1 of our Cornmon Rejoinder and finally
permit my colleague Mr. Jacobsen to deal with the question of special circum-
stances.
ARGUMENT 43F SIR HUMPHREY WÀLDOCK
COUNSEL FOR THE GOVEILNMENTSOF DENMARK AND THE NETHERLANDS
Sir Humphrey WALDOCEL:Mr. P1:esidentand Membersof the Court, it is, 1
think, an uncommon experiencefor courisel to appear in this Court on behalf
of two Governments, neither of which is the Government of his own country.
Certainly,1 feelit a great privilegeto have beenasked to doson this occasion
by the Governments of Deiimark and of the Netherlands and to have the
honour of presenting to you their common argument on certain of the legal
issuesonwhich youare calleduponto proriounceinthe twocasesnow beforeyou.
We imagine that the Cour? may ha.veken as surprised as we certainly have
been about the course of the p1eadi:ngsin the present proceedings. The two
Governments for which 1appear, in their respective Counter-Mernorials and
their Common Rejoinder, have been tloing their best, in the teeth of the fiercest
opposition from the Federal Republic, to establish the equidistance-special
circumstances rule as representing the generally accepted basis for settling
disputes concerning continental shelf boi~ndaries.
Even the equidistance part of this rule, Ouropponents claim, was introduced
primarily as amethod of achievingari equitable apportionment,as you will see
on page 36, supra, of the record for the second day. The specialcircumstances
clause, as you will see on page 46, ::upra, of the same record, they claim is
designedto cover "a11caseswherethe exigenciesof an equitable apportionment
would require its application". One might therefore have thought that the
Federal Republic would have givenit!;wliole-hearted support in this caseto the
principles in Article 6 for wtiiwe have so earnestly contended.
We, on our side, think that the equidistance-special circumstancesrule was
introduced as a method of achieving the equitable delimitation of boundaries
in the context of the established rules governing the delimitation of maritime
sovereignty. We take strong c:xceptiorito Ouropponent's notions of equity and
to their interpretation of the i:quidista.nce-specialcircumstancesrule. But \vedo
not dissent from the view that, evi:n when correctly interpreted, that rule
provides the legal basis for arriving at an equitable delimitation of the con-
tinental shelinthe light ofthe geogriiphicalfacts. On the contrary, we think it
manifest that the Committee of Experts, the International Law Commissionand
the States at theGeneva Conference, includingthe Federal Republic,nfereright
in regarding the equidistance priiiciple as intrinsically the rnost appropriate
method of setting about achieving sui:ha.nequitable delimitation. And we also
recognize that the special cirt:umstant:esclause is designedto cover soine harsh76 NORTH SEA CONTINENTALSHELF
inequities that may arise from certain exceptional types of geographical facts.
To cut the rnatter short, Mr. President, the equidistance-special circumstances
rule would seemto offerthe Federal Republic a fullysuficient bais for present-
ing to the Court any considerations which may properly be advanced insupport
of a claim that the equidistance principle is not legally the applicable principle
for delirniting its boundary vis-à-vis the Netherlands or vis-à-vis Denrnark.
What happened? In the written pleadingsthe Federal Republic did its utmost
to run the equidistance-special circurnstancesrule right outof the case, denying
its application to the Federal Republic and trying by every possible argument
to undermine its authority. In the Memorial no trace whatever of special
circumstances in the Federal Republic's subrnissions; in the Reply, under
pressure from us,just a shy,aimost apologetic, quite unexplained little glint of
special circumstances in its revised submissions.
At these hearings, Mr. President, you have had the same full-blooded on-
slaught on the equidistance-special circumstances rule. Only at the end of the
learned Agent's address under further pressure from us in the Rejoinder did
you hear the Federal Republic grudgingly explain to us for the first time why
and how it conceivesthat it rnay perhaps have a case of special circurnstances.
We have been accused again and again in the written pleadings of trying to
impose the equidistance principle upon the FederaI Republic. But if anyone is
trying to impose anything on anybody, Mr. President, in this case it is the
Federal Republic who is trying to impose on us that monstrosity of a Trojan
sea-horse,the coastal frontage, whollyunknown to the law.Wehavethroughout
been invitingthe Federal Republic todo battle on the basis of the equidistance
principle versus special circumstances rule and to persuade the Court, if it can,
that it really has a case for invoking specialcircumstances whichjustify another
boundas. than the equidistance line. But it has been like drawing blood out of
a stone to get the Federal Republic to state its case on this central issue in the
proceedings.
Mr. President and Members of the Court, there can be only one rational
explanation of the Federal Republic's conduct of its pleadings.'It had no
confidence whatever of being able to show that its case fallswithin the ambit of
the exception of special circurnstances provided for in the Geneva Convention.
We think that the Federal Republic had every reason for that lack of con-
fidence in its right to invoke the special circumstances clause. For thisisnot a
case of specialcircurnstancessuch as isenvisaged in the Convention. This caseis
simply an atternpt by the Federal Republic to reconstruct its own geographical
Coastin order to claim areas of the continental shelf which nature hasnot given
to it, jusas in a rather sirnilarway nature has been even Iesslavish to Belgium
and, above all, to Sweden in its relation to the North Sea.
We feel that the Court will have been no less surprised at the complete
frankness with which our opponents have asked the Court at these hearings to
abandon the accepted law, to abandon the Special Agreements, to abandon its
judicial function and to legislate ad hoc for this single particular case. Do we
exaggerate, Mr. President? 1 do not think so.
The Court will recall that on the second day the learned Agent said-it is on
page 36, supra-that he must reject what he described as our accusation that
the Federal Republic was asking the Court to recognize the coastal front and
sectornotions as principles or rules of international law. That is not, in fact,
quite how we put it in the written pleadings, We rather charged the Federal
Republic with not having the courage to introduce these notions into its
submissions because it knows that they have no basis whatever in existing
maritime international law. ARGUMEIiT OF SIRHLTMPHREYWALDOCK 77
At any rate, in that conte:utour learned opponent said: '
"In our written pleadings we have. made it plain from the beginningthat
criteria of this sort were not principles or rules of general application.
We regard them only as a standard of evaluation as to what method of
delimitation would beequitable iunderthe special geographical situation in
the North Sea."
True, he explained on the samepiige that apportionment by sectors on the
basis of the coastal front notion isa "nai.ural Consequenceof the application of
the continental shelf concept to the special geographical situation prevailing
between the Parties in the North SI:^".Then, having said that geographical
configurations differ from each other-a point of which we may suspect the
States at the Geneva Conference wese not unaware-he wenton:
". .. and each situation may cal1for a new appreciation of special factors
that have to betaken itito accoiint. It is therefore not surprising that the
standard which is called for in the concrete case of the North Sea between
the Parties may have no precedents in other parts of the world. Therefore
the absence of such precedents is not an argument and cannot be an
argument against the propriety ciftfiis standard." (Supra, p. 37.)
That, Mr. President, is quite stronl: meat for anyone accustomed to think in
terms of law. But there ismare to corne. On page 41, supra, the Iearned Agent
returned to the point :
"Here again, [he said] 1 musi. stress the fact that we do not want to
propose a rule of generiil applicability to the effect that any State in any
geographical situation may claima share of the continental shelfequivalent
in size to the length of its coasi..We only suggest that in this particular
geographical situation, where the continental shelves of States constitute,
by virtue of their geography, convergingsectors, the breadth of the coastal
front would be a proper standard of the size of the share that each State
should get if our equitable apportionment were to be achieved.
Now, what is al1this, Mr. 'President,but a request to the Court for an ad hoc
decision allowing Germany to achieve her ambitions in the North Sea and
depriving Denmark and the Netherlsnds of their right to have the generally
accepted principles and rules of interriatii~nallaw applied to the delimitation of
their continental shelves? The Federal Republic presents this as equitable
apportionment. To us it has more th!: look of simple opportunism.
My learned friends, the two Agents, will each be asking the Court to look
more closely into these aspects of thi:Fcderal Republic's caselater on. 1shall
therefore confine myself to ~iointiiigout briefly how extrernely artificial is the
Federal Republic'scase.
First, the Court will certainly have observed the painful anxiety with which
the Federal Republic seeksnowto shilt out of the Court's mind the continental
shelves of al1the other North Sea Siates, in order to reduce the focus to the
so-called south-east corner of the North Sea.
Secondly, in order to create a placisiblearea for the Court's ad hoc venture
into equitable distribution, the Federal Republic has notwithstanding to bring
into the picture the boundaries of Denmark and the Netherlands with two
other North Sea States, boundaries wtiich are no concern whatever of the
Federal Repubfic.
Thirdly, the so-called particular geographical situation, with continental78 NORTH SEA CONTINENTALSHELF
shelves constituting converging sectors, is far from unique. In the North Sea,
you only have to look westwards to the Netherlands, Belgium and the United
Kingdom to find another such situation. In the northern part of the Persian
Gulf there is yet another such situation, and one infinitely more complex. In
both these cases we have already some precedents-precedent s of the clearest
kind of the application of the equidistance principle. So, not only is the Federal
Republic's case not unprecedented, but the decision which it requests frorn the
Court conflicts with the precedents. I mayadd that, ifconverging sectors is the
criterion, there would seem to be plenty of other convergences inotherparts of
the world.
Fourthly, we ask, Mr. President, whether anything would ever have been
heard of coastal frontages and converging sectors if nature had advanced the
German North Sea coast just a little farther to the north. Does not this case
arise simply because nature and history have been less generous in the coast
which they have assigned to the Federal Republic, asalso to Belgium and
Sweden in relation to the North Sea, and indeed to many others elsewhere in the
world?
Fifthly, the very terms in which the so-called coastal front criterion was put
to the Court on page 41, supro, of the record of the second day show the
completety ad hoc and opportunist character of the Federal Republic's thesis.
Our opponents, Mr. President, have askedyou to look at many diagrams, but
they did not draw you in black and whitetheir version of the coastal frontages.
The learnedAgent seemed to have quite an open mind as to what your decision
should be concerning the coastal frontages. "But you may take what you like",
he said on page 41, supra. Take it or leave it is what, Mr. President and Mem-
bers of the Court, he seems to be saying to you with regard to his various
coastal frontages. But what has that to do with the principles or the rules of
international law or with judicial settlement according to law?
1 must not overlook that Our opponentshave sought to encouragethe Court
to embark on its ad hoclegislative task by referring toa statement in an Order
made by the Permanent Court in the Free Zones case reported in P.C.I.J.,
Series A, No. 22, at page 13. Observing that judicial settlement is simply an
alternative to the direct and friendly settlement of international disputes
between the parties, the Court there said: "Consequently it is for the Court to
facilitate, so far as compatible with the Statute, such direct and friendly settle-
ment." That was the quotation refied on by my learned opponent.
Now the point to which that statement was directed was rather different from
the point concerning the Court's function which is raised in the present case.
There the Court was being asked by both parties to depart from its normal
procedure and to indicate to the parties, in advance of any judgment, the
results of its deliberations, with a view to facilitating friendly settlement. More
relevant in the present connection, we think, is another pronouncement of the
Permanent Court at a later stage of the same Free Zones case reported in
P.C.I.J., Series A, No. 24, at page 10. In effect, France had cfaimed that the
Court could and should settle the regime to be applicable in the Free Zones
without strict regard to the existingrights of the Parties. Switzerland contended
that the Court was authorized to settle it only on the basis of then existing
rights, in which context the Court said:
"Even assuming that it were not incompatible with the Court's Statute
forthe Parties to give theCourt power to prescribe a settlement disregard-
ing rights recognized by it and taking into account considerations of pure
expediency only, such power would be of absolutelyexceptional character, ARGUME:ST OF SIBHlJMPHREY WALDOCK 79
could only be derived -frorn a clear and explicit provision to that effect,
which is not to be found in the special agreement."
There is clearly not a word in th<:Special Agreements in the present cases
which could authorize the Court tcdt:cide uponanyother basis than the existing
legai rights of the Parties. For the Court is specifically asked to decide the
applicable principles and rules of irtternational law to govern the respective
delimitations.
There is one further general 0bst:rvation which 1 should like to make in
these introductory comments on the Federal Repubtic's case.
Ttseems to us, Mr. President, that the concept of the equitable apportionment
of areas, as it has been developed by Our opponents, is really an atternpt to go
behind the work of the Gent:va Conf'ereiiceand in another form to bring back
into the law which resulted fi-omthe Conference part of its own rejected thesis
of the resources of the continental shelf as common. It asks you not to approach
this case from the point of view of i.he delimitation of the exclusive rights of
the coastal State as contemyilated in the Convention. It asks you to approach
the case from the point of view that .thearea enclosed between the armsof the
Danish-Norwegian boundary and the Netherlands-Belgiitn boundary are, in
principle, a common area ?n be shared out equitably between the Federal
Republic, Denmark and the Nether1;tnds.
This approaçh we believe to be completely opposed to the system envisaged
at Geneva. We cannot see any trace in the Convention, and we cannot recall
any trace in the records of the Confei:ence, of a concept which would makethe
area in which the Federal Republic is entitled to delimit its boundary in any
way dependent on the positions of the boundaries delimited between Denmark
and Norway or between the Netherlands and Belgium. That is why we feel that
the FederaI Republic is really asking yoti on this point to undo to some extent
the decisions of the Conference and in some measure to rehabilitatc its own
rejected thesis.
In order to encourage the Court io iindertake this revising task, our opponents
confronted you with the spectreof thi: av~fulconsequences which rnay follow in
the deep oceans if you apply the equidistance-special circumstances rule inthe
manner intended by Article 6. Here again, Mr. President, they were, if more
discreetly, inviting you totake the 1e~:islator'sand not the judge's view of your
task.
We, of course, recognize that the general problem of the regime of the deep
oceans is an important one, and my friend, the learned Netherlands Agent, will
speak more of it later. But, awe have pointed out in our written pleadings, it is a
distinct question which arises out of the open-ended definition of the external
limit of the continental shelf; and it ij a question which is already under active
consideration in the United Nations with a view to a possible solution in a
law-making convention.
Furthermore. it is a question of lirniting the exclusive rights of al1 coastal
States in the deep oceans, not of re-adjusting the rights of coastal States as
between themselves. Nor will it have escaped the Court that the question does
not touch the North Sea at iill-tliat sea which our opponents so often say is
not as other seas.
If 1may, Mr. President, 1 will now outline forthe convenience of the Court,
in a fetv words, the way in which we put our own case. We rest iton three
separate and autonomous grounds.
First, we contend that if the prirnciples and rules embodied in Article 6,
paragraph 2, of the Conveiition art: ex.cluded from consideration, then the80 NORTH SEA CONTINENTALSHELF
continental shelf boundaries of the respective Parties are to be determined on
the basis of the exclusiverights of each Party over the continental shelf adjacent
to its coaçtand of the principle that the boundary is to leave each Party every
point of the continental shelf whichlies nearer to its coast than to the coast of
any other Party.
Secondly, we contend that the principles and rules embodied in Article 6 of
the Continental Shelf Convention are an expression of the generally accepted
law governing the delimitation of continental shelf boundaries; that as coastat
States we are competent to delimit the boundaries of our continental shelves;
that delimitations made bona fide in application of the principles and rules in
Article 6 are prima facie valid erga ornnes; and that the Federal Republic is
therefore bound to respect Our delimitations unless it can establish a better
legal ground of claim to any areas comprised within our delimitation.
Thirdly, wecontend that the principles and rules embodied in Article 6 have,
today, the character of general customary law and have become such in a
manner which renders them binding on the Federal Republic.
The bst of these contentions, Mr. President, is the basis of Ouradditional
submission presentedin our Common Rejoinder, whilethe second and third are
the basis of the three submissions presented in OurrespectiveCounter-Memori-
als. 1 have put Our contentions in the order in which 1 propose to deal with
them later in my address. This order, if it does not correspond with the order
of Oursubmissions, seemsto us the most logical,for the legalconsiderations on
which the first contention is founded are of a fundamental character and also
underlie the other two contentions. Indeed, the second and third contentions
may beregarded asthe application of these legalconsiderationsin the particular
context of the continental shelf.
The Court a~o~irnedfrom 4.15p.m. ta 4.35p.m.
When we adjourned, Mr. President, 1 had just listed the three contentions
that we put to the Court on the main legal issues in the case. I should like,
having done that, to take the opportunity of relieving Our opponents of an
anxiety which the learned Agent seemed to express on pages 43 and 44, supra,
of the second day's record, in regard to our first contention on which, as 1said,
our fourth submission is based. He interpreted our silence in this submission
on the point of specialcircumstancesas meaning that weexcludedany possibility
of special circumstances being invoked outside the principles and rules ex-
pressed in Article 6.This is not so, Mr. President. We recognize that the ex-
ception of special circumstances may operate in connection with Our first
contention in the same way as in connection with Ourother contentions.
If we did not mention special circumstances specificallyin Our fourth sub-
mission, it wasbecause we do not think that the facts provide any justification
whatever for the operation of the exception in the present cases. In truth,
Mr. President, we felt that in our submissions concerning Article 6 we had
already done enough in the way of providing our opponents with the necessary
basis for presenting the Federal Republic's arguments on special circumstances
which they were so very reluctant to advance themselves.
Having cleared the ground a Iittle, Mr. President, by these preliminary
observations, 1now propose to enter upon my main argument, and 1feel that
it may be convenient to the Court if 1 indicate in broad terms the order in
which 1have in mind to present it.
1propose to begin by a brief examination of the Special Agreementsand then
of the Partial Boundary Treaties. After tha1 shalltouch upon the legalattitudes ARGUME:~ OF SII;HUMPHREYWALDOCK 81
adopted by the respective E'artiespirior to the proceedings. Next 1 shall deal
seriatiniwith the three contentions. oii which Our own cases are founded,
taking up such of Ouropponents' crii:icisms asseernsuseful. 1 shall then turn to
certain aspects of our opporients' ca:seas an introduction to the more detailed
arguments of my learned friends, the Agents for the two Governments for
which 1appear.
I turn therefore, Mr. President, ta the Special Agreements, and the Court will
perhaps recall that we areindebted to our opponents for having reproduced the
text of one of these agreements in the introduction to the Memorial.
In the case between Denmark and the Federal Republic, the question
submitted to the Court for its decision is the one specifiedin the SpecialAgree-
ment concluded between thase two o~untrieson 2February 1967,namely :
"What principles and rules cif international law are applicable to the
delirnitation as between the Parties of the areas of the continental shein
the North Sea which appertain to e;ichof them beyond the partial bound-
ary deterrnined by the a.bove-metntionedConvention."
That is the question formulated in the Special Agreement and it is the only
question whichhasbeenput i:othe Court by Denmark and the Federal Republic.
Furthemore, when the Danish-Cierrnan Compromishere speaks of "the
delimitation as between the Parties cifthe areas of the continental shelf in the
North Sea which appertain tireach ol'them", it is perfectly clear that the words
refer exclusively to the delimitatiori as between Denrnark and the Federal
RepubIic of the areas which appertain respectively to each of these two coun-
tries. And it is no lessclear that wheii the Compromisspeaks of areas "beyond
the partial boundary deternlined by the above-rnentioned Convention", the
words refer specificallyto tht:areas of continental shelf in the North Sea which
appertain respectivelyto Denmark and the FederalRepublic beyond the inshore
boundary already fixed bytliesetwo countries bilaterally in their Convention
of 9 June 1965.
In short, the wording of the Conipn7misunequivocallylimits the question put
to the Court to the nrinci~lc:~and rules of international law a~~licahieto the
delirnitation bilateraily asAbetweenDenmark and the Federal ~epub~icof the
areas of continental shelf which appertain to each of them further to seaward
of the most northerly point of the existing 1965 partial boundary; and the
Court can now seeon the big map behind me the places of the terrninals of
the partial boundaries of the two co~intries.
The Compro~nicsontains no mention of a request to the Court to determine
the principles and rules by which an area.of the North Sea is to be distributed,
shared out, betweenthe three States, Ilenmark, the Netherlands and the Federal
Republic.
The terms of a Special Agreement. as has repeatedly been held by the Per-
manent Court and by this Court, define the task entrusted to the Court in a
manner binding both upon the partie!;and the Court. In consequence, in a case
instituted by a Special Agree:rnent.it is iiot the submissions of the parties but
the terms of the Agreement which deterrnine the questions for decision by the
Court. This was emphasized by the P'ernianentCourt in the Lofuscase, where
it said-the case is so famous 1need not i-eferin detail to it-P.C.I.JSeries A,
No. IO, at page 13:
"The Court, having abtained cognisance of the present case by notifi-
cation ofa special agreement coricluded between the Parties in the case, it
See footnote 1 on page 32.82 NORTH SEA CONnNENTAL SHELF
is rather to the terms of this Agreement than to the submissions of the
Parties that the Court must have recourse in establishing the precise points
which it has to decide."
Sirnilarly,having declaredin theRive rder Commissian case rhat the questions
on which it was asked to givejudgment were quite clear, the Permanent Court
said: "These questions cannot be changed or arnplified by one of the Parties,"
That, Mr. President, ison page 18of theJudgment in P.C.I.J.,Serirs A, No. 23.
Other cases in which pronouncements to the same general effect weremade are
rnentioned in Rosenne'sLaw andPractice of'theInfernational Court, Volume II,
page 586, footnote 3.
The Federal Republic, it follows,cannot unilaterally, by its own submissions
change or amplify the question which the Compromis of 2 February 1967
empowers the Court to decide.
1 now turn, Mr. Piesident, to the other case in which the Parties are the
Netherlands and the Federal Republic. This case also was referred to the
Court by notification of a SpecialAgreement and the Special Agreement, apart
from the differencein the Parties and the mention of a diîTerentpartial bound-
ary, is couched in precisely the same terms as those in the other Co~nprornis.
Accordingly, mrrtatismittandis,the points which I have just made in regard to
the other Compromis apply in the sarne manner and with precisely the same
force in this case.
In short, the question put to the Court in the second case is exclusivelythe
delimitation as betweenthe Netherlands and the Federai Republic of the areas
of continental shelf in the North Sea which appertain to each of them beyond
their existing partial boundary fixed ia bilateral Convention of 1 December
1964. And this question the Federal Republic again cannot change or amplify
by any melbelyunilateral declaration.
The three Governments, it is true, drew up a protocol in which they agreed
that after the notification of the two Special Agreements to the Court they
would askfor the two cases to bejoined. But the protocol, Mr. President, did
not alter in any way the nature or scope othe questionsformulated in the two
Special Agreements.
In our view, therefore, the legal position is crystal clear. There are two
individual cases before the Court, which concern the delimitation of two
different continental shelf boundaries between two different pairs of States. In
the first, the Court is called upon to decide the principles and ruIes of inter-
national law applicable to the delimitation of the Danish-German boundary
in one designated part of the continental shelf in the North Sein the second,
the Court is called upon to do the same thing with respect to the Netherlands-
Geman boundary in another designated and quite distinct part of the con-
tinental shelf in the North Sea. In consequence,it is, from a purely procedural
point of view, perfectlyopen to the Court to prescribe certain principles and
rules as applicable to the delimitation of the Danish-German boundary but
somewhat different principles and rules as applicable to the Netherlands-
German frontier in the event that the geographical facts might involve a
different interpretation of Article 6.
We do not, in fact, think that there is any elernent in either case which could
lead the Court to prescribe different principles for the delimitation of two
boundaries. But this is only because the Danish and the Netherlands Govern-
ments believethat in their respective cases it is the general principles and rules
of international law whichare applicable, and because they areof one mind as
to what those general principles and rules are and their proper interpretation
and application. ARGUMENT OF SIR.HUMPHREY WALDOCK 83
If 1 may seem to labour *alittle the precise formulation of the two Special
Agreements and their application to two different and individual cases, 1 ask
for the Court's indulgence. For these questions are at the very root of the
differences between the Federal Republic and the two Governments in the
present proceedings, as is apparent from their respective submissions and from
the arguments which have been pres8:nted to the Court.
The submissions of the Danish Government are addressed directly and
exclusively to the question which the Danish-German Compromis has entrusted
to the Court's decision, asare also those of the Netherlands Government to the
question in the Netherlands-Gerrnan Compromis. In each case the subrnissions
of the Government for which 1 appear concern the principles and rules of
international law applicable to the deliniitation,as between it and the Federal
Republic, of the areas of the continerital shelf in the North Sea which appertain
to it andto theFederal Republic beycindtheir existing inshore partial boundary.
The submissions of the Federal Rcpublic, on the other hand, are addressed,
or at any rate, one must now say, prirnarily addressed, to a quite different
question: to supposed principles for apportioning the continental shelf in the
North Seaamong the coastal States. In the Mernorial this wasmade very clear,
both in the submissions anci in the conclusions which preceded them. In the
Reply, the submissions, although elal~orr~ted,still demand from the Court not a
delimitation as between two States of the areas appertaining to each State, but
an equitableapportionment ofan areii,unspecified, ofthe North Sea continental
shelf between the three States. Now this demand appears to us to travel outside
the scope of the Special Agreements.
Nor, in Ourview, isit made any les, incompatible with the Special Agreement
by reason of the fact that at theprescrithearings, as 1have already mentioned,
the Federal Republic hasnow appeared to define quite precisely the area which
itasks the Court to apportion. 011 the contrary, this only renders even clearer
the fact that the demand v~hich the Federal Republic has submitted to the
Court does not concern principles of'delimitation but a request for the appor-
tionment of an area not defined in the Special Agreements, and parts of which
are wholly outside the areaj through which the partial boundaries are to be
completed.
The Federal Republic has complained, in Chapter 1of the Reply, that, in its
view, we are rnaking:
"the rather artificial vei.baI distinction between the 'delimitation' and the
'sharing out' of areas of the coritinental shelf, although it is evident [they
say] that any delimitation between two States necessarily allots each of
them a certain share of the shelïso divided". (1,p. 394.)
But the two Government~ for which 1 appear, Mr. President, had already
anticipated and answered this argtimi:nt in Chapter 1of their Counter-Memori-
als, where they pointed out i:hat ttie poitit is far from being merely an artificia1
verbal distinction and goes to the whole substance of the dispute. You will find
that in paragraph 50 of the Danish and paragraph 44 of the Netherlands
Counter-Memorials, and the point is taken up again in paragraph 18 of the
Common Rejoinder.
The process of determiningthe boiindary between the continental shelf areas
appurtenant to one coastal Stateand the continental shelf areas appurtenant to
another coastal State is fundamentally different from the process of sharing
out a continental shelf arnorigst a number of coastal States.
At any rate, the two Spec.ia1Agreements to which the Federal Republic has
put its hand speak of delirnitation, and the word "delirnitation" is a well-84 NORTH SEA CONTINENTAL SHELF
established legat expression. The Dictionnaidr eela terminologie du droit
international, at page 195,gives as the general rneaning of "délimitation":
"Action de délimiterà leurs points de contact les territoiresde deux
Etats, de déterminerla ligne qui les sépare."
And the other meanings there given for the word denote even more strictly the
process of giving definition to the boundary between the existing territories of
two States.
Moreover, the delimitation is stated in the Special Agreements to be not of
areas to be allocated to the coastal States in question but of the areas of con-
tinental shelf which appertain to each of them, and these words can only be
understood as referring to areas which in principle are existing appurtenances
of one or theother of the States concerned. In short, these words unequivocdly
confirm that the Special Agreements are concemed with the determination of
boundaries and not the distribution of submarine areas or resources.
Even if one stops there, Mr. President, the natural rneaning of the words in
the Compromis, in Ourview, leaves no room for argument. The principles and
rules with which the Court ishere concerned are exclusivelyprinciples and rules
governingthedelimitation of the boundaries betweenthe areas of the continental
shelf appurtenant to each State in question.
But the Special Agreements do not stop there. As 1havealready emphasized,
they designate as the zones to be delimited the areas which appertain to each
State beyond the already existing partial boundary. In other words, they make
it clear that what the Court isconcerned with in each case is the completion of
thk delimitation, already begun, of the continental shelf boundary between the
States in question.
Distribution of the continental shelf between the coastal States by reference
to an alleged principle of equitable and just shares does not, therefore, seemto
us compatible with the function entrusted to the Court in the Special Agree-
ments, and, Mr. President, if we had ever had any doubts upon this score, they
would have been totally removed by the frank explanations of the Federal
Republic's caseat the present hearings, to which 1have already referred in my
opening observations.
As 1 then said, we consider the demand for equitable apportionment, a.
presented by the Federal Republic, to be incompatible alike with the Special
Agreements and with the judicial character of the Court.
1may add, that even if it were to beconsidered compatible with the Special
Agreements and the Court's judiciaI function, it would still, in our view, be
incompatible with the very basis of the delimitation of territorial and juris-
dictional boundaries in international Iaw. Our reasons for this view were given
in Chapter I of the Common Rejoinder and as my learned colleague,the Agent
for the Netherlands, saidinhis opening, he willbe developingthe point later in
our address.
1cannot leave the Special Agreements, Mr. President, without also recalling
a point whichwehave emphasized in our written pleadings and most recently in
paragraphs 6 and 7 of our Common Rejoinder.
This is, that both the Special Agreements expresslyrecord that the respective
Partiesare in disagreement in regard to the further course of the boundw
which could not be settled by detailed negotiations. Those are the words. This
disagreement and deadlock in the negotiations is the very basis of the Special
Agreements, the objects of which wereto obtain decision from the Court as to
the principles and rules applicable to the delimitations. We therefore think that
the final submission in the Federal Republic's Reply,by calling upon the Court ARGUMENTOF SIIt HUMPHREYWALDOCK 85
.to lay down that "the delimitatiori is a matter which has to be settled by
agreement" again travels oiltside th': terms of the Special Agreements for the
reasons which we have given, more extensively,in the Common Rejoinder.
As 1inforrned the Court, Mr. Preiiident,1 propose next to ask you to look a
little more closely at the i:wo partiai boundaries mentioned in the Special
Agreements, and then, mort: generally, at the attitudes of the respective Parties
prior to the proceedings.
1shall begin with the Nerherlands-German Treaty, since this is, in fact, the
earlier in date. The Court will find a.nEnglish translation in Annex 3 A of the
Memorial, and will there see that the Treaty, concluded on 1 December 1964,
describesitselfin itstitle and preamble as concerned withthe lateral delimitation
of the continental shelf neai the coast.
Article 1 speaks simply of "the boundary between the German and the
Netherlands parts of the continental 5;helfof the North Seaup to the 54th degree
of latitude" and specifiesthree points a:; determining the line of the boundary
to seaward from a given starting point within the territorial sea.
The three points which delimit the line of the partial boundary are al1points
equidistant respectively froin the biiseline of the Netherlands coast and the
baseline of the German coast. In short, the partial boundary is an orthodox
illustration of the rule whicli applies to the delimitation afcontinental shelf
boundary under Article 6 of the C:onvention in the absence of a contrary
agreement.
There is no trace in this Treaty of "equitable and just shares", there is no
trace in this Treaty of the breadth of the coastal front of each State as an
"objective standard of evaluation". On the contrary, the Federal Republichas,
as the learned Agent for the Netherliinds has already shown the Court, had no
hesitations or scruples about:using the Ciermanisland of Borkum and the low-
tide elevation of Hohe Riff! both oii which lie offthe mainland front of the
Netherlands, as base points for delimitiiig the partial boundary.
We make no compfaint about thxt, hIr. President, for it was in accordance
with what we believeto be the generiitrules of international law governing the
delimitation of the continental shelf. We merely note that these general rules of
international law are acceptableenough tothe Federal Republic so long as they
operate in its favour.
Annex 4 A of the Memorial also give.;the text of joint minutes prepared on
the compIetion of the draft ofthe treaty. Thesejoint minutes equally appear to
envisage the function of the treaty as sirnplythe delimitation of a boundary and
actually characterizes it as constitilting an agreement in accordance with
paragraph 2 of Article 6 clf the Continental Shelf Convention. True, they
specify that it is an agreement in accordance with the first sentence of para-
graph 2, but they nevertheless characterize itas an application of Article6.
The joint minutes recorcl the disagreement of the two delegations with
respect to the boundary lini: beyond the 54th degree of Iatitude and, in con-
sequence, their inability to "determine by agreement the full length of the
cornmon boundary on the continentzrlslielf ".
The Netherlands delegaticin,for itj part, maintained that the further course
of the boundary must also be determined by application of the principle of
equidistance.
The German delegation, on the other hand, reserved its position with respect
to the boundary line beyonti the'541 h degree of latitude, saying that the line
would not necessarily follow the sanie direction as that of the partial boun-
dary.
In addition, the German delegation announced that it was seeking to bring86 NORTH SEA CONTINENTAL SHELF
about a conference of North Sea States "with a view to arriving at an appro-
priate division of the continental shelf situated in the middle of the North Sea,
in accordance with the first sentence of paragraph 1 and the first sentence of
paragraph 2 of Article 6 of the Geneva Convention on the ContinentaI Shelf".
Precisely what the German delegation meant by an appropriate division was
not specified and, in any case, nothing more was ever said by the FederaI
Republic to the Netherlands Government about its intention to cal1 an inter-
national conference.
The Court wiH, however, again observe that the Federal Republic made its
announcement of that intention expressly within the framework of Article 6 of
the Convention.
I now turn to the Danish Treaty. The Danish-German Treaty, concluded in
June 1965, equally describes itself as concerned with the delimitation of the
continental shelf boundary near the coast, as can be seen from the text in
Annex 6 A of the Memorial. Article 1prescribes that the boundary shall run in a
straight line from a given point at the outer limit of the territorial sea to a point
in the high seas defined by CO-ordinates.This point, which is some 30 nautical
miles out to sea, is again an equidistance point delimited from the respective
baselines of the Danish and German coasts; another orthodox illustration of
the rule which applies under Article 6 of the Convention in the absence of a
contrary agreement.
The German baseline, it may be added, is here formed by the Island of Sylt,
about half of which stretchesacrossthe front of the mainland coast of Denmark.
In this case also, on completing the draft of the Treaty, the negotiating
delegations recorded their inability to agree upon the further course of the
boundary and reserved their positions in regard to the principles to be applied.
They did so in a joint press communique of 18 March 1965,the text of which is
given in Annex 8 A of the Memorial. At this time theGerman delegation made
no mention of any intention to convene an international conference "with a
view to arriving at an appropriate division of the continental shelf situatedn
the middfe of the North Sea". On the contrary, the communiqué merely states:
"The German delegation has proposed that negotiations on the further course
of the boundary be resumed in the near future." In other words, it contempIated
a resurnption of the bilateral negotiations.
1 should add that the reservation of the positions of the two Parties was
repeated in a short Protocol attached to the Treaty itself, the text of which is
reproduced in Annex 7 A of the Memorial.
So much, Mr. President, for the partial boundaries which are mentioned in
the SpecialAgreements andthe principles for extending which it is your task to
decide. You rnay, perhaps, wonder why this case hascome before you without
anything more having been heard of the Federal Republic's proposa1 for an
international conference to divide up the middle of the North Sea, and you
may think, as we do, that the most probable explanation is that the Federal
Republic, on further reflection, concluded that its ideas about an "appropriate
division of the continental shelf in the middle of the North Sea" would not
commend itself to the other North SeaStates. At any rate, the Federal Republic
clearly decided that it would be more prudent not to put these ideas to the test
in an international conference.
In order to complete the context in which the two cases come before the
Court, 1would now ask the Court to consider more generaliy the legal attitudes
adopted by the respective Parties prior to the proceedings. I can be quite brief,
as we have already drawn the Court's attention to the salient points in the
written pleadings. The main passages are Chapters 2, 3 and 4 of Part 1 and ARGUMENT OF SIIL HIJMPHREY WALDOCK 87
Chapter 3 of Part II in the Counter-lvlernorials,and paragraphs 92 and 103-107
of the Common Rejoinder.
Prior to the Geneva Conference, Iar. President, the Governments for which
1 appear both gave their general sitppilrt, as you have indeed heard, to the
proposals of the International Law C:omrnissionrecommending the recognition
of the exclusiverights of the coastal State over the continental shelfadjacent to
the Coast,as they did also 10 its proposals concerning the delimitation of the
continental shelf between opposite or between adjacent States.
On the latter point, in a Note Verbale commenting upon the Commission's
proposals in 1952, the Danish Governnient expressed the view that, where an
areahas to be divided between three or more countries, the solution should be
to refer to "planes forming the locus to the points which are closerto oneofthe
countries than to any of the others".
Moreover, it illustrated this soliition with a sketch map of Denmark's
continental shelf contiguous to her c:oastsin the North Sea and in the Baltic.
If the Court glances at that rnap, wkiichis reproduced in the Danish Counter-
Mernorial, I, page 243, it will see tha.tin the Baltic, Denmark's boundary with
the Federal Republic isalready shown on the map asfollowingan eqiiidistance
line,just asit has since been agreed betueen the two countries in their Protocol
of 9 June 1965. lt will also see that in the North Sea and the Skagerrak the
Danish boundary was alreaclyshownion the map as following an eqiiidistance
line, just as it hassince been agreed between Denmark and, respectively,
Norway, the United Kingdorn and Hcillaiid,and has been delimited by Denmark
vis-à-vis the Federal Republic. Part of it, as we have just seen, has even been
agreed with the Federal Rt:public. indeed, the North Sea part of the map
corresponded exactly with tlie Danish boundaries as they have confronted the
Court on the big map whiclithe Parties and the Court have.been usiiigduring
the hearings.
As to the Netherlands Government, cnmmenting upon the finalreport of the
Commission in a letter of 17 October 1957-and this of course was in the
records-it said :
"As in the case of the bouiidaries of the territorial se.. .the Nether-
lands Government supports the: principles embodied in article 72 with
regard to the delimitation of the coiitinental shelf."
Article72, the Court will recall, was the Commission's text of whatis now
Article 6 of the Continental Shelf Convention. Having thus endorsed the
equidistance-special circurnstances rule, it went on-and this is important:
"The Netherlands Government wi~uldlike to emphasize the necessityof
an internationally accepted ruli: for these delimitations, together with
adequate safeguards for impartiai adjudication in the case of disputes, it
will not be sufficientsimply to express the hope that the States concerned
wilfreach agreement on this matter."
At the Geneva Conference the two Governments both voted in favour of al1
the articles of the Continental ShelfConvention, and both afterwards signedthe
Convention without any reservation. Both Governments, having obtained the
necessary authority from their respective parliaments, proceeded to ratify the
Convention, again without any reservations. Denmark did so in 1963and the
Netherlands in 1966. Both have promulgated legislation concerning their
continental shelves on the basis of the Convention and both have consistently
l See footnote 1on page 32.88 NORTH SEA CON~NENTAL SHELF
applied the principles of the Convention in their agreements with other States,
including the Federal Republic, for the delimitation of continental shelf
boundaries. In the written pleadings they have likewiseconsistentlymaintained
that it is by reference to the principles embodied in the Convention that the
Court should arrive at its decision in the present cases.
Such, Mr. President, is the legal posture in which the two Governments for
which 1address you now appear before the Court.
The Federal Republic, not being a Member of the United Nations, did not
have the opportunity to comment on the work of the Commission until after
the final report had been completed. Invited to do so by the Secretary-General
jn a letter of 25 March 1957,the Federal Republic submitted its comments in a
Note Verbale of 18September 1957whichis reproduced on page 85 of Volume 1
of the Oficial Records of the Geneva Conference.
On the probIems of the continental shelf and territorial sea, however, it
merely reservedthe right tO comment at a latter stage, pleading insufficienttime
for study of theproposal. At the Conferenceitself the Federal Republic put in a
mernorandurn to the Continental Shelf Committee-the Fourth Committee-
opposing "the whole conception of the Commission's proposals for the con-
tinental shelf" and those werethe words that wereactually used by the Federal
Republic. Instead, it advocated the free utilization of the natural resources of
the continental shelffor everyone, subject only,and this is of interest, Mr. Pres-
ident, subjectonly to certain controlling righti forthe coastal State closesttothe
installations in question. The memorandum will befound, Mr. President, in the
Oficio ~lecords-of the Conference, in Volume VI at page 125.
When the Federal Republic saw that the Conference would not have its own
admittedly veryidealisticproposal, and was neverthelesssetupon adopting the
Commission'sproposals, it participated fullyin the discussionof thearticles and
in the voting. In the Fourth Committee it voted in favour of the article which is
now Article 6, and did so again at the ninth meeting of the plenary when the
article was adopted by the Conference. We have already drawn the Court's
attention, in our Counter-Memorials, to the iIluminating character of the
explanation of its vote given by the Federal Republic in the Fourth Committee.
After emphasizing that it would have preferred a Venezuekanproposa1 which
would have left the delimitation of boundaries entirely to the agreement of the
Parties, the delegation of the Federal Republic said that it had accepted the
views of the majority of the Committee, subject to an interpretation of the
words special circumstances as rneaning that any exceptional delimitation of
territorial waters would affect the delimitation of the continental shelf. In this
interpretation of special circumstances the Court will find no reference to ap-
portioning the shelf, no reference to justand equitable shares, no reference to
coastal frontages and none to what the Federal Republic calls, in the Reply, 1,
page 424, "the almost rectangular bend in the German coastline".
At the end of the Conference, it istrue, the Federal Republic voted against
theadoption of the text of the Convention as a whole. But again the explanation
which it gave of its vote is significant.Its negative vote, it said, was because it
objected tothe criterion of exploitability in the definitionofthecontinental shelf,
and because it could not support the Convention without a provision for
compulsory submission of disputes to adjudication. In short, its reservation
was concerned with the external limits of the continental shelf; not a word of
criticism or reservation with regard to the provisions for the delimitation of the
continental shelf in Article 6.
At this point, Mr. President, 1must retum for a moment to the Danish Note
Verbale of 1952and to the map depictingthe boundaries envisagedby Denmark ARGUMENTOF SIR HUMPHREY WALDOCK 89
asresulting from the principles expciundedin that Note Verbale. The map, as
you will recall, Mr. President, was more or lesswhat you see behind me depict-
ing the Danish boundaries. igow the Note Verbalewasentirelyexplicit as to the
principles which Denmark considercd should govern the delimitation of con-
tinental shelf boundaries; the median line and, in cases where three or more
States are concerned, the pn,ximity principle because that is al1that wasmeant
bythat Iocplane or locus of points;~hich I mentioned just now. Now the text
of that Note was reproduced in fiill :inthe Yearbook of the Commission, while
the map depicting Denmarls's equidist;uice boundaries was obtainable from
the United Nations Secretzriat and in any case received full publicity in the
Danish press. We stated tliese facts with some ernphasis in Our respective
Counter-Memorials, and in the Rel~lythe Federal Republic seems to have
thought it wiser to let the niatter of iown knowledge of Danish and Dutch
positions in regard to their continentai shelf boundaries pass without comment.
Instead, it made to us the surprising assertion that the Federal Repuhlic could
not possibly know in t958 that thi: equidistance-special circumstances rule
would beinterpreted byDenn~arkandthe Netherlands intheway whichtheyhave
done. Naturally, therefore,n-eagain drew attention to the Danish Note Verbale
and map and cornmented thiit the FederaI Republic had not made any sugges-
tion that it was unaware of either of these documents.
The learned Agentfor the I'ederalR.epriblicseemedclearlya littleembarrassed
'when he came to this point in his speech on the opening day, and you could
almost hear him choosing his words. He said, it is on page 25, supra, of the
record :
"It was, as you se, a rather hypothetical comment and, moreover, this
map has never been published in the official documents of the United
Nations, nor has it corneto the officia1knowledge of the German Govern-
ment."
The Court must, we feel, have been a!;str'uckas we wereby the phraseology of
this statement.At any rate, i:rit really thinkable that the Legal Department of
the Federd Republic, its Ambassadoi in Copenhagen and its delegatiun at the
Geneva Conferencewereal1 silackingin interest or so negligentin the discbarge
of their functions that the German drlegation went to the Conference wholly
unaware of the position adopted by Ilenmark and also by the Netherlands on
the question of the continentd shelf?
Nearly sixrnonths Iater-d'ter what was obviously the most careful consider-
ation-the Federal Republic changed its niind and signedthe Convention. 1 said
careful consideration, becausv it was sigi~edon the penultimate day open for
signature and it could equally well have acceded later. Now in signing, it made
a special interpretative declaration with respect to the effect of Article 5 in
preserving fishingrights, but a.gainit made no reservation nor any other form of
declaration with respect to the provisions of Article 6goveming the delimitation
of continental shelf boundarii:~.
Extensive German scientifil:exploration of the North Sea continental shelf
took place between 1957 anil 1963 from which, no doubt, information was
obtained asto the more prornising areas for exploitation. At any rate, as the
Federal Govemment prepared for ratification of the Convention, it began to
consider activelythe problems of its boundaries with its neighbours. Meanwhile,
in a Note to the Federal Republic of 21 June 1963-this isinAnnex 8 of the
Netherlands Counter-Mernorial-the Netherlands had explained her view of
the continental shelfboundary which shethought should apply between the two
countnes. This is the term of the Note:90 NORTH SEA CONTINENTAL SHELF
"In connection with the proposed ratification of the Convention on the
Continental Shelf signed at Geneva on 29 April 1958,the Royal Nether-
lands Government wishes to state that the part of the continental shelf of
theNorth Sea over whichit exercisessovereignrights inconformitywith the
said Convention is delimited to the easby the equidistance line beginning
at the point where the thalweg in the mouth of the Ems reaches the terri-
torial waters."
To this the Federal Republic answered in a Note of 26August 1963,and this is
Annex 9 A of the Netherlands Counter-Mernorial:
"The Federal Govemrnent does not share the Royal Netherlands
Government's viewson the delimitation between the Federal Republic of
Germany and the Netherlands. The Federal Republic holds the view that
there are historical reasons and other special circurnstances that justify
adoption in the area of .. . a delimitation line, the position of which
differsinmore than one respectfromthat claimedbythe Royal Netherlands
Government."
And it added that "the Federal Government too ispreparing for the ratification
of the Convention on the continental shelf". Here, once more, Mr. President,
there is no trace of any idea on the part of the Federal Republic that it could
base the delimitation of its continental shelf boundaries on principles outside
the Convention, and in particular Article 6. On the contrary the language of
that note is consistent only with a claim to invoke the special circumstances
exception in Article 6.
Indeed the note itself expressly envisagesthe Federal Republic becoming a
party to the Convention quite shortly. And, Mr. President, 1 need hardly Say
there is no trace of coastal frontages or of equitable apportionment in that
Reply, which in some degree sought to challenge the Netherlands' ideas as to
the delimitation of its continental shelf.
The Federal Republic's intention to proceed to ratification was reiterated in
its proclamation of 20 January 1964.This is in Annex 10 A of the Netherlands
Counter-Memorial. In the proclamation the Federal Republic referred to "the
development of general international law asexpressed in recent State practice
and in particular in the signing of the Geneva Convention on the Continental
Shelf". We do not see, Mr. President, how the Federal Republic could have
recognized more clearly than by these words both the part played by the sig-
nature of the Geneva Convention in consolidating-to usea neutral term-the
law of the continental shelf and the character of the Convention asan ex-
pression of general international Law.ln the proclamation the Federal Govem-
ment went on to proclaim its exclusive sovereign right to the exploration and
exploitation of the submarine areas adjacent to the German coast.
Jt then said that the "detailed delimitation" of the German continental shelf
vis-A-visthe continental shelves of other States "would remain the subject of
agreement with other States".
Here again, Mr. President, there is no trace of apportionment nor ofjust and
equitable shares nor of coastal frontages. In this proclamation the Federal
Republic clearly envisaged the German continental shelf simply asthe area
adjacent to the German coast, the boundaries of which raised onlya problem of
their detailed delimitation. Some four months later, on 15 May 1964, the
Federal Republic submitted a continental shelf biHto the Federal Parliament,
in theexposé describing it (exposédes motifs) as "the municipal supplementto
the effectsof the proclamation in the field of international law".
Theexposédesmotifa sgain stressed the significanceof the Convention in the ARGUMENT OF SIR HUMPHREY WALDOCK 91
development of the law, and it stated expressly that the contents of the Federal
Republic's sovereign rights conform to those established for coastal States by
the Geneva Convention.
The Federal Republic soiight in the RepIy to suggest that this staternent
referred only to the contents of the rights as defined in Articles 1 and 2 of the
Convention. But, as wepointed out in paragraph 92 of our Common Rejoinder,
the expo~édes motifs itself spells out the obligations attaching to those rights
under Articles 3 and 5 of the Conjrention and is not, therefore, limited to
Articles 1 and 2 in itsrecognition of the régime applicable to the Federal
Republic's continental shelf.
Thereafter, Mr. President. the Feileral Government's ardour to ratify the
Convention cooled, Its negotiationc. with the Netherlands, and later with
Denmark, resulted in the deIimitatiorn ofthe partial boundaries near the shore.
But they also made it clear that both the Netherlands and Denmark were
adamant in finding no valid ceasonfor not applying the equidistance principle
to the whole of their boundaries with the Federal Republic.
Then, Mr, President, the Federal Republic turned its back upon the Con-
vention, and looked for other grourids upon which to base its claiin. In its
Mernorial. as the Court knows. the ]TederalRepublic placed al1its weight on
a supposed principle of apportioning just and eq;itable Sharesof the continental
shelf of the North Seato each coastal Staie, and sought to exclude altogether, as
1 have said earlier, the application of the principles>ontained in ~rtide 6. This
position, as 1already explairied, it maintained in its Reply, although adding a
subsidiary submission lest tht:Court should hold that the principles in Article
are applicable.
What the Fecleral Republic:did ~iotdo in either of its pleadings, and has not
yet done, is to explain just how, after 1964,such a change couId have tahen place
in the legal basis for theeliinitation of its continental shelf boundaries.
Such, Mr. President, is the legal posture adopted, it would seem, very much
as an afterthought, in which the Federal Republic appears before the Court. NORTH SEA CONTINENTALSHELF
FIFTH PUBLIC HEARING (29 X 68, 10a.m.)
Present: [Seehearing of 23 X 68.1
Sir Humphrey WALDOCK: 1beginthis morning, as1indicated, withour first
contention, and forthe convenience of the Court 1 willrecall how 1 formulated
it in my opening observations. We contend that if the principles and rules
embodied in Article 6, paragraph 2, of the Convention are excluded from
consideration, then the continental shelfboundaries of the respectiveParties are
to be determined on the basis of the exclusive rights of each Party over the
continental shelf adjacent to its coast and of the principle that the boundary is
to leave each Partyevery point of the continental shelf which lies nearer to its
coast than to the coast of any other Party.
Mr. President and Members of the Court, our starting point is the exclusive
sovereign rights possessed by Denmark and by the-Netherlands, as coastal
States, over the continental shelf adjacent to their respective coasts for the
purpose of exploring and exploiting its natural resources. These exclusive
sovereignrights wererecognizedbythe Geneva Conferenceof 1958asappertain-
ing today to every coastal Stateipso jure and independently of any occupation
of the continental shelf and of any express proclamation. The Federal Republic
itself recognizes that these rights now attach to every coasta1 State as general
customary rîghts, indeed, it claimsthern for itself expresslyon that basis; and it
further recognizes that these rights find their authoritative expression and
definition in Articles 1and 2of theContinental ShelfConvention. On this aspect
of the case, Mr. President, the three Governments before you are in complete
agreement; and 1need only add, in passing, that Denmark and the Netherlands
arealso contractually bound, as betweeneach other, to apply the law stated in
those Articles.
Accordingly, it would appear to be comrnon ground between the Parties in
the cases before you that today, just as certain rights with respect to internal
waters, with respectto the territorial sea and with respectto the contiguous zone,
appertain ipso jure to a coastal State simply in virtue of its coast, so also do
exclusiverights with respect to the continental shelf. Manifestly, in each one of
these casesit is the geographical relation of the maritime area in question to the
coast which generatesthe rights of the coastal State over the areaInone case-
internal waters-it is the close links of thearea with the land domain which
constitute the legal basis of the coastal State's rights.In the others-theterri-
torial sea, contiguous zone and continental shelf-it is the adjacency of the
areas in question to the coast which is the IegaI nexus creating the coastal
State'srights. Thesecriteria of the coastalState's rights findforma1expressionin
the Geneva Conventions: in Article 4, paragraph 2, of the Territorial Sea
Convention for internal waters; in Article 1 of that Convention for the terri-
torial sea; in Article 24 of that Convention for the contiguous zone, if in a more
indirect manner, and in Article 1 of the Continental Shelf Convention for the
continental shelf.
Two elements, therefore, form the basis of the maritime rights of a coastal
State: its possession of a specificphysical coast and, secondly, the geographical
adjacency of the maritime areas in question to that coast.1 should hard1yhave
considered it necessary, Mr. President, toSay anything about the first element,
the coast, so cfear is the law on the point. But the Federal Republic has in- ARGUMENT OF SIRHUMPHREY WALDOCK 93
troduced into the cases that noveI arid rather shifting concept of a "coastal
frontage"; and I must, therefore, saya brief word about the coast of a coastal
State.
The verypurpose of Articlt:~3 to 17 of the Territorial SeaConvention was to
givedefinition to the legal cortcept of the "coast" of a coastal Sbytcodifying
the rules for determining the baselinesfor delimitingthe territorial sea. Article 1
refersto the coastal State's sovereignty overa "belt of seaadjacent to its coast",
and then Articles 3to 13lay down a series of rules for determining, in a number
of differentsituations, what isto be consitleredthe baselineof the coast. If those
Articles define the legal coricept of the coast specifically with reference to
delimitation of the territorial sea, Article 24, paragraph 3, of the Convention
clearly assumes that the baselines which those Articles 3 to 13 prescribe con-
stitute the legal coastline of a State Ior other maritime delimitations, for the
baselines of the territorial ses are there incorporated,by reference, into the
delimitation of the contiguous zone. Similarly, Article 7, paragraph 5, of the
Convention on Fishing and C:onservationof the Living Resources of the High
Sea assumes the general relevance of the territorial sea baselines both as con-
stituting the legal coast ofa State arid as determining the legal relation of a
coastd State toa given area of the higti seas. The Continental ShelfConvention
itself is completely explicit on the point. for Article 6 expressly incorporates
the baselines of the territorisea in the iules which cal1for the application of
the equidistance principle. Furthermore, the four Geneva Conventions were
drawn up together, asconnected parts of a general codification and prcigressive
developrnent of the law of the sea, preparedby a single body, the International
Law Commission.
Accordingly, in our view, it is unthinkable that the words "adjacent to the
coast" in Article 1 of the Continental Shelf Convention should be given any
other meaning than adjacent to the b~;elirieof the coast as legallydefinedin the
Territorial Sea Convention. Under cu:.tonlary law, as weIlas under the Geneva
Conventions, it is the baseline:of the coast which constitutes the coast for legal
purposes and the point of departure for tlelirnitingthe various maritime areas
over which the coastal State t:xercisesrights in virtue of its coast.
The two Govemments for which 1 appear merely ask the Court to apply the
orthodox principle that they are entitkd to the maritime areas-in this case of
the continental shelf-which are adjacent to the baselines of their respective
coasts. The Federal Republic:'~concept of "coastal frontages", on the other
hand, has no place whatever inthe accepted legal order governing thedelimi-
tation of maritime sovereignty or of niaritirne jurisdiction.
Our position is,webelieve,equally orthodox in regard to the secondelernent-
geographical adjacency to the coast. M7econtend that proximity to the coast is,
necessarily, the primary criterion for determining the adjacency of any given
maritime area to one State rather than to another. The element of proximity is
inherent alike inthe concept of adjacency to a coast and in the concept of a
State's being the coastal Statr, with rcference to a given maritime area. It is,
indeed, the very root of the !;pecialrights accorded in maritime areas to the
coastal State as against other States. It is therefore absolutely logicalthatwhen
it isa question of the claims of more.than one coastal State, Article 12 and
Article 24, paragraph 3, of the Territorial Sea Convention, Article 6 of the
Continental SheIf Convention and Article 7, paragraph 5, of the Fishing and
Conservation Convention should pre:;cribe the equidistance principle as the
basic rule.
In this connection, Mr. Preçident, I should like to refer the Court to an
article on "Submarine Bound;iries" in the lntevnntionaland Cornparalive Law94 NORTH SEA CONTINENTAL SHELF
Quarterly of 1960by D. J.Padwa, of the New York Bar. Having observed that
in the absence of a conventional undertaking States are not obliged to adopt a
specificmode of conduct with respect to submarine boundaries, Padwa says on
page 639:
"Nevertheless, the theory of equidistance isnot without relevance,for as
is now suggested,if a State acting in good faith makes a unilateral determi-
nation of its submarine boundary based on the principle of equidistance, it
is extremely difficult to see how another State, adjacent to the same con-
tinental shelf, can allege a berter claim to subrnarine areas which are in
greater proximity to the first State. The traditional view that a territorial
delimitation can 'not be achieved by norms beionging to the legal order of
one State, since every such order is limited in its validity to the territory
and people of that State' is in no senseviolated by this conclusion, for the
principle of equidistance is not a norm belonging to the,legal order of a
sidgle State. Ttis, rather, a norm inherent in the international law of the
sea."
That is the end of my quotation from Mr. Padwa.
That proximity to the coast is such a norm inherent in the international law
of the sea is well iilustrated by paragraph 5 of Article 7 of the Fishing and
Conservation Convention. The object of Articles 6 and 7 of that Convention
was to recognizeand make provision for the specialinterest of a coastal State in
the conservation of the livingresources "in any area of the high seas adjacent to
itsterritorial sea". Paragraph 5 ofArticle7,whichwas introduced at the Geneva
Conference as part of an Il-power proposal, seeks in effect to designate the
coastal State to which that special interest attaches in cases where coasts of
more than one State are involved, and paragraph 5 expressly provides that
"the principles of geographical demarcation as defined in Article 12 of the
Convention on the Territorial Sea" shall apply .In other words, in the absence
of a contrary agreement or of special circumstances, it is the equidistance
principle-the principle of greater proximity-that is to determine the coastal
State which has the "special interest".
In that Convention, as the Court willrecall, it was not a question of exclusive
rights of the coastal States but simply of special rights in regard to conservation
mesures. Yet the Conference thought it natural, in delimiting the areas of
thosespecial rights, to apply the equidistance principle-the norm of proximity.
When youturn, Mr. President, to the Continental Shelf Convention itself,
you are confronted with the recognition of exclusiverights in the coastal State;
and then afortioriisit indicated to apply the norm of proximity. This point also
is well put by Mr. Padwa in the article to which 1have referred. On page 639,
he points out that as between two States which have embraced the doctrine of
the continental shelf, both arelogicallycommitted to the proposition that any
givenarea of continental shelfappertains to a singleState, sothat the question is
only one of deciding which State shall have exclusive use. He'then goes on:
"This fairly approximates the question of where the submarine bound-
ary is located as between the two States. As suggested, while the principle
of equidistance does not apply autornatically, nor as an indispensable
condition, its bona fide invocation may be an advisable and valuable
procedure; for the other party-committed to exclusivity-cannot put
forward a better claim. In the absence ofother factors, such asthe existence
of special circumstances, proximity would be the test,'for the idea of
'appurtenancy' is at the core of the theory of the continental shelf." ARGUMENT OF SIR:HULfF'HREYWALDOCK 95
On the next page, Mr. Padwa re-emphasizesthat the proximity test isimplicit in
much of what we know cona:rning the law of the sea.In this context he says:
". ..the idea of proximity or distance from the shore operates as a funda-
mental norm. It is not ne,ressarytmcclnsiderwhether this idea of proximity
is the best of legalconsiderations, thc point being that it is a wellaccepted
one."
At the bottom of that page he then continues :
"If proximity isnot tht:criterion for determininga submarine boundary
(and if the parties are unable tct agee on another line), then the only
natural alternative is tha.t of joior shared ownership over the area in
question. However, thosi: States proclaiming the validity of the doctrine
of the continental shelfhave, by their veryacts, rejectedsucha construction
and have expressed their cornmitment to exclusive use by the coastal
State. This being thecase,the principle of equidistance must be utilized to
determine whichisthe 'coastal'Stiitewith respect to a givenarea ofsea-bed
and subsoil."
He goes on:
"This would suggest that States may to.some measure preserve certain
rights by unilaterally and in good faith invoking a boundary based on the
principle of equidistance. This line.of reasoning has the effectof sayingthat
as between parties accepting the biisicprinciple of the continental shelf, the
provisions of Article 6 a1.emerelg declaratory of a reasonable and logical
consequence."
In other words, Mr. President, according to this writer, the equidistance
princjple is implicit in Articles 1 and 2 of the Convention as well as being
explicit in Article 6.
We do not, of course, ask the Coui-tti, base itself on this article in a legal
journal. Wemerely cite it asan indeperideiitexposition ofthe principlesgovern-
ing continental shelf boundaries on liaes which are not dissimilar frorn those
we have ourselves stated in Our written pleadings. In our Counter-MemoriaIs
and in Our Common Rejoinder, as the Court knows, we have emphasized the
logical and legallink which existsbetween the equidistance principle prescribed
in Article 6 and the recognition in Ai+ticles1 and 2 of the coastal State's ex-
clusiverights ipsojure over the continerltaishelfadjacent to its coast. Court
willfind our arguments on thi~tpoint in paragraphs 115 and 116 of the Danish
and paragraphs 109 and 110 of the Netherlands Counter-Memorials and
developed further in paragraph 17of Cha.pter 1 and paragraphs 119to 121of
the Common Rejoinder.
Moreover, in our Common Rejoinder we have expressly submitted that, if
the principIes expressed in Ariici6 of the Convention are not applicable, then
the boundary should in each !casebe tletermined on the basis of the exclusive
rights of each party over the c:ontinen?alshelf adjacent to its coast and of the
principle that the boundary sliould leave to each party every point 'which lies
nearer to its coast than to that of the other party.
Now this submission we rest upon what we, like Mr. Padwa, conceiveto be a
fundamental nom of maritimr international Iaw: the principle of proximity or
of greater nearness to-the coast.'Wecointendthat the principle is inherent in the
very concept, as I said, of a State's heii~ga coastal State with respect to a given
maritime area and also in the very cor~ceptof a coastal Staté'sexclusive rights
over areas adjacent to its coaçt:This coiltention we have also supported by96 NORTH SEA CONTINENTAL SHELF
showing the large use made of the proximity principle in the State practice
regarding the delimitation of several forms of maritime boundaries, its en-
dorsement by the International Law Commission and by the Geneva Con-
ference for severalforrns of maritime boundaries, its specificuse in the delimi-
tation of continental shelf boundaries since the Geneva Conference both by
States which are parties and by States which are not parties to the Continental
ShelfConvention, and that includesamongst the States that are not parties, the
Federal Republic.
Now the almost hostile attitude adopted by the Federal Republic in the
present proceedingstowards the proximity-the equidistance-principle seerns
to us somewhat surprising. It is surprising not only because of the fundamental
character of the principle in maritime international law, but also because of the
Federal Republic's own apparent acceptance of it outside these proceedings.
Wepointed out in our Counter-Memorial that, even at the 1930 Codification
Conference, Germany went on record as endorsing the median line as the
boundary in straits, and it appears to have done so on the bais that this was
the existing customary law,
At the Geneva Conference, as we have reminded the Federal Republic, it
voted in favour of the incorporation of the equidistance principle in Article 6
of the Continental Shelf Convention. Equally, there is no trace that we have
found intherecords oftheConference ofthe Federal Republic's havingopposed
the incorporation of the equidistance principle in Articles 12 or 24 of the
Territorial Sea Convention, or in Article 7, paragraph 5, of the Fishing and
Conservation Convention.
Furthermore, the Federal Republic has itself, since the Conference, applied
the proximity-the equidistance-principle in the delimitation of itscontinental
shelf boundary inthe Baltic and its partial continental shelf boundaries in the
North Sea, aswellas its fishery boundaries under the European Fisheries Con-
vention.
Al1this we have shown ad nariseamin the written pleadings.
In addition,Mr. President, the Federal Government seemstoo easilyto have
forgotten that, in its memorandurn on the continental shelf submitted to the
Geneva Conference, the Federal Republic pressed upon the Conference the
application of the proximity principle for determining the coastal State respon-
sible for ensuring observance of the Iaw of the continental shelf in any given
area. The main proposal of the Federal Republic, as 1 have already indicated,
was that the continental shelf should rernain open for exploitation by any
person of any nationality. At the same time, however, it advocated that rules
should be laid down to regulate exploitation in order to protect the interests of
those exploiting the shelf and to safeguard the exerciseof the other freedoms of
the high seas.
Then, dismissing the suggestion of entrusting the exploitation of the con-
tinental shelfto the United Nations, orto a specializedagency,as not in present
circumstances practical, the Federal Republic said that a solution suited to the
peculiar nature of the activities in question must therefore be sought elsewhere.
This other solution it formulated as follows:
"As the installations employed in the exploration and exploitation of
submarine areas are comparatively immovable fixtures, it does not seem
proper to subordinate the observance of the international rules to the
principle of the personal law,i.e., the law of the nationality of the operator.
By reason of the nature of these installations the more logical course
wouldbe,rather, to vestresponsibilityfor securing observance ofthe agreed ARGUMENT OF SIR HUMPHREY WALDOCK 97
rules in the coastal State closest to the installation in question, that State to
act on behalf of the international community. The functions of that State
would be :
(a) to satisfy itself that the operator fulfils the necessary conditions
qualifying him to ca.rryout i.heproposed work;
(6) to supervise the concerns eiigaged in prospecting and exploitation;
(c) to delimit the prospecting arid exploitation areas of each operator."
Jt is true that the Federiil Republic's rnernorandum contemplated as a
possibilitythat regional convt:ntionsniight afterwards be concluded and that in
suchcasesjoint bodies might tieestablished to perform the supervisoryfunctions
in place of the coastal State. But,as the passage which1 have read to the Court
makes perfectly clear, the Fe:deralRi:public then considered that the natural
course was to attribute to the coasial State the responsibility for securing
observance of the régimeagrezd for th12exploitation of the continental shelfand
to designate the State neareit to thc: areas in question as the coastal State
entrusted with this responsibility.
Under the doctrine of the continentiil slielfthe coastal State is not only given
exclusiverights. It is also p1ac:edundei:specificobligations, whichare spelt out
in Articles3 to 5 of the Conventiori and irre designedto ensure respect for the
rights of otherson the high seas or in the airspace above. In short, in the words
of the Federal Republic's memoranclum, the coastal State is invested with
"responsibilityfor securing the observance of the agreed rules". If the FederaI
Republic considered prior tcl the Conference that this responsibility should
be entrusted to the nearest cclastalState under a régime whereexploitation of
the continental sheIfwould relnain free.to all, this solution would certaiiilyseem
even more natural and logical under a system of the coastal State's exclusive
rights over the continental shelf adjaosnt to its coast.
The Federal Republic, in paragraph 59of the Reply, has sought to distinguish
between the relevance of pro~iinquityin the contexts of the territorial sea and
the contiguous zone on the one hand and in the context of the continental shelf,
It there contended:
"There rnight be justificatiori iriregarding the distance from the nearest
point of a coast as an e:;senti:~lc:lenientin the delimitation of territorial
waters or of the contiguous zone becausethe main function of the width of
these zones is to secure ttie vrotectioii of the coast and the enforcement of
the laws of tlie country. ~here is much lessjustification in regarding the
nearest distance to a coaslal oint as an essentialelementin the delimitation
of the continental shelf becaust here the main function of the rights over
the continental shelf is ncltto secure some power of control from the coast
but to reserve its natural resoui-cefito the coastal State."
The supposed difference betwcen the c:ontinentalshelf and the other two cases
seemsto us here to be put much too high. In the first place, a coastal State does
have actual sovereignty over the territorial sea and therefore exclusive rights
over al1the natural resources hoth belcnwand above the seabed. SecondIy,while
the doctrine of the continental shelf certainly reserves its natural resources to
the coastal State, one of its uriderlyingpremisesis the need of the coastal State
to secure the protection of iti; own cclastand maritime interests. Thus, "self-
protection" was one of the four priricipal reasons givenby the United Statesin
the original Truman Proclaination in justification of its continental shelf
claim. "Self-protection," said the Proclaination, "cornpels a coastal State to
keep close watch over drillirig and rnining operations off its shores"; and,98 NORTH SEA CONTlNENTAL SHELF
Mr. President, not only imrnediatelyofFits shores but farther out to sea today
the need for this "close watch" has certainly not lessened since those words
were uttered in 1945.
Again, as 1pointed out a little while ago, the coastal State is invested with
responsibility, vis-à-visother States, for the protection of their rights of navi-
gation and fishing, etc., on the high sea. Moreover, in the development of the
continental shelf doctrine one of the justifications put forward for giving
exclusivejurisdiction andcontrol to the coastal State was the need to secure the
orderly exploitation of the resources of the seabed and subsoil in the interoft
rnankind.
This being said, Mr. President, we of course recognize that in the case of the
continental shelf larger areas come into question. But this is a fact of life of
which the Geneva Conference was very well aware and yet, as we know, it
applied the equidistance-special circumstances formula both to the territorial
sea and the continental shelf. It may be, Mr. President, that in the narrower
areas of the territoriak sea some exceptional geographical features may, more
often than in the case of the continental shelf, produce alrnost negligibleeffects
and be disregarded by the Parties on the principle of dminimis,and in that way
it may be that propinquity rnay sometimes be a little more decisivein the case
of the territorial sea. But this does not detract anything from the general
importance of propinquity in the régimeand in the deIimitation of the con-
tinental shelf.
Accordingly, Mr. President and Members of the Court, we have found noth-
ing in the arguments of the FederaI Republic to make us depart in any way
frornour contention that,altogether independently ofArticle6ofthe Convention,
the equidistance principle-the proximity principle-is applicable as between
the Parties in the present cases.
Clearly, the Federal Republic is not contractually bound by the provisions
of Article 6. We think, however, that the principles embodied in those pro-
visions expresswhatis now the generally accepted law of the continental shelf
and are, in consequence, binding upon the Federal Republic. 1 shall deaI with
that question a little later on. But the Federal Republic utterly repudiates the
idea that those principles form part of the general law of the continental shelf
today. And it contends that you will be bound to return a non liquet in the
present casesunless you have recourse to paragraph (c) of Article 38 of your
Statute and apply, as a general principle of law recognized in national legaI
systems, its alleged principle of the just and equitable share. There are several
reasons why, in our view, this contention must be rejected, and 1shall come to
them at the end of my speech when 1 deal with the Federal Republic's case.
Here I want to confine myself to our own cases conceming the law which we
think that the Court should lay down in response to the questionsput toit in the
two Special Agreements.
The point whichTam now seekingfostresson behaIfof the two Governments
is that even if Article 6 is left entirely out of account, there is no question
whatever of a ironliquet.No question whatever, that is, of a total gap in the law
capable of being filled only by introducing into the existing fabric of maritime
international law a new principle taken frorn national legal systems.In the very
nature of the customary rights at issue in the present cases, the Court has a
fully adequate basis for Iaying down the principles and rules to govern the
delimitation of the continental shelf boundaries as between the respective
Parties: in their character as exclusive rights; in their character as rights
appertaining to that State which is the coastal State vis-à-visany givenarea; in
their character asrights over areas adjacent to the coast of the coastal State; in ARGUMENï OF SIR HUMPHREY WALDOCK 99
their character as rights constituting an extension of the sovereign rights of the
coastal State over the contigrious subinarine area.
Furthemore, Mr. Presiden.?,wesubmit that the Court isnot onIyentitled but
bound to consider and apply the exclusive rights of coastal States under the
doctrine of the continental shelf in .eheircontext as an integral part of the
general corpus of the rules of interiiationid lawgoverningmaritime sovereignty
and jurisdiction.
Although the doctrine of the continental shelf iscomparatively new, its
emergence in State practice, in the International Law Commission and the
Conference formed part of a general development and codification ofmaritime
international law. Accordingly, whettier the principlesand rules embodied in
Articles1 and 2are viewedas treaty provisionsor asan expressionof customary
rules, their interpretation and application must, we believe,take account of the
corpus of principles and rules;of which tliey form onlya part.
Therefore, if need be, the Court is, i:nOuropinion, fully warranted iii having
recourse to the fundamental norrn:j of maritime international law in order to
iind the principles applicable to the di:limitation of the continental shelf in the
present cases, and in then iiesignating "proxirnity" or "contiguity" as the
relevant norm calling for the application of the equidistance principle.
1now propose, Mr. President, to pass to Our second contention. This con-
tention, as the Court may recall, ifa little long in its formulation and it may
be convenient to the Court il'1againrecall the words which 1 used yesterday.
We contend that the principles and rules embodied in Article 6 of the Con-
tinental Shelf Convention are an expression of the generally accepted law
governing the delimitation cif continental shelf boundaries; that as coastal
States we are competent to delimit thr biiundaries of Ourcontinental shelves;
that the delimitations made bona fide inapplication of the principles and rules
in Article 6 are prima facie, valerga omnes, and that the Federal Republic is
therefore bound to respect our delimitations, unless it can establish a better
legal ground of claim to any areas coinprised within our defimitations.
That, Mr. President, isthe substance ofour contention. TheFederal Republic
takes the position that it is not enougti for us to show that these principles and
rules embodied in Article 6 are an expression ofthe generally accepted lawand
that we must show that they have b'zenestablished in such a manner as to
becorne binding on the Federal Republic. I will deaI with that point in a
moment. But, first, 1must brlefiy recill the considerations on which we base
Our contention that Article 6, paragraph 2, is an expression of the generalIy
accepted law.
We have set out these considerationi;fully in Chapter III of Part II of each of
our Counter-Mernorials and again in Chapter II of the Common Rejoinder.
We do not think that the Court willwish us to go al1over the ground again, and
we therefore respectfullyaskthe Court on this part of our casesto refer to what
we have said in our written plt:adings,imdespeciallin the Common Rejoinder,
1, pages 474 to 503.
At this stage I propose simply tosummarize and recall the main elernentsof
the cases by which wejustify our contention, supplementing this sumrnary with
some incidental further obseriations.
FoIlowing a logical order, the first elernent is the State practice evidencing
the wide use of the equidistarice principle in the delimitation of sea and fresh-
water boundaries in contexts other thim the continental shelf.
This evidence we drew attention to in paragraphs 84 to 112 of the Danish,
and paragraphs 78 to 106 of ihe Netherlands Counter-Memorials and in their
corresponding Annexes. We exparided our treatment of it in the Common NORTH SEA CONTINENTALSHELF
100
Rejoinder, 1,pages488to491,wherewealso rebutted certain criticisms by which
the Federal Republic had sought to dispose of the evidence in its Reply.
The second element isthe report of the Committee of Experts in 1953which,
for the territorial sea, approved the median line in the case of opposite States
and recomrnended the equidistance principle as the lateral boundary in the case
of adjacent States and which further stressed the importance ofthe formula for
drawing the international boundariesin the territorial sea beingsuch ascould be
used also for the continental shelf.
The third element is the endorsement of the proposals of the Committee of
Experts by the Special Rapporteur of the International Law Commission and
his formulation of rules for the continental shelf in terms of the equidistance
principle producing a median line boundary between opposite States and a
laterai equidistance boundary between adjacent States.
The fourth element is the adoption of the equidistance principle for the
continental shelfby the Commission itselfin 1953both in its median line and in
its lateral form, and the Commission's adoption of this principle both for the
temtorial sea and the continental shelf in itsfinalreport on the law of the sea
submitted to the General Assernblyin 1956.
In connection with the Commission's adoption of the equidistance principle
in 1953.weunderline the emphasisplaced by the Commissioninits commentary
on the équidistanceprinciplias the "generalrule" andthe"major principle" inthe
law governinn the delimitation of continental shelf boundaries. The Court will
hdthe relevant passage of the commentary, Mr. President, set out con-
venientlyin the Danish Counter-Memorial, 1,page 181,and in the Netherlands
Counter-Mernorial 1, pages 334 and 335. Equally, of course, we recognize that
the Commission expressly made allowance for exceptional cases where there
are special circumstances which justify another boundary line. My fnend, the
distinguished Agentfor Denmark, willbe addressing you Iater on that aspect of
the case.
The fifth elementis the apparent acceptability in general to Member States of
the United Nations of the Commission'sproposals regarding the equidistance-
special circumstances rule when asked to comment upon its draft. And here 1
should like to recall what 1 have already said about the express acceptance of
these proposals prior to the Conference by both Denmark and by the Nether-
lands.
The sixth element is the whole-hearted endorsement of the equidistance-
special circumstances rule by the Geneva Conference itself, which adopted the
provisions which are now Article 6 of the Continental ShelfConvention by the
ovenvhelming vote of 63in favour with none against and only two abstentions.
As the Court knows, al1three Parties to the present proceedingsvoted in favour
of the adoption of Article 6.
The seventh element is the signature of the Convention by a considerable
nurnber of States, including ail the Parties now before the Court, and its
ratification by no less than 39 States, including Denrnark and the Netherlands
but not,ultimately the Federal Republic. 1Say"ultimately" because, asI have
already pointed out, the Federal Republic seems to have come to the brink of
ratification, only to draw back when it realized that its ambitions in the North
Sea could not be satisfied within the framewark of Article 6.
In the Reply, the Federal RepubIic sought to play down the quite considerable
number of the States which have taken the farrnal steps necessary to establish
definitively their acceptance of the Convention. The dilatoriness of States in
carrying out the formal procedure for acceptance of treaties, by ratification,
accession,etc., ismuch too familiar to this Court to need anyexplanations from ARGUMENT OF SIR HUh.IPHREYWALDOCK 101
counsel. Indeed, so far as codification treaties are concerned, this point was the
subject of some discussion at the lasf session of the lnteriiational Law Com-
mission on the basis of a parler submitted by Professor Ago, whosearticle on
this matter'in the volume recently published in honour of Professor Guggen-
heim rnay be known to the Court. Professor Ago, it hardly needs to be said, is
chairman of the Vienna Conference 011the Law of Treaties. Clearly, Mr. Pres-
ident, al1who have the codification of international law at heart must wish to
see some acceleration of the: final stage in the codification process. But it
remains truethat the 39acceptances oj'the Continental ShelfConvention which
have taken place in a decade represent very solid evidenceof the general accep-
tance of the principles of the Convention by the international community. The
actual number is not only corisiderable but almost the same as the number for
the High Seas Convention wIiich is, par eirce!lencea convention expressive of
general customary law. Moreover, as ]%ofessorAgo emphasized in that article,
the acceptances of these two Convent:ions,the Continental Shelf and the High
SeasConvention, evenif not too numerous, "sont heureusementassezreprésen-
tatives des différentsgroupes de membres de la communautéinternationale".
In other words he stressed thiit the aci:epiancesof these Conventions iiicluda
satisfying geographical distribution of the parties amongst the different regions
of the world. 1 should add, Mir.Presiclent,that the number of acceptances was
37 when the Common Rejoinder was :filecis , othat there have been two further
acceptances even since that stage in our pleadings.
Theeighthelement,Mr, Preident, isthe Statepracticein the application of the
Continental ShelfConvention whichh;isoccurred sincethe Geneva Conference.
This practice we have set out in the written pleadings; and I would ask the
Court to refer to the Danish Counter-Memorial, 1, pages 192 to 198, and the
Netherlands Counter-Mernoriai, 1, pages 346 to 351, and especially to the
Common Rejoinder, 1, pages 488 to :503 w.here we examined this practice in
some detail. The picture presented by this practice is one of the repeated and
expanding application of the equidistance-special circumstances rule. In case
after case in the Baltic, in the North Sea and in other parts of the world,
continental shelf boundaries have beeridelimited, by agreement or unilateraIly,
on the basis of the principles expressedin Article 6. In severalof these casesone
of the States concerned was ]lot a pairty to the Convention when it made the
delimitation and some of them, like I'Torway,Belgium and Iraq, are still not
parties, The Federal Republic itself, though noa Party, harmade delimitations,
in the Balticand in thetwo partial boundaries, whichalso are in accord with the
principles ofthe Convention. No doubt there may be one or two specialcasesas
the instance of Chile, Peru aiid Ecuador, where by agreement and for special
reasons, a different systemhiis been a.dopted,but the picture presented by the
State practice remains clearly one of tlie general acceptance of the principles of
the Convention as the law qplicable to the delimitations of the continenta1
shelf. 1 know that our opponents ha.vesought to impugn the value of this
practice as evidence of the gsneral acceptance of the principles of Article 6.
I will deal with their criticisnis, whicfi seem to us to be misconceived, a little
Iater on, because here, Mr. President, 1want to present our own view of that
practice.
The Coirrt adjournedfrom11.20 am. to 11.40a.nz.
When weadjoumed 1was silmmarizingfor theCourt the various elementson
the bais of which wecontend that the grinciplesand rulesexpressedin Article 6102 NORTH SEA CONTINENTAL SHELF
are an expression of the generalIy accepted law goveming the delimitation of
continental shelf boundaries. And I may, perhaps, remind the Court that 1am
doing this not in the context of custom, but sirnply on the poinas to whether
these are the generallyaccepted principles governingdelimitation of continental
shelf boundaries. 1had Iisted eight elements and 1am almost at my last.
The ninth element is the position adopted by the Federal Republic itself in
regard to Article 6right up to 1964.Ineed not repeat al1tha1 have already said
in describing the legal posture in which the Federal Republic cornes before the ,
Court. It is clear, in our view, from what I then said, that on the documents
right up to 1964 the Federal Republic was conducting itself on the basis that
the principles and rules in Article 6constitute the generally accepted régimefor
determining continental shelf boundaries. 1 may add that even in the first
stages of the negotiations the Federal Republic was still talking the language of
special circumstances. True, it was then invoking grounds, such as historic
reasons and the comparative needs ofthe respectivecountries for fuel resources,
which it seernssince to have recognizedthat it would be quite unable to sustain
before the Court. Only when confronted with the firm positions of Denmark
and the Netherlands in regard to the equidistance principle did it take a hard
look at its own case on speciaIcircumstances and assess the prospects of that
case king considered to fall within the concept of special circumstances in
Article 6 as envisaged in the Geneva Convention. Only then did the Federal
Republic hurriediy turn its backon the rkgimeof Article 6 and begin to fashion
the elaborate and novel framework for its claims which Ourlearned opponents
so interestingly explained to you last week.
Wellthat, Mr. President, completes my list of the severalelements which go
to compose Our case on the status of the principles and rules embodied in
Article 6 as the generally accepted law governingthe delimitation of the con-
tinental shelf. The formation of customary Iaw is a composite process, and al1
the elements which 1 have givento you link together and form a coherent chain,
from the wide use of the equidistance principIe in other forrnof sea and fresh
water boundaries, from the work of the Cornmittee of Experts and the Inter-
national Law Commission, through the comments of governments and the
work of the Geneva Conference to the subsequent State practice showing, as
we think, the recognition by States of the principles embodied in Article 6 as
the generally accepted law.
One may suspect, Mr. President, that the weight of State practice applying
Article 6, which is already very substantial, will becorneeven more formidable
within quite a short space of time. No less than 22 of the acceptances of the
Convention have comein the past fiveyears and, as 1have mentioned, two have
come even since July. More acceptances are, without doubt, in the pipeline,
Nigeria being one, of which we ourselves have information. Similarly, quite a
number of the agreements negotiated under the aegisof Article 6 have appeared
within the past four years and others, like those between Belgium and the
Netherlands, and between Swedenand Finland, arewell advanced.
Nor, Mr. President and Members of the Court, are there Iacking other
indications of the general recognition of the principles embodied in Article6.
It is well known, our opponents have referred to it, that continental shelf
boundaries have been under discussionin various regions of the world. I myself
have personal knowledge of negotiations in at least six such questions. And
what do you find, Mr. President, in negotiations of this kind?
In my experience you invariably findthe parties, whether or not they have
ratified the Convention, taiking the language of Article 6: equidistance, special
circumstances, baselines, Then, if their negotiations run into difficulties,what ARGU~~EPITOF SIR HUMPHREY WALDOCK 103
are the reasons?The reasons, Mr. President, nearly alwaysare islands,especially
small ones, situated outside the territ,orialsea of the mainland; and the contest
is about whether they shoulclbe given fiilor some value as basepoints for the
equidistance lineor whether i.heyshoiild be treated as specialcircumstancesand
left with only their own territorial se;iat best.
Moreover, and this is quite frequent, as often as not a small isIet, hitherto
little regarded, has now becorne a pearl of great price owing to its position in
relation to a possibleequidisiance Iint:,and its sovereignty is suddenly placedin
dispute. You do not find, Mr. President, the equidistance principle being
banished from the scene in the manner dernanded by the Federal Republic.
What you find is an argument about ihe points of departure for its application,
or a bargaining about its rnodificaiion after counter-balancing the various
pieces which either side cal1 find on the chessboard in the particular area
concerned; and in aImost every casethe real difficultycornplicating the nego-
tiations is the fact that expbration of the shelf has preceded the negotiations
and the parties know where the oil structures are or are likely to be. But the
framework of the negotiations is still the principles and rules embodied in
Article 6.
The recently initialled agreement between Saudi Arabiaand Iran mentioned
by Professor Oda seemsto be very rnuch of this kind. Complicated negotiations
took place covering the melits of v:rrious islands as basepoints, methods of
applyingthe equidistance principleand a disputeas to the sovereignty ofcertain
islands. An early agreement was inilialled delimitinga form of equidistance
line-an agreement that was iiot ratified because too much wasknown concern-
ing the whereabouts of the oil stmct~tres.The agreement recently concluded is
thus only the final compromise in negotiations in which the principles in
Article 6 have been the cornrnon currency of the discussion.
1 now pars, Mr. President, to the coiiclusions which we ask the Court to
draw from the case which vgehave presented concerning the principles em-
bodied inArticle 6,and 1rnilst first put right what seems to havebeen a mis-
understanding on the part of Our opponents as to our propositions. On the
opening day the learned Ag;ent-it is on pages 14 and 15, supra. of the
verbatim record-seemed to suggest that on this issue we are putting our case
exclusiveiy in terms of a cilstomarJr rule of international Iaw binding the
Federal Republic to accept i:heequiclistence line or,as we would put it, the
equidistance-speciaI circumst~mcesrulle.hdeed, he also suggested on page 15,
supra, that in our Counter-Mernorials we had claimed that the equidistance
principle, pure and simple, is binding on the Federal Republic as a customary
rule, and in this connection he spokc:of Our having taken "a very important
step back". He further saidthat wehad discarded a supposedformercontention
that the equidistance principte, pure and. simple, hm acquired the status ofa
generailyaccepted principleof law. All these changes ofposition he appeared to
deduce from paragraph 39 of the F-ejoinder. As paragraph 39 is simply a
summary restatement of the argument in our Counter-Memorials, we wonder
how we can have given the i1npressio:nof having altered Ourground.
At any rate, 1can assure our opponents that wedid not intend anything of the
kind. Nor did we ever mean to divorce the equidistance principle from the
special circumstances excepiion. It was the Federal Republic itself which
persistently did this in its written pleailingsin order to givesomeappearance of
plausibility to its attacks upon Articli: 6.
There remains, however, tire misunderstanding about Ourconclusions.
We have put, Mr. Presiden-t,and WC:continue to put, Ourcaseon this issuein
two distinct ways.The first of these wiiysisthat we maintain that the principles104 NORTH SEA CONTINENTALSHELF
and rules embodied in Article 6, independently of the Federal Republic's own
relation to that Article, have acquired the status of the generally accepted law
governingthe delimitation of the continental shelf,and that a delimitation made
bona fidein accordance with these principles and rules is in consequence prima
facielegallyvalidand binding on al1other States, includingthe Federal Republic.
We found this contention-this way of putting Ourcase-on three consider-
ations :
One is the authoritative statement of this Court in the Norwegian Fisheries
case concerning the position of a coastal State in the delimitation of maritime
jurisdiction. This statement, the Court may recall, we expressly invoked in
Chapter 2 of Part II of our Counter-Memorials, and in paragraph 81 of our
Rejoinder we have again reiterated our reliance upon it. And in view of the
misunderstanding it seemsdesirable that 1should again put cIearlythis basis of
our contention. In the Norwegian Fisheries case, and this is, I fear, too well
known to the Court,but it maybe usefulto have it on the record, the Court said:
"the delimitation of sea areas has alwaysan international aspect. It cannot
be dependent merely upon the wjll of the coastal State as expressed in its
municipal law.
AIthough it is true that the act of delimitation is necessarily a unilateral
act, because only the coastal State is competent to undertake it, the validity
of the delimitation with regard to other States depends upon international
Iaw."
And, as we emphasized in our Counter-Memorials, the Court did not in that
passage saythat the validity of a delimitation by a coastal State vis-à-visanother
State depends on the will of that other State. What it said was that the validity
of the delimitation with regard to other States depends upon international
law .
Our second basis for this contention is the very nature of the coastal State's
rights over the continental shelf as exclusive rights to the continental shelf
adjacent to its coast and as rights which appertain to ipsojure and do not, in
the words of the International Law Commission, depend upon occupation,
effectiveor notional, oron any express proclamation. Now the Court will find
Our argument on this point in paragraphs 82 to 89 of Our Rejoinder, and, of
course, in the context of the first contention 1have already said something of
this to the Court today,
We have pointed out that the basic purpose of the Convention, and in
particular Articles 1 and 2, which the Federal Republic itself wholeheartedly
endorses, was to recognizeto al1States generalIyexclusivesovereign rightsover
the adjacent continental shelf as inhering in them ipso jure in virtue of their
sovereignty overthe coast. Clearly, neither the Commission nor the Conference
envisaged these rights as being valid only between particular contracting
States, and the Federal Republic, which claims these rights, is certainly in no
position to deny that the coastal State's rights wereintended to be and are rights
valid erga ornnes.
The inherent leaalitv of a delimitation of such riahts made in conformitv
with the generally accepted principles and rules of international law applicabfe
in thematter istherefore Ourthird basisforthis contention-the inherent le-ali-y
of a delimitation by a coastal State of such exclusiverights made in conformity
with the generally accepted principles and rules of international law applicable
in the matter.
NO doubt, Mr. President, such a delimitation may be challenged,if it can be
shown not in fact to conform to those generally accepted principles and rules. ARGUMENT OF SIR HUMPHREYWALDOCK 105
No doubt also, it might be cha1leng1.dby a particular State on a particular
ground, such as a preexisting treaty right or the principle of preclusion. But it
has, we contend, prima facie legality and validity erga omnes. Otherwise, what
becomes of the recognition of the coiistal States' rightsas exclusiveand valid
erga omnes?
In short, Mr. ~resident, we contend tliat the Federal Republic is bound to
respect a delimitation made in accordance with the principles and rules em-
bodied in Article 6--princiiiles and rules ovenvhelmingly endorsed in the
Geneva Conference-unless it can esi.ablisha better legal title to areas of the
continental shelf which, in these casesex hypothesi, are nearer to the coasts of
our two countries than they are to the coasts of the Federal Republic.
There remains our third coritention, and this in brief 1willrecall. Wecontend
that the principles and des e:mbodieciin ArticIe 6today have the character of
general customary law and have becoine such in a rnanner whichrenders them
binding on the Federal Republic. We think the Court wiIl appreciate that the .
previous contention which 1have sub:mittedto the Court makes it superfluous
forus to establish this point. But it isrxrtainly also our viewthat the principles
and rules embodied in Article 6 are now accepted as customary law and, as
such, are binding on the Fedt:ral Repilblic.
Our argument on the issue.of"custom" is before the Court in paragraphs 96
to 106 of our Common Rejoinder. However, I must add some further obser-
vations in deferenceto our opponents.
Essentiallywe base ourselvt:~on the sarneseveral elements as in our previous
contention, those nine elemeritswhich; 1 have so recently summarized for you.
As to the formation of the customary rule, we have stressed in our written
pleadings, and we again stress here, that the United Nations processes of
codification and progressive developmeilt of international law facilitate the
comparatively rapid recognition of a ciistomaryrule, especiallywhenthat rule is
implicitlydiscernible in State practice anci is also indicated by the vepl nature
ofthe matter inquestion.Just ELthe woirkof theCommission,the observations of
governments, the debates in the Sixth Committee and the work of the Geneva
Conference brought about tfie generitl ricognition of the exclusive rights of
the coastal State, so also theyiacilitated and brought about the general recogni-
tion of the equidistance-specid circunistances rule.
Again, Mr. President and Members of the Court, the Continental Shelf
Convention indisputably has the character of a general law-makingconvention.
If not, strictly speaking, a codifying convention, its very purpose wasto bring
about the general recognition of the ernerging right of the coastal State to the
confinenta1sheIf and the conso1idatio.nof the general law and régimeof the
continental shelf.
Now, this being so, this being the ~context,the 39 acceptances of tlie Con-
vention and the considerable :$tatepractice delimiting continental shelf bound-
aries,in conformity with the principles of Article 6, would seem to us to con-
stitute the best possibleevidenceof opiniojurisof the recognition bythe general
body of States as law of the rules emtiodied in the Convention.
Here, Mr. President, the coilduct of the Federal Republic itselfin relation to
the Convention is also signifiant. I do noi mean simply that it signed the Con-
vention or that it went quite a long distance towards ratification. These acts,
though they represent a certain movement towards the Convention, are not
obvioudy definitiveexpressiorisofopiriiojurie sither on the plane of contract or
of custom. But the Federal Republic:,which had previously repudiated the
whole doctrine of the continental shelii,reversed its position-and no discredit
to it-and by formal proclarriation c1,zimedthe exclusive rights recognized in106 NOR^ SEA CON~INENTAL SHELF
Articles 1 and 2 of the Convention. In doing so, it referred expressly to the
signature of the Convention by 45 other States and the acceptance of the Con-
vention by 21 States, asit then was, and formally laid claim to the coastal
State's exclusiverights.
It said, and these are the words:
"In view of the development of general international law as expressed
in recent State practice and inparticular in the signing of the Geneva
Convention on the Continental Shelf. .."
and it then, in its very next breath, referred to the detailed delimitation of the
German continenta1 shetf vis-à-vis the continental shelves of other States as
remaining subject to agreement with those other States. In its reference to the
development of general international law it made no distinction between
Articles 1 and 2 and the other articles of the Convention. Moreover it had
already, in aforma1diplomatic note to the Netherlands Government, invoked
the special circumstances exception in language strongly indicative of Arti-
cle 6. 1 mentioned the terms of that note eadier in rny speech. And, a few
months after it had issued the proclamation, in the declaration made jointly
with the Netherlands to which 1have previously referred the Federal Republic
spoke of the Partial Boundary Agreement as "constituting an agreement in
accordance with the first sentence of paragraph 2 of Article 6".Nor did it fail
to mention Article 6 in announcing its intention of promoting the conveningof
a multilateral conference of al1the North Sea States, a conference which never
happened.
The learned Agent for the Federal Republic argued (on pp. 25 to 26,
supra, of the record of the first day) that the Federal Republic had not entered
into any legal commitment to accept the equidistance method in the delimita-
tion of its boundaries. But that, as we have so often to remind Ouropponents,
is not the question. The question is whether the equidistance-special circum-
stances rule embodied in Article 6 is now expressive of customary Iaw and
binding on the Federd RepubIic. NO doubt, the Federal Republic has not
entered into any legalcommitment with respect to that rule on the contractual
plane-on the plane of the Convention itself.But wecontend that, on the plane
of custornary Iaw, the Federal Republic did by its conduct and by its for-
mal acts commit itself to the recognition of the law in Article as customary
law.
At this pointMr. President, by way of introduction to the question of reser-
vations, 1 should like to say a little more about the formation of custornary
law under the influenceof a Iaw-makingconvention. The Draft Convention on
the Law of Treaties has an express provision on the point. Articles 30 to 33 of
the Draft set out what 1may compendiously refer to as the law governing the
relation of third States to treaties, and notably two fundamental rules:
First, that an obligation arises for a third State only if the parties intend the
provision to be the means of establishingthe obligationand the third State has
expressly accepted it.
Secondly, that a right for a third State arises only if the parties intend to
accord that right to it or to a group of States to which it belongs, or to al1
States, and the State in question assents thereto. And here there is a presump-
tion of the State's assent unlesa contrary intention is indicated.
1 ask the indulgence of Mernbers of the Court who were formerly my col-
leagues on the Commission and who wilI be al1 too familiar with this matter.
These rules, which I have slightly abbreviated in stating them for the Court,
are then followed by Article 34which, in the Vienna text, reads: ARGUMENTOF SIR HUMPHREY WALDOCK 107
"Nothing in Articles .30to 33 precludes a rule set forth in a treaty from
becoming binding upon a third :Stateas a customary rule of international
law, recognised as such, or as a general principle of law."
Now, of course, the very sbject of thjs provision was to safeguard the pro-
cess of the formation of customary law upon the framework of a convention,
especially of a generaI law+.making<convention,notwithstanding anything in
the rules of treaty law goveriiingthe relation between third States and treaties.
Article 34, in short, distinguishes clearly between the position of third States
under treaty law and under custornaiy law.
The Federal Republic dois not claim to have acquired its exclusive rights
over the continental shelf by having assented to Articles 1 and 2 of the Con-
vention in accordance with the prov.isionthat 1 have just recatled concerning
the rights of third States. It i:;interesting to see what would'have happened if it
had acquired its rights in thrrtway.
If one were to regard the recognition of the rights of the coastal States in
rather the same manner astreaties coriferring rights on ail States' passage
through water-ways, etc., what wou'ldbe the position? Well, the third State
that acquires its right by ass~:nis,urider an express provision of Article 32 of
the Vienna Convention, bou-ndto co:mplywith the conditions attaching to the
exercise of those rights.
The Federal RepubIic claims that the State practice plus the numerous
signatures of the Continental Shelf Convention established the exclusiverights
of the coastal Stateas rights under ciistornary law. And it is on that basis that
it claims these rights, At th:iametime it totally rejectsthe idea that it is in any
way bound by the treaty to comply with the conditions attaching under the
treaty to the exercise of its rights. In short, it rnust place itself emphatically on
the plane of custorn, and not that of Ireaty.
How then can it conceivatily,whether directly or by anology, invoke a right
to make a reservation, actual or notional, to Article 6 of the Convention? The
right to make a reservation isa contra.ctua1right, exercisableonly in connection
with becoming a party to the treaty and at the very moment of definitively
expressing consent to be bound by the treaty. Nor does the law of treaties
admit that a State which ha$;accepted a treaty without reservation may after-
wards modify its acceptance byintroilucing a reservation. It is on the plane of
custom tSat the Federal Republic fiist clairned its right over the continental
shelf and it is on this same plane that hm claimed its rights before the Court.
Accordingly, we who are F'artiesto the Convention without any reservations
whatever are entitied to insist that the Federal Republic shall have its rights
adjudged on the plane of custom which knows no reservations.
1 now turn, Mr. President, to wha.tthe learned Agent catled his most con-
vincing argument against the allegetl customary law character of the law in
Articte 6: the fact that Article 12 expressly allows reservations to al1articles
other than Articles 1, 2 and 3. We have already dealt with this point in our
written pleadings and ask tht: Court to refer especiallyto paragraphs 99 to 103
of our Comrnon Rejoinder. In brief, we pointed out that a wide freedom to
formulate reservations is quite normal in general multilateral treaties and that
such majorcodifying conventions asthose on the territorial=a, high seas and
diplornatic relations contain no c1au:;erestricting the making of reservations,
and that notwithstanding you find :$orriereservations to those conventions.
We further pointed out that the records show that in the present instance the
reservations clause was introduced in Article 12 more for the purpose of pro-
hibiting reservations to Articles 12 and 3 than of authorizing reservations to108 NORTH SEA CONTINENTAL SHELF
Articles 4 to 7, and that its introduction cannot be understood as evidencethat
these Articles were not considered to be an integral and important part of the
Convention. In addition, we pointed out that a reservation made to Article 6
which is incompatible with the fundamentai provisions in Articles 1 and 2
would in aoy casebe inadmissible. Thus, we said it could not be assumed from
Article 12 that the Geneva Conference intended to allow a total freedom to
contract out of the equidistance-special circumstances rule.
Our opponents, on pages 18 to 20, supra, of the first day's record, have
invoked certain provisions of Articles 16 and 17 of the Draft Convention on
the Lawof Treaties.Article 16, paragraphs (a) and (b), they Say,providésthat
a State may formulate any reservation not expressly or impliedly prohibited by
the Treaty; this is a slight paraphrase but that is the effect they give to those
provisions and that, since under paragraph (c) the express condition of corn-
patibility with object and purpose is attached only to cases where the treaty is
silent upon the matter of reservations, it is irrelevant in cases where the treaty
does contain a provision regarding reservations. This contention, Mr. Presi-
dent, is onlya half-truth. Article 16(a) excludes altogether the formulation of
reservations which are prohibited by the treaty, and the reason is that, by
thejr prohibition, the parties have themselves completelyforeclosed the ques-
tion of whether the reservation is compatible with the object and purpose of
the treaty. And this, of course, is preciselywhat they have done in Article 12 of
the Continental Shelf Convention with reference to Articles 1,2 and 3. Any
reservation, therefore, excludingor varying the legal effectof Article 1,2 or 3,
is wholly inadmissible by reason of Article 12 of the Convention.
ClearIy, the reservation is no less inadmissible if, although attached in forrn
to another article, it in fact excludes or varies the legal effect of Articl1, 2
or 3. In short, the express prohibition of reservations to Articles 1 and 2 may
and does place a limit upon the kind of reservations which may properly be
formulated with referenceto Article 6. In our view, this limit would be passed
by a reservation which sought to negative altogether the operation of the
equidistance-special circurnstancesrule in the application of the Convention,
for the equidistance-proximity-principle, adapted where necessary to take
account of special circumstances, seems to us inherent in the concept of the
coastal State's exclusiverights over the adjacent continental shelf.
It is significant, Mr. President, that no reservation has been made by any
State denying in principle the application of Article 6.The four reservations
that have been made to Article 6 al1concern the interpretation and application
of the special circumstances exception in particular cases. The learned Agent
for the Federal Republic mentioned the reservations of two States from which
he claimed to derive particular support.
One was that of YugosIavia which he said means that Yugoslavia does not
want to recognize any exception to the equidistance line under the title of
"special circumstances". No doubt this is so-but Yueoslavia did not denv the
refevancein principle of special circurnstances,carefuty adaptingher lan&age
to that of Article 6. she said: "in delimitin~ its continental shelf Yueoslavia
recognizes no special circurnstances whichshYould influencethat delimitation".
If the Court will turn for a moment ta OurCommon Rejoinder, 1,pages 563 to
565, it can see at a glance the kind of delimitation apparently now envisaged
by Yugoslavia. This, as we have shown in Ourwritten pleadings, is an equidis-
tance line modified to take account of, to use a neutral expression, special
factors constituted by particular islands.
The second reservation was that of France, the wording of which the learned
Agent described as very significant. This reservation, as the Court will recall, ARGUMEb Oir SIRHUMPHREY WALDOCK 109
States that in the absence of a specificagreement, France willnot accept that
any equidistance boundary sfiallbe invoked against it if it liesin areas where, in
the opinion of France, there are special circumstances within the meaning of
Article 6 and then the Bays of Biscay and Granville, the Straits of Dover and
the North Sea off the French coast arespecified as the areas concerned.
It is not for us, Mr. President, to go irito the question of the validity of this
reservation, which has attracted categorical objections from four States, two
of which have not the remotest connection with the areas to which it relates.
We merely point out that it contains the most explicit invocation of the special
circumstances exception in A.rticle 6. It tloes not deny but affirmsthe applica-
bility in principle of Articlijin the delimitation of the continental shelf. Nor
will it escape the Court that France has other coasts elsewhere to which her
acceptance of the Conventiori applies, unclouded by any form of reservation in
regard to Article6. Our opponents have indeed drawn attention to the islands
of St. Pierre.and Miquelon and there, Mr. President, if 1 may use a hornely
phrase, the boot is very much on the other leg in regard to the equidistance-
special circumstances rule.
A reservation, even when establislied, modifies the operation of the pro-
vision to which it relates only to the e.ntentof the actual reservation. A reserva-
tion such as that of France cannot, iri Ourview, have the effect of dictating to
other States the viewwhich they mus(.take of the extent of their own exclusive
rights over the continental slielf, as the learned Agent almost seemed to sug-
gest. That would be a gross violation of the principle of the equality of States.
Moreover, those exclusive rights are by their very nature, as we have empha-
sized, Nghts attaching ipsojlrre to the cciastal State and valid ergaonitzes.In
addition, what constitutes spccialcircilmstanceswithin the meaning of Article 6
is not a matter of opinion, i-tis a matter of law or, Mr. President, the present
case would not be before thia Court.
What is the precise legal effect of sucli reservations as those of France and
Yugoslavia, we do not think we are really called upon to say in this case. We
are calledupon only to show i:hatthe faculty ofmaking resewations to Article 6,
admitted by the Geneva Conférence, isncitincompatible withthe crystallization
of the equidistance-special circumsta-ncesrule under the influenceof the Con-
vention as a rule of customary law governing the continental shelf. It is our
respectful submission that this we have done.
1should add that, in any svent, the reservations question touches only our
contention regarding the status of the equidistance-special circurnstances
rule ascustomary law. It iswholly irri:levanttoour previous contention regard-
ing its character as the generally m:epi.ed law and, of course, to our other
argument arising from the ergo ornnesvalidity of the exclusive rights of the
coastal State over the continental shr:lfadjacent to its coast.
Before finally leaving the question of reservations 1 should like, because of
its wider implications, to deal with a point made by the learned Agent about
Articles 1 and 2. It is on page 19, supra, of the first day, where he sought to
argue that there can be no question of a reservation to Article 6 being incom-
patible with Articles 1 to 3. He then said that Article 1 had no other purpose
than to defineand delimit tht:continental shelf in itsjuxtaposition to the terri-
torial sea, on the one hand, and the open sea, on the other. He also said that
Article 2 recognized the sovei-eignrights of the coastal State before their coasts
without using the term adja.cent in this context and without attempting to
decide conflicting claims of two or rriore States to the same areas of the con-
tinental shelf whicheach of tllem might consider to lie before itsown coast and
to the natural continuation of its territory. He then insisted that it was the110 NORTH SEA CONTINENTALSHELF
purpose of Article 6 alone to provide a rule for resolvingconflictsin the delimit-
ation of continental shelves.And, recalling the phraseology in Article 6 "where
the same continental shelf is adjacent to the territories of two or more States"
and, in paragraph 2, "adjacent to the territory of two adjacent States", he
concluded that any atternpt to drawfrom the term "adjacent" used in Article 1
a confirmation of the principle of equidistance must fail. On this basis, he con-
cluded that reservations to Article 6, excluding the application of the equidis-
tance method in certain areas, could not possibly be incompatible with Arti-
cles 1to 3 of the Convention.
We cannot share our opponents' interpretation of Articles 1 and 2 of the
Convention, since itappears to us defective in at least two respects. The first
is that the learned Agent'sparaphrase of Article 1hardly seernsto do justice to
its rneaning, and the second is that, in our view, their'interpretation clcarly
offends against the cardinal rule of treaty interpretation thaa treaty mugt be
read as a whole.
Article 1, in the nature of thing;, could not fail to define and delimit the
continental shelfinjuxtaposition to the territorial sea, on theone hand, and the
open sea, on the other, for that ispreciselywhat has to be done to fixthemean-
ing in law of the terrn "continental shelf". It is also true that Article 1is essen-
tially a definitions article, for it begins with the words "For the purpose of
these articles,the term continental shelfisusedas referring", etc. BuMr. Presi-
dent, this only makes it the lessexcusable thatour opponents should not inter;
pret the term "continental shelf" in Article 2, paragraph 1, by referenceto the
meaning givento it in Article 1.
The definition of "continental shelf" in Article I is realaygood deal more
significant than Our opponents would have you believe, Mr. President. In the
High Seas Convention the Geneva Conference had to define the term "high
seas" and it did so in Article1 by sayingthat the term rncans "al1parts of the
sea that are not included in the territorial sea or in the interna1 waters of a
State". Article 1 of that Convention rnakes no mention of the coast or of
adjacency. And, since the continental shelf is, in principle, simply the seabed
and subsoil of the high seas up to 200 metres or to the lirnit of exploitability,
it would have been perfectly possible and much simpler to define the conti-
nental shelf in a sirnilar way, if that was al1that the Conference had in mind.
Article 1, however, now al1too familiar to the Court, definesthe term "conti-
nental shelf", as used in the Convention, as "the seabed and subsoil of the
submarine areas adjacent to the coast but outside the area of the territorial
sea". If Article 1 had been intended to be a definition of the continental shelf
merely in the abstract, the referencesto adjacency and to the coast would have
beenentirely superfiuous and even illogical.But it was not a definition purely in
the abstract; what it was of course, was a definition of the continental shelf in
its relation to the coastAnd the purpose of the reference to the adjacency of
the submarine areas to the coast can only have been to express their propin-
quity or contiguity to the coast.
We think al1this to be almost too clear for discussion, but 1 hope that the
Court will bear with me if I brieflydo what Ouropponents ought to have done,
narnely read the meaning givento "continental shelf" in Article 1into Article 2,
paragraph 1. The result, of course, is that this provision now recognizes that :
"The coastal State exercises over the seabed and subsoil of the sub-
marine areas adjacent to the coast but outside the area of the territorial
sea sovereign rights", etc. ARGUMENT OF SIR HUMPHREY WALDOCK 111
In short, the notionofpropinquity or contiguity ian integralelementin the
recognitionof the sovereign rightof the coastal State.
1have,of course,alreadyaddressetitheCourttodaygenerallyon the question
of adjacencyand propinquity,and 1respectfully subrnit that whaIhavejust
said about our opponents'argumentsand ouropponents'interpretationof
Articles1 and 2 only serve:;to reinforcewhat 1 have previouslysaidon this
whole question.
The Court rase a#Ip.???. NORTH SEA CONTINENTAL SHELF
SIXTH PUBLIC HEARING (30 X 68, 10 a.m.)
Present: [See hearing of 23 X 68.3
Sir Humphrey WALDOCK :When the Courtadjourned yesterday morning 1
had nearly finished rny presentation of our own case, and today 1would only
wish to add a fewcomments on the State practice in answer to the argument of
Professor Oda, for it was he who focused your attention on certain of the
precedents. Ishouid have been only too happy to find myselfin agreement with
my learned opponent, so graceful was hisaddress to the Court. Unfortunately,
however, we are in rather profound disagreement with him in his reading of
some of the State practice.
1beginby referring, as1have already done, toour full and careful analysisof
the continental shelf precedents in paragraphs 58 to 75 of our Common Re-
joinder. And 1Sayat once that our opponents' arguments do not seemto us to
haveshaken in any way the account which we there gave of the State practice.
The learned Agent, on pages 20 to 22, supra,of the first day's record, was
concerned to argue that al1the agreementsfor the delimitation of the continental
shelf on the basis of the equidistance principleare really almost worthless as
evidence of a genera1obligation for al1States to accept the equidistanceline as
the only or the general rule. He complains, in effect, that they are agreements,
maintaining that they only show that the parties were agreed that the equidis-
tance line would produce an equitable apportionment in the particular case.
In the present instance, several of the agreements, those in the North Sea in
particular, are manifestly based directly and expressly on the principles of the
Convention, a general law-making Convention. Others are settlements of
disputes arising from differinginterpretations of their respective rights, or of
the respective rjghts of the parties under the principIes expressed in the Con-
vention. These agreements, in our view, are no less clearlyvalid evidenceof the
general acceptance of those principles,
As to unilateral acts, Mr. President, they are the rnost characteristic form of
evidence indicating the opinijouris regarding a practice generally accepted as
law.Ouropponents have inthe present casesought to depreciatethe valueof the
unilateral State practice whichwehave presented. But when, for exampIe,in the
present context, you have parallel unilateral acts of two States relating to the
sarneboundary, both of which accord with the principleslaid down in a general
law-making convention to which neither of them are parties, is that not the
highest possibIe evidence of opinio juris,of no less value than an agreement
expressly based on the recognition of the law in the convention? This, we shall
find, Mr. President, is precisely the position in regard to the Kuwait-Iraq
boundary.
1rnentioned earlier in my speechthat there are one or two special precedents
, of an exceptional character and we have dulynoted them in our written plead-
ings. Our opponents at the present hearings have recalled the Chile-Peru-
Ecuador delimitations by reference to parallels of latitude and the Senegal-
Portuguese Guinea rectilineal delimitation.
As to the South Arnerican delimitations, we pointed out, in paragraph 68
of our Common Rejoinder, that the decreesof the three States in question form
part of highly special understandings and agreements between the three States
concerned. That this was indeed the case can easily be seen by refemng to ARGUMENT OF SIR HUMPHREY WALDOCK 113
Whiteman'sDigeso tf InternationnlL~w, Volume4, pages 1089to 1092,where it
also appears that the agreerrientswzre primarily concerned with the resources
of the superjacent seas, the seabed and subsoil being regarded by those States
as being included in the largcr claim. They are dated 1952,before the develop-
ment of the Iaw of the continental sht:hy the International Law Commission.
The Senegal-Portuguese Guinea delimitation is reproduced in our Counter-
Mernorials from the same volume of Whiteman's Digest at page 335. The
information in the Digest coricerningit is very scanty and we know nothing of
the considerations which inspired this delimitation. However that may be, it
seemspertinent to point out that botli Senegaland Portugal have since ratified
the Geneva Convention without any reservation whatever to Article 6 of the
Convention.
Before1return to the Kuwait-Iraq boundary, Mr. President, 1rnust ask your
indulgence in allowing me to say a few words about the well-wornargument of
our opponents that ail medim tninesinust be left aside as precedents, and that
alrnost every lateral boundsrry between adjacent States must be classed as
median lines except those between the Federal Republic and its neighbours. 1
askforthe Court'sindulgencebecauseithas seenthisargumentrather thoroughiy
hamrnered by both sides in the writien pleadings. We dealt with this rnatter
with some thoroughness in paragraphs 41 to 47 of our Common Rejoinder and
we are content to rest upon that comprehensive and detaiIed rebilttal of what
we believea completely unjustifiedatiempt to drive a sharp wedgebetween the
equidistance principle in its rnedian line iorm and the equidistance princiine
its lateral forrn.
1take the matter up again only to niake a fewcornments on the referencesto
the Soviet-Finnish and Norwegian-Swedish delimitations. The former is one
of those cases where, at its stiirting po,int,the Iine is, beyond question, a lateral
boundary through territorial waters. Our opponents concede that the line may
for some distance be considered a laieral boundary but then they Sayit loses
this character and becornesone of tho:;eworthless median line precedents.They
emphasize that the lateral piirtof the boundary isnot an equidistance line.
Well, we pointed out, in par;~graphs 102 of the Danish and 96 of the Nether-
lands Counter-Memorials that the inshore non-equidistance part of the bound-
ary is the result of a highly special circumstance, namely the Soviet-Finnish
PeaceTreaty, the date and tho circumstances of which will be perfectlyfamiliar
to the Court. Professor Oda, on page 60, supra, of the third day's record,
conceded the existence of the :jpecialcircumstance whichwehad menticinedbut
he stiIl claimed that on balance this is "a negative precedent as to the equidis-
tance method". We can only leave that aspect to the Court.
In truth, Mr. President, we think this precedent more interestinfor the way
in which, in the hands of our oppoinents, this lateral boundary changes its
character as it approaches the open sea and becomes a boundary between
States with opposite shores. T'henit re:ceivesfrom our opponents that benedic-
tion of "ust and equitable apportionment" which, it seems, theyaccord to al1
median lines.
Our opponents, on the sarnrpageof the record, now givetheir benediction to
another lateral boundary-tietween Norway and Sweden-which, in their
hands, suffers a change of personality alrnost before it has left the shore and
quickly achievesthat blessed state of oppositeness and median legality.
We referred to this precede~itin our Common Rejoinder, 1,and, as Professor
Oda said, you will find a map on page 55: o3f that document. He seeksto deny
this precedent any relevance. "For one thing", he said, "this line lonks very
much indeed like a median line, sinc,zthe relevant coastal fronts of both lie114 NORTH SEA CONTINENTAL SHELF
almost opposite each other"; while we still think this a lateral boundary in
narrow waters. But, we emphasize, whether lateral or median it remains a
perfectly good example of the application of the principles of Arti6.eBut we
also ask the Court to note that the coastal fronts on the two sides of this
somewhat less than rectangular bend are, in the Federal Republic's view,to be
characterized as opposite States.
The progress of our opponents' thoughts on this matter, Mr. President,
awakens our interest; for we are wondering whether wetoo may not be entitled
to receive the benediction of oppositeness and our common boundary-the
Danish-Netherlands boundary of the 1966Treaty shownon the map in Court-
achievethis blessedmedian state of legaiity.Bno stretch of imagination can we
be calIedadjacent States and we are, and this appears even better in the map in
the Danish and Netherlands Counter-Memoriais which shows the different
territories in colour, if rather slantingly, opposite each other on the shores of a
somewhat more than rectangular bend. Whyshould not the two Iateral bound-
aries now before you, as they get farther and farther from their points of
departure, suffera sea-changein strict accordancewith our opponents' doctrine
and happily rnerge together in a state of median legality?After all, in the
Mernorial-you can seeit on the chart at 1, page 24-the Federal Republic did
write against the line showing the Danish-Netherlands boundary the magic
words "median line".
The Kuwait-Iraq boundary has not yet been pronounced a median line and,
in consequence, comes in for criticism. Professor Oda dealt with the Kuwait
concession and the Iraq unilateral delimitation separately and he did not ex-
plain why or how it should come to pass that the unilateral Iraqiline and the
unilateral Kuwaitiindication ofitsapproximateboundary ina concessionshould
coincide in an equidistance line. The independent, parallel acts of these two
States, neither of them a party to the Convention, recognizing the principle of
equidistance is, as1 said a little while ago, cogent evidence of the generally
accepted character of the principlesembodied in Article 6, and it is al1the more
cogent in that the boundary is unmistakably a lateral one, while Iraq is in an
infinitely more disadvantageous position than the Federal Republic.
Professor Oda, on page 59, supra, of the third day's record, seemed to
imply that we have presented the Kuwaiti-Shell concession to the Court as a
treaty, but need 1 tell the Court that we do no such thing, it is the parallel,
unilateral acts of Kuwait and Iraq on which we especially rely.
Professor Oda hirnself, on the same page-page 59-seeks to extract a
good deal from the branch of concessions in this cornplex area of the Persian
Gulf. He there observed tint Kuwait, which he saidshares sovereignty overthe
neutral zone betweenit and Saudi Arabia, granted a concession touching upon
the coastal front to the Arabian Oil Company in 1958, and that this latter
concession overlaps, significantly, into the Shell concession delineated on the
map in the Common Rejoinder. He claims that this means that the lines in-
dicated on the map cannot be regarded as final and, further, that it greatly
reduces the Shell concession asa precedent for the employment of the equidis-
tance method involving long distances offshore.
Continuing on the same page he observed:
"To cornplicate the situation depicted by this misleadingly simple map
even further, it shoulbe noted that the Government of Iran has granted
two other oil cornpanies concessions whichagain significantlyoverlap and
intmde upon the Kuwait-Shell concession areas depicted. When this is
taken into account, 1would submit that, as an example of a continental ARGUMENT OF SIE: IJMPHREY WALDOCK 115
shelf allocation achieved by the:strict and undisputed application of the
equidistancemethod, this precedent becomesnext to valueless.If this isnot
enough, while we areon the sutiject of this exampfe brought forth by Our
opponents, it should be noted thataprovision in the Kuwait concession to
the Arabian Oil Company stated that demarcation should be finalized by
negotiation with a view to a determination on equitable principles."
Now, Mr. President, thesa observations cd1 for a number of comments.
The first, some exception might be taken to the statement that Kuwait and
Saudi Arabia share the sovereignty civerthe neutral zone, for their relation to
the neutral zone isand has been a good tieal more cornplex. Bu1pass over the
point because 1 do not ihi~ikthat i.t need trouble the Court. What is true,
however, is that the existence of the so-called neutral zone is an enormous
complication in the tangled skein ofcontinental shelfboundaries at the northern
end of the Persian Gulf.
Consider for a moment, Mr. President, what this rneans. Somehow and some
day there have to be deterniined no less than seven boundqies in that corn-
parativeIy crowded area: 1. the 1ra.q-Kuwait boundary with whicft we are
familiar and which both Stktes have intiependently assumed to be the lateral
equidistance line;2. the Iraq-Iran bountiary; 3. the northern boundary of the
neutral zone with Kuwait; 4. the Kiiwait-Iran boundary; 5.the neutral zone-
Iran boundary; 6. the southern boundary of the neutral zone with Saudi
Arabia;and 7. the Saudia Arabia-Iran boundary of whichthe Court has heard
something in the present proceedings. Add to this a number of strategically
placed islands belonging to !;orneof the parties and the challenging in one or
two cases of the sovereigntyof the islandsand you havea jigsaw-puzzledificult
enough even for objective solution by a court. You could, indeed, also add one
ortwo strategically placed Iow-tideelevations;
In such a situation, the fact that an Iranian concession overlapa Kuwait
concession rneansnothing more than that these two States are in dispute asto
how and where their median lines should be delimited, and this is contplicated
by the problem of the neutral zone-Iranian boundary. But, as 1said earlier in
my speech, the frarnework is the priricipleand rules in Articl6.How can it
then besaid that thisdispute affectsthe value ofthe Kuwait and Traqprecedents
for the delimitation of their mutual, Iateral boundary.As to the ArabianOil
Company concession, this would seernto be affected by the neutral zone corn-
plication and certainarrangtments rxisi: asto this concession and the Shell
concession.
Neither the Kuwait Govesnrnent nor the further concessions mentioned by
Ouropponents are before the Court. Even if our opponents' observations were
to be accepted at their face .value,they wouId not touch the relevance of the
Kuwait-Iraq precedents of piiraIlel di:limitations aflateral boundary on the
principle of equidistance.
In so far asour opponents may be suggesting to you that Kuwait's position
in regard to the principles coritainedin Article 6 of the Convention is equivocal
or indehite, 1 am bound to Say that according to my information this is
certainly not the case.
Prior toher independenceKiwait acted on the adviceofthe LegalDepartment
of the United Kingdom Foreign Offici:,and the United Kingdom, as the Court
knows, adheres solidly to the principles and rules contained in Article 6.
According to my understanding, since independence Kuwait, in seeking the
solution of the boundary proldems wtiichhave arisen betweenher and some of
her neighbours as a result of the coinplexities to which 1 have referred, ha
taken her stand upon the principles and rules in Article 6.116 NORTH SEA CONTINENTAL SHELF
In concluding rny comments on our opponents' observations on the State
practice,1 must ask you, Mr. President, to giveyour attention for a moment to
Professor Oda'srernarks on what he refersto as "solutions attempted by means
of unilateral State acts". Stating that there are fewsuch instances, he finds only
four that he considers as falling substantially within this category, namely first
Iraq, which we have discussed in paragraphs 71 and 72 of our Cornmon Re-
joinder; Belgium, which we discussed in paragraph 104 of the Danish and
paragraph 98of the Netherlands Counter-Memorials, and whichwereviewedat
length in paragraphs 61-63 of our Common Rejoinder; the Soviet Union's
Decreeof 6 February 1968,whichwediscussedin paragraph 66of our Common
Rejoinder, and Australia's Petroleum (Submerged Lands) Act of 1967,which
again we reviewed at length and illustrated in paragraph 69 of our Cornmon
Rejoinder. Those are the four instances.
We feel, as 1have already indicated, that he should at least have added the
Kuwait grant of a concession indicating the Iraq boundary to their list of
unilaterai acts.
Learned counselforthe Federal Republic suggestedto you on page61, supro,
that youcandiscardal1thesecasesashavingnorelevancewhatsoeverto theissues
which you are called upon to decide. This summary disposai of what we think
are, together with the Kuwaiti precedent, decidedly important elements of
State practice, he thought would bejustified on three grounds.
First, hesaid, there is,of course, no assurance that the parties who unilaterally
acted willin the future maintain their respective positions. Well,wefeelthat we
can safelyleavethat argument to the appreciation of the Court. If this possibility
were to be treated as a releyant factor, we wonder how so many customary
rules could have corneinto being in international law.
Secondly, Our learned opponent says that the States which have thus uni-
laterally acted are presumably wellcontent with a solution they themselveshave
chosen. This seemsto us, Mr. President, very much to beg the question, seing
that those four cases include the cases of Belgiumand Iraq.
Thirdly, hesaid, "to our knowledgeat thepresent time,theboundarysolutions
enunciated unilaterally, apparently do not seemto present inequitablesituations
to the adjacent States concerned". We thinkthis the wrong way of putting the
matter. For the obviously pertinent point is the opposite one: that, in the case
of Iraq and Belgium, ihe solutions adopted are manifestly dictated by an
opiniojuris as to the principles in Articl6,because otherwise the States con-
cerned might have been expected, likethe Federal Republic, to look for grounds
upon which they might try to lay claim to larger area.
In general, Mr. President, we maintain our account of the State practice and
the concIusionswhich we ask the Court to draw from it. We believethat these,
our accounts and conclusions,withstand al1the criticismsthat havebeendirected
at them by our leamed opponents.
1now pass, Mr. President and Members of the Court, to the final stage of
rny address, in which 1propose to touch on certain aspects of our opponents'
case as an introduction to the more detailed arguments of mycolleagues,the
Agents of the twc)Governrnents for which I appear. Ican be cornparatively
brief, as 1have already presented to the Court our general observations on our
Opponents' case.
1 leave aside the massive onslaught launched by Our opponents on the
equidistance-specid circurnstancesrule, whichwebelieveissufficientlyanswered
by the statement of Our own case and by what we have said in our written
pleadings. Looking, therefore, only at the affirmative part of our opponents'
case, we understaad that they now base themselveson two main propositions. ARGUMENT OF SIR H~MPHREY WALDOCK 117
First, if the principles an11rules ernbodied in Article 6 are excluded by the
Court as not being applicable as between the Parties, then the Court should
decidethat, in their words, "the governing principle isthat each coastal State is
entitled to a just and equitable share".
Secondly, if the principles and ruk:s embodied in Article 6 are applicable as
between the Parties, then the Court should decidethat there exists with respect
to the Federal Republic's North St:a coast a case of special circurnstances
constituting an exception to the equidistance principle within the meaning of
Article 6.
I should add, Mr. President, that myfcirrnulation ofour understanding of the
second proposition is subjeci:to the reseivation that we are still not clear as to
the meaning attached by tkie Feder,al I<epublic to the words in Article 6-
"another boundary line isjustified by special circumstances".
In their first proposition, Our opponents say, in the rnanner so lucidly ex-
plained by Professor Oda on pages 61 and 62, supra, of the third day's
record, that in the present cases neith.eiitreaty nor a customary law basis can
be foundfrom which to deducethe principlesand rules applicable to the delimi-
tation of the boundaries, and that in consequencethe Court must have recourse
to paragraph (cl of Article 38 of tht:Statute of the Court. In short, they ask
you to apply the principle of the 'iju:stand equitable share" exclusivelyin the
character of a general principle of I;awrecognized in national legal systems.
We dealt with this proposition, Mr. President, in paragraphs 19 to 25 and
108to 120of our Common Rejoindei-,to which 1respectfullyaskthe Court to
refer. The wayin which1be1ii:vethat :ican best help the Court on this point, at
the present stage of the proceedings, is to state succinctly to you the principal
objections which we advance against our opponents' plea for recourse to
paragraph (c) .
First and foremost, we do inotthink:that there is any question of a gap in the
law or of a non ~ique6.We believe that in our third contention y011have a
customary rule applicable directly and specificalIyto the question at issue.
We believethat in our first contentio~iyou have a clear basis for your decision
in the fundamental rules of maritime international law whichare inherentIyof a
customary law character. Wi: beIieve that in Our second contention you also
have a clear basis for your di:cisio~i,in a judicial decision of this Court and in
the cornpetence of a coastal State ret:ogriizedby customary law to delimit its
maritime sovereignty and jurisdiction in accordance with the generally recog-
nized principles and rules applicable in the matter.
Secondly, in so far as the e~llegedpirincipleof the "just and equitable share"
isbased on the notion of a division of cornmon resources or a division of a
common area of the contineiital shelf; we consider that it must be rejected as
incompatible with the principle of the exclusivity of the rights of the coastal
State over the continental sht:lfadjact:nt to its coast.
Thirdly, we consider that the alleged principle is incompatible with the
principle of the continental s'helfa.a coritinuation or extension of the coastal
State's sovereignty over the adjacent continental shelf.
Fourthly, we consider that the alleged principfe is incompatible with the
fundamental principles of internatioii3 la& goierning maritime sovereignty
and jurisdiction which concern themsi:Iveswith the delimitation of boundaries
in space and not with the sha.ringout of resources.
Fifthly, we consider that the alleged principle in the form in which it is
presented to the Court contains in itself no objective criteria by which to
determine its application, anclcannot therefore be regarded as a true principle
or rule of Iawwithin the meaning of the Special Agreements.118 NORTH SEA CONTINENTAL SHELF
Sixthly, the objective criteria to which the Federal Republic proposes that
the Court should have recourse in applying the principle are unknown to inter-
national maritime law, and conflict with long established principles and insti-
tutions of international law.
Seventhly, we consider that the alleged principle of the "just and equitable
share" as it is presented to the Court is incompatible with the terms of the
Special Agreements, which ask for a decision regarding the principles applic-
able to the delimitation of particular boundaries over designated areas of the
continental shelf.
Eighthly, we consider that the particular application of the principle de-
manded of the Court by the Federal Republic in the present casesistantamount
to a request to the Court for an ad hoclegislativedecision or decision ex aequo
et bono and, as such, incompatible with the Statute of the Court, Article 38,
paragraph 2, of which is not applicable in the present cases.
Furthermore, Mr. President, we cannot forbear to point out that our op-
ponents are still resting their appeal to paragraph (c) of Article 38 on their
simple assertion as to the self-evident character of the principle. Despite the
extrerne importance which they give to this principle in the whole of their
argument, they have made no attempt to demonstrate to you the existence or
nature of the principle in the various national systems nor the legal categories
of cases to which it may have application in those systems. 1well remember,
Mr. President, in an earlier case-the Right of Passage case between India and
Portugal-the impressive evidence placed before this Court in support of a
daim to apply under paragraph (c) an alleged general principle of law recog-
nizing a right of passage to an enclave. But in this case, despite the objection
being raised in our Common Rejoinder, the Federal Government has givenyou
nothing to assist you in your appreciation of the merits of the principle, or its
scope, or the conditions for its application, or the categories of cases to which
it is considered appropriate. .
In concluding these general remarks on the question of our opponents'
invocation of paragraph (c),we further stress that we know of no decision of
this Court or of any other international tribunal which lends support to the
application of an alleged "general principle of law recognized by national
systems" which is in direct conflict with the specificpositive law governing the
matter and with the general principles of international law in the context of
which its appIication is requested.
Finally, Mr. President, 1 corne to their second proposition-the special
circumstances issuean which, as 1 stressed in opening, we have had the
Federal Republic's explanations of her position somewhat late in the pro-
ceedings. As 1 also stressed in opening, we recognize that this issue arises in
relation to each one of our contentions.
I shouId also like to recall my observationsin regard to the disagreement and
deadlock between the Parties king at the very root of the Special Agreements.
This point has a particular relevance in connection with the application of the
equidistance-special circumstances rule. When the point of disagreement and
deadlock is reached and the Parties are before a judicial or arbitral tribunal,
the focus narrows to the questions:
(1) what is the correct interpretation of the exception clause "unless another
boundary line is justified by special circumstances"; and
(2) do the facts of the case-and in this case the geographical facts of the
case-xhibit "special circurnstances which justify another boundaw line"
within the meaning of the clause. ARGUMENT OF SIR.HUMPHREY WALDOCK 119
The situation has changed a little since we now have some light on our
opponents' views concerninl:the application of the clause in the present case.
Ln this connection we were glad to note that Ouropponents, at any rate at one
point of their address, were in general agreement with us on one of the funda-
mental aspects of the application of the clause. This is where the learned Agent
for the Federal Republic said, on page 45, supra, of the record:
"The criterion that the special circumstances clausecannot be invoked
if the correction of the boundary is not justified with respect to a State
which Ioses by the con-ection, is on its face a simple truism; 1 agree to
what they Say,[and it is what wesayl the correction must also be equitable
or just to the losing Party."
His statement relieves me of the need to go further into the general legal
aspects of the clause. Necessarily, .the detailed application of the clause is
essentially linked with the fitcts and will be the subject of the address laofr
the learned Agent for Denmark.
1think, Mr. President, at the same tiine it may be helpful to the Court if 1
refer you to the main places in the pleadings where we, on Ourside, have tried
to deal with the development and :interPretalion of the equidistance-special
circumstances rule.
We traced the development of the eyuidistance-special circumstances rule
through the records of the C:ommiss:ionand the Geneva Conference in Chap-
ter 3 of Part II of our Counrer-Mernorials and we considered its meaning and
application in paragraphs 1215-15 6f the Danishand paragraphs 120-151of the
Netherlands Counter-Memorials. Wi: returned to the matter in Chapter 3 of
our Common Rejoinder. As 1 have said, 1 mention these references simply for
the record, that they may be for the convenience of the Court.
There is one point arising out of those pleadings on which 1 should Iike to
touch. One of the matters debated was whether the equidistance principle is
the primary and general rule or whether the two limbs of the rule are of equal
rank; and our opponents have indecd argued for almost the prirnacy of the
special circumstances clause,thus excluding the application of the equidistance
principle untiI it is shown tliat no other boundary lineisjustified by special
circumstances. Wesubmit th;lt in the pleadingswehave shown that the equidis-
tance principle was intended tobe the generaIrule and that the natural meaning
of the words of Article 6 d.ictates that interpretation. The very expressions
"another boundary" and "ju.stifiedby special circumstances" would seemto be
serious obstacles to any different interpretation.
Inconclusion, Mr. President and Niembersof the Court, 1should like simply
to underline four points.
1. We maintain that in the determination of any boundary under inter-
national law the question at issue is which of the two States coRcernedhas the
better claim in law to the areas involved.
2. Denmark and the Netlierlands are clairning to delimit their respective
continental sheIfareas in conformity with the accepted concept of the extension
of the exclusive sovereignrig.htsof a State over the continental shelf adjacent
toits Coast,in accordancewith an internationally accepted method of boundary
delimitation, and in accordance with the principles and rules of delimitation
expressed in the Continental lShelfConvention adopted in 1958for the purpose
of establishing the generally iacceptedprinciples and rules of international law
governing the matter.
3. The Federal Republic iri her casa on the just and equitable share isclaim-
ing Chatthe Parties shall be directed tciagreeupon the boundary on the basis of120 NORTH SEA CONTINENTALSHELF
a supposed principle of the just and equitable share, which is incompatiblewith
the generally accepted principles of international law for determining bound-
aries, furnishes no objective legal criterion for determining the boundary, and
finds no mention in the Continental Shelf Convention of 1958.
4. The Federal Republic in her case on the special circurnstances clause is
asking you, with respect to two quite distinct continental shelf boundaries off
two different stretches of coast, to uphoId a clairn of special circumstances
where neither the Danish-German coast nor the Netherlands-German coast
exhibit any exceptional geographical feature such as might fall within the
special circumstances clause.
1 can only now thank you, Mr. President and Members of the Court, for the
patient hearing which you have given me.
ARGUMENT OF PROFESSOR RIPHAGEN
AGENT FOR THE GOVERNMENï OF THE KINGDOM OF THE NETHERLANDS
Professor RIPHAGEN : Mr. President and Members of the Court, under the
Special Agreement of 2 February 1967, between the Government of the
Federal Republic of Germany and the Government of the Kingdom of the
Netherlands, your Court is respectfullyrequested to decide what principles and
rules of international law are applicable to the delimitationas between the
Parties of the areas of the continental shelf in the.North Sea whichappertain to
each of them. An identical request is addressed to the Court by a Special
Agreement betweenthe Govemment of the Federal Republic of Germany and
the Government of the Kingdorn of Denmark.
With your permission, Mr. President, 1 will attempt to assist the Court in
its search for the applicable rules of international law, by indicating briefiythe
various options which, in abstract theoryare open to an international regula-
tion of the limits in space of sovereign rights of States. 1 will then describe
what, in our view, is the choice between those options, made by the actual
rules and principles of international law as they have been developed up to the
present day and are stilI in the process of development.
1intend thereby to demonstratethat the legal approach underlying the sub-
missions of the Federal Republic of Germany is whoIly without precedent or
foundation in the existing rules of international 1aw.
1will then proceed to analyse the way the Federal Republic elaborates this
unprecedented and unfounded legal approach, in order to show the Court the
arbitrariness of each successivestep by which the Fedetal Repubtic attempts to
arrive at its ultimate goal: the enlargement of its continental shelf area.
FinalIy, Mr. President, 1 intend to indicate the correct legal approach under-
lying the actual rules and principles of international law relating to maritime
areas adjacent to the coast, and its consequences for the delimitation of those
areas, in particular for the delimitation of the continental shelf.
The issue before the Court is the delimitation in space of the sovereign
rights of a State-for the purpose of exploring and exploiting natural re-
sources-over the seabed and subsoil of the submarine areas adjacent to the
coast, but outside the area of the territorial sea, in particular the delimitation
in space vis-A-visother States which also exercise sovereignrights of explora-
tion and exploitation over the seabed and subsoil of submarine areas adjacent
to their coasts. ARGUMENT OF F'RO1;ESSORRIPHAGEN 121
The existence of such sovcreign rights and their content are not iii dispute
between the Parties. Nor is the Court requested to pronounce itself on the
question which part of the seabed and :;ubsoilof the high seas should legally
be considered ascontinental shelf.
Indeed, the disputes betwixn the I4etlierlands and the Federal Republic of
Germany, and between Denmark and the Federal Republiç of Germa~iy,relate
only toan area of the North Sea, the superjacent waters of which are of such a
depth that the seabed and subsoil art: undoubtedly to be regarded as continen-
tal shelf under the definition given to i.histerm in Article 1 of the Geneva
Convention.
The only point in dispute, then, is i:heextent in space of the area over which
each of the three Partiesin i:hepresent disputes exercises the sovereign rights
referred to before.
The areas involved are maritime areas, the superjacent waters are high seas.
Now, Mr. President, looking at ttie question of delimitation purely in the
abstract, not taking into accciunteither the Special Agreements through which
the disputes are brought before the Court, or the rules and principles of inter-
national law elaborated in the course of time, there are three possible starting
points for a regulation by internaticmal law of the issue of determining the
rights of States over a given area, be it land, fresh water, sea water, air, outer
space,or seabed and subsoil.
One startingpoint is to regard the areainvolved as a res nullius,any part of
which may be appropriated by any State as an area over which it exercises
exclusive sovereign rights.
The second possible starting point of a regulation by internationa1aw of the
question of determining the rights of States over an area is to consider the
area as a res cornmunisover which, in principle, al1States may exercise non-ex-
clusive rights,
The third possible starting point of a regulation by international Iaw is to
recognize the exclusive sovereign rights of a State over a part of the area
somehow connected with tha.t State rather than with another State.
Mr. President and Members of the Court, 1 do not think that there is any
need to dwell upon the legal consequences of the first possible starting point,
the res nulliusapproach. Noiie of the:Parties in the present disputes has ever
clairned that the seabed and subsoil under the North Sea are res nulliusin the
sense that every State could incorporate any part of this area within its own
territory, or in any other way could establish exclusive sovereign rights over
any part of this area by way of occupation or othenvise.
The second and third poraibIe starti~ig points, however-that is, the res
comntunisapproach and the c:xtensiortof national sovereignty approach-are,
in abstract theory, relevant tcithe prejeni:disputes.
Let us fist look at the resi:ommunirapproach, the concept that a particular
area belongs in common to a11States, is domaine publique of the international
society. Obviously, this conct:pt implies the right of each State, either directly
or tbrough its subjects, to make use of the area for purposes recognized by
international law as IawfuIpurposes.
A typical example of this approach is, of course, the international régimeof
the high seas, providing for .theright of every State to use the high seas for
navigation, fishing, laying of submarine cables and pipe-lines, and for other
lawful activities.
Naturally, this approach ncitonly e:tcludesthe reservation of any part of the
area involved for future activities of a particular State, but also in principle
precludes the actual use of th':area by one State in sucha way that the lawful122 NORTH SEA CONTINENTAL SHELF
use by another State of the same area is, in fact, harnpered or made impos-
sible.
Accordingly, for instance, Article 2 of the Geneva Convention on the High
Seas provides that the freedoms of navigation, fishing, etc.-
"... shaI1be exercised by ail States with reasonable regard to the interests
of other States in their exercise of the freedom of the highseas".
Now it goes without saying that this concept of res communismay, under
particular circurnstances, raise delicate problems of priority of one type of
activity in respect of another, and even of priority of the use by one State in
respect of the use by another State. With regard to the last-mentioned problem,
the fact of beingprior intempore cannot alwaysjustify the legal consequence of
beingpotior in iure, though in effect a distribution on the bais of "first come,
first served" may well be the factual outcome of the equal rights of everybody
to the use of a common area.
Problems of equality of opportunity also arise in the application of the res
communis approach. To take once more an example from the international
régimeof the high seas:the exerciseof the right of navigation on the high seas
by land-locked States obviously requires some privilegesto begranted to those
States as regards access over land territory of another State to the sea,and
indeed such privilegesare envisaged in Article 3 of the Geneva Convention on
the High Seas. That Article illustrates the penetration of the international
régimeof the high seas into the land.
The difficultiesof the elaboration of the rescornmunis approach are partic-
ularly apparent in connection with such activities in the common area as by
their very nature diminish, at least to sorneextent, the potentialities of the area
as a whole and thereby necessarily affect the use of the area by other States.
Thus, in the cautious words of the preamble of the Geneva Convention on
Fishing and Conservation of the Living Resources of the High Seas:
"... the development of modern techniques for the exploitation of the
living resources of thesea. ..has exposed some of these resources to the
danger of being over-exploited".
Now the solution adopted in that Convention is, in principle, one of equaI,
that is non-discriminatory, limitation of the equal freedom of every State to
engage in fishing on the high seas.But the concept of'priority in tempore and
also the concept of the priority of special interests of particular States is not
wholly absent from the provisions of the Convention, even if it applies pri-
marily to the judgrnent of suchState or States as regards the measure of non-
discriminatory limitation required by the situation.
Indeed, the Convention preserves the principle of equaI access of al1States
to fishing activitieson the higseas and does not distribute the living resources
of the high seas among the States of the world by granting exclusive fishing
rights over a particular area of the high seas. The factual distribution of those
resources on the basis of what in other fields is called "the law of capture"
remains. The resources are, in fact, allocated to the one who is first to exploit
them.
The fact that, provided there is no over-exploitation, the living resources
reproduce themselves and to that extent are inexhaustible, together with the
fact that they arnot necessarilylinked to a particular area, though the location
of fishinggrounds is fairly constant, take away much of the exclusivecharacter
of distribution on the bais of the law of capture and distinguishes this dis-
tribution from the distribution by allocation of specificareas of the high seas
to specificStates for their exclusiveuse. - ARGUMEN~ OF PROFESSORRIPHAGEN 123
However, in dealing with non-living resources, exhaustible and of a fixed,
though not necessarily known, location, it becomes in fact more dificult to
distinguish between the mo.re or leris tacit distribution of resources on the
basis of "first corne, first served" and.the distribution of areas for exclusiveex-
ploitation. That the resources areexliaustible virtually makes the exploitation
by one exclusive as regards another; that the resources have a fixed location
virtually requires a definition of the right of exploitation in terms of geo-
graphical space. Indeed, the: rescornmrtnis approach becornes an untenable
concept, a cloak for a rush ta grab the largest and best portions of the cornrnon
area for what is, in fact, excliisivenational use and national benefit. Inshort, it
becornesin effect the eq~ival~ctf the res nulliaupproach unless the ultimate
consequence of the idea of domainepublic internationalis drawn and an inter-
national authority to govern :andexploit ihe whole common areaforthe benefit
of al1mankind is established.
Obviously, and always speaking in ierms of abstract theory, one could
imagine another solution still based more or less on the res cornmuni isea,
but avoiding, as it were, iresnullicu on~sequences,avoidingthe unwntrolled
rush towards what infact, if riot in law, is national occupation of a part of the
common area. This theoretical solution would be to divide the cornmon area
between the States of the world in su#-ha way that each State would have ex-
clusive rights overa part of tlw cornmonarea. Indeed, in municipal lawsystems,
where common property for some rason or another cannot be kept in that
status, a partition isprovideclfor by legislation, contract or otherwise. But it is
obvious that such a system of partitioncm only bea substitute forthe original
status of cornmon use if and in so fasas the benefitsof the non-excliisive use
of the wholeof thecommon property fer each of the participants are susceptible
of beingmoreorlessadequately transformed into theexcIusiveuseof part of that
property. In private lawsituai.ionsthis isveryoften the case since these benefits
usuallycanbeexpressedinterrnsof acertain surnofrnoney. Buteveninmunicipal
legal systems,the situation might be qiiite different where public interestsare in-
volved. Obviously the exclusive use of the part of the public road beforone's
house is no substitute for the non-exclusiveuse ofthe whole road, if one hato
use the whole length of theroad in orclerto get from one'shouse to one'swork.
But quiteapart from this aspect ofthe matter, there are evenmoreformidable
difficultiesattached to a division of a hitherto comrnon area.
The Courr adjorirnedfrom 11.20 am. to 11.45 o.m.
Before we adjourned 1 indicated a difficulty arising when one wants to
partition an area of cornmon use into parts for exclusive use for particular
States. The difficultyisthentIiathe e:tclusiveuse of part an area isnot at al1
anadequate substitute for thi: nonexclusive use of the whole area.
But quite part from this aspect ofthe rnatter, there areevenmore formidable
difficultiesattached to a division of a hitherto cornmon area. Even where the
exclusive use of part of the cornmon area ian adequate substitute forthe non-
exclusive use of the whole area,this does not giveasolution to the questionof
how to divide such comrnon area between the original beneficiariesof a non-
exclusiveright of use. Surely one should "give everyone his due", but this lofty
principle covers such widely divergent notions as division in equd parts,
division in parts proportionai:e to everyone'scontribution in the development
of the cornmon area, and division in parts proportionate to everyone'sactual
needs.124 NORTH SEA CONTINENTAL SHELF
In short, an international régimeapplying the concept of "giving every State
its due" to the division of a hitherto common area presupposes an ethical or
ideological choicewith respect to the distribution of wealth among nations.
With your permission, Mr. President, 1 wili now turn to the third possible
starting point of an international regdation of the delimitation in space of
sovereign rights of States. This third approach starts from the fact of the
coexistence of mutually independent centres of power, each situated on a
specificland area. The ruIes of international law, in this approach, recognize
this fact and also accept in principle that each Power determines for itself the
limits in space of its jurisdiction. The rules of international law do, however,
limit the discretion of each State in this respect, both in order to avoid conflicts
between States-in particular conflicts between neighbouring States-and in
order to retain certain areas in space for the common use of al1States.
Accordingly, these rules focus on the determination of the exact boundary
lines, where the extension in space of the sovereign rights of one State meets
either the common area or the extension in space of the sovereign rights of
another State.
In consonance with their starting point, these rules of international law
primarily refer to bilateral agreements between neighbouring States for the
determination of the boundary line between their respective territories. Such
agreements are in any case necessary, since the translation of rules and prin-
ciples of law relating to boundary lines into the technical description of those
lines as they are drawn, so to speak, in the field, requires the application of
other fields of knowledge and is usually carried out by experts in those other
fields coming together in mixed commissions.
This, incidentally, is why the fixing of a boundary line is never automatic.
Indeed, contrary to what the distinguished Agent of the Federal Republic
beIievesto be the point of view of Denmark and the Netherlands-according
to page 10,supra,oftheverbatimrecordof thefirst day-bothcountries, Denmark
and the Netherlands, in their respective Specjal Agreements, have each agreed
with the FederalRepublic that they shall delimitthe continental shelas between
their two countries by agreement, in pursuance ofthe decision requested from
the Court: that is in Article 1, paragraph 2, of the Special Agreements cited in
the Memorials, 1,page 14.
Furtherrnore, such bilateral boundary agreements havea particular function,
inasmuch as they determine once and for al1the course of the boundary line.
Accordingly, under Article 6, paragraph 3, of the Geneva Convention on the
Continental SheIf, the boundary line-
"should be defined with reference to charts and geographical features as
they exist at a particular date, and reference should be made to fixed
permanent identifiable points on the land",
Indeed, more generally, agreements fixinga boundary havea more permanent
character than other treaties, as appears, inter alia, from the rule of inter-
national law that the clausulrebus sicstantibus cannot be invoked in respect of
such agreements. TheCourt willknow that the reIevant text of the International
Law Commission'sdraft on the Law of Treaties is in Article 59, paragraph 2,
under (a), and that that text found general acceptance in the first round of the
United Nations Conference on the Law of Treaties.
Now those bilateral boundary agreements, in their turn, usually reflect the
factual situation with regard to the exercise of jurisdiction by the States con-
cerned as this situatiohas deveIopedin the course of history, unless, of course,
they provide for a transfer of territory frorn one State to another. ARGUMENT OF PROFESSOR R~PHAGEN 125
In this approach, the ruler;of international law can limit themselves,in the
firstplace, to an indication of the principles to be followedfor the determination
of the exact boundary line in areas where the agreement between the neigh-
bouring States refers to natiiral featilres sucas mountain ranges, Iakes and
rivers as forrning the bounda.rybetwt:enthose States.
Furthermore, in the second place, iinthis approach,the rules of international
Iawhaveto determinedirectlythe 1imii:s inspaceoftheextension of the sovereign
rights of States into the sea, both vis-à-vis the common area and vis-à-vis the
extensionin space ofthe sovereignrightsof neighbouring States. Sincethis area,
the sea, is different from the natural environment of man,the land-there are
in the sea itself no natural frcintiers,nor iiettlementsof people-since this isthe
case, geometrical methods of fixingkioundary lines play an important role in
determining the link of contiguity bei:weenthe land and the adjacent sea area.
Indeed, in this approach, the extension of sovereignty overland to sovereign
rights over the sea area adjacent 10 i:heland is necessarily founded upon the
fact that land-based power, ,andland-based social activity do not stop at the
coastline but extend into the:sea. Silice there is no natural limitation to this
extension, the rules of international Iaw?as the popular saying goes, have to
draw a line somewhere, and generally do so on the basis of the distance from
the coastline. Thus, both as regards the boundary Iine vis-à-visneighbouring
States, and as regards the boundary Ii~ievis-à-visthe common area, the distance
from the coast is, in this approach, the typically relevant factor.
Mr. President and Members of the iîourt, up till now we have considered the
issue of determination, by the rules of international law, of the extension in
space of the sovereignrights of States purely from the point of viewof abstract
theory, of the possible approiiches, of the "options" open to the rules of inter-
national law.
Turning now to the actual rules and principles of international law, as
developed in the course of time, we note that the res cornmunis,or domaine
public international, approach, on the one hand, and the extension of national
sovereignty approach, are both applied in those existing rules of international
law, but each for clearly diffcrent spaces.
This isparticularly apparent in the rulesandprincipIes of international law
relating to the sea. Indeed, iri this field of the law, we sec a gradua1 decline of
the res cornmunisconcept in favour of the extension of the ~lationalsovereignty
concept. SureIythe freedom of the high seasisstill a firmlyestablished principle
of international law. But the area of hi& :;easisconsiderablysmallernowthan it
was when the principle of frzedom of the high seas was established, and the
recognizedrights of the coastiil State ivithin sea areas adjacent to its coast have
considerably increased.
To give a fewexamples:
The general recognition of i:hestraigbt liaselinessystem has enlarged thearea
of internal waters.
Wherebeyond those waters the rights ofthe coastal State werein the doctrines
of the past often considered as a bundle of particular rights, Articles 1and 2 of
the Geneva Convention on the Territorial Sea now squarely state that the
sovereignty of a State extend!;beyond its land territory and its internal waters
to a belt of sea adjacent to its coast, to the air spaceover this belt of sea, and to
its bed and subsoil.
As to the maximum breadth of the territorial sea there may be no cornmunis
opinio, but there is certainly a tende:ncj3to go beyond what was the fairly
general practice of States sonie 50 yea.rsago.
Certain rights of control of the cciastal State in a zone of the high seas126 NORTH SEA CONTINENTAL SHELF
contiguous to its territorial sea are now generally recognized in Article 24 of
the Geneva Convention on the Territorial Sea.
Again, in the matter of conservation of the living resources of the sea,
special rights are given to the wastal State, again relating to "any area of the
high seas adjacent to its territorial sea", that is, under Articles 6 and 7 of the
Geneva Convention on this subject.
Finally, the coastal State hasexclusive sovereignrights over the continental
shelf adjacent to its coart.
Ail this bears witness to the gradua1extension of the sovereign rights of the
coastal State into the sea.
On the other hand, and contrariwise, with regard to the deep sea-and I am
not using here the technical legal expression of high seas-with regard to the
oceans, there seemsto be a tendency ?O affirm and even further develop the
res cornmmisconcept.
Recentlythe General Assemblyof the United Nations has turned its attention
to the status of the seabed and subsoil of the sea beyond the continental shelf
or-in the terms of the Agenda item itself-beyond the limits of present na-
tional jurisdiction. During its 22nd session,on 18December 1967,the General
Assembly established an ad hoc Committee to study the various aspects of the
peaceful uses of the ocean floor, and a first report of this Committee is now
under discussion at the present session of the General Assembly.
Many States Members of the United Nations have presented their views on
the matter and, though it is perhaps premature to draw any firm conclusions
from the opinions expressed up till now, there nevertheless seems to be a
marked tendency to retain for the ocean floor, in contradistinction to the
continental shelf, the res commrrnisstatus, also in respect of the exploration and
exploitation of its natural resources. Various proposals have been put forward
by governments providing for or irnplyingthe setting up, under United Nations
auspices, of some international body or machinery to control the exploitation
of these resources and to ensure that the benefitsderivedtherefrom, or at Ieast a
suitable portion thereof, shailservethe purposes of the international community
as a whole, including the promotion of economic and social progress of de-
veloping countries.
In this connection, Mr. President and Members of the Court, 1may perhaps
be aIlowedto refer, brieflyand only by way of example, to the viewsexpressed
by my own Government on the international régimeof the ocean floor. These
views are laid down in a United Nations Document numbered A/ACl3511
containing the comments of the various governments on this matter, and the
comments of my Government are at pages 22 to 25.
The main features of the outline of an international régimefor the ocean
floor as put forward by the Netherlands Government arethe following:
First, a fixed and definiteboundary line should be determined beyond which
a coastal State does not have the exclusivesovereignrights provided for in the
Continental Shelf Convention.
Second, the area beyond the boundary line just mentioned should be under
the control of the United Nations in order to safeguard the freedom of the high
seas and to ensure that the exploration and exploitation of the ocean floor and
subsoil servethe purposes of the international cornmunity as a whole, such as
aid to developingcountries, equality of economicaccessto the natural resources
asthey become available and a rational reIation between govemment take and
private profit, if any.
Third, a fixedpart of the government take, being royalties plus taxes, to be
paid into a United Nations fund for aid to developing countries: : ARGUMENT OF PROFESSOR RIPHAGEN 127
Fourth, the United Nations to graiit concessions to individual States which
would act as a sort of administering authority in respect of the exploitation
concession they grant to a private or public enterprise.
As 1said, Mr. President, 1have referred to this proposa1 only by way of an
example of a possible further developinent of the rescomrnr~nisconcepttowards
what we consider to be its logical conclusion, the establishment of an inter-
national machinery of a world-wide character to administer the use of and
benefit from the common area by and for al1States, taking into account the
needs of each of these States.
Actually, Mr. President and Menibeis of the Court, whatever form the
international régimeof the occan floor and deepsea miningeventuallywilltake,
there is little doubt that the r'oscorntnunisapproach will be maintained for this
area of the seas.
The learned Agent of the Federal Ekepublichas, in his address to the Court,
repeatedly stressedwhat he ~illed the "real danger" that the oceans would be,
as it were, annexed by the coastal States-the relevant passage ofhis address is
on page 33, supra, of the record for .thesecond day. He hassolernnlywarned
the Court-on pages 33-35, npra, o:Fthe record of the second day-against
recognition of the Iegalapprctach of exteilsion of national sovereignty in space
on the basisof propinquity and equidistance, suggestingthat, ifthe Court would
accept this approach in the present mes, relating to the continental shelf under
the North Sea, this would irievitably lead to, or at least greatly promote, a
national appropriation of the ocean lloor as dramatically depicted in no less
than three substantially identical map:iof the North Atlantic Ocean, which the
Federal Republic has though- fit to draw the Court's attention to.
Now this train of thought could onl:yconfuse the issuenow before the Court.
it is,1 think, clear that there is and will remain a fundamental difference be-
tween the legal régime ofthe ocean fioor a.ndthe legalrégime ofthe continental
shelf.
Actually, the development of the present-day rules and principles of inter-
national law relating to the rights of coastal States over the continental shelf
and the development of the legal coilvictions of the world community with
respect to the ocean floor as-to usea c:urrentexpression-the common heritage
of mankind, this double development forcefullyillustrates the antinomy of the
two possible approaches: on the one hand the extension of the national sover-
eignty from the land into the sea and, oil the other hand, the concept of the
sea as domainepublic international. Oliviously the application, side by side, of
these two totally different approaches for two different areas of space requires
a determination of the bouridary line between continental shelf and ocean
floor.
On the precise delimitation of those two areas there does not seem to be, as
yet, a generally accepted view. Incidt:ntally, the same is true for the precise
delimitation as between outer..spacearid air-space. But the main point, in both
cases, is the general recognition that tlleare two separate areaseachhavinga
fundamentally different legalrégime.
How far, starting from the deep occan. the res cornmunis régimeextends in
space, and where exactly it meets the ares wherein, startingfrom the land, the
régime ofnational sovereignrights of coastal States prevails, may be uncertain.
But it is not uncertain or open to doubt t.hat the two areas together cover the
whole of al1the seas, and that there is110third régime applicableto any part of
those seas.
Earlier in my speech, in describing ~he"options" open to the rules of inter-
national law, purely in the abstract and without ieference to the actuaI de-128 NORTH SEA CONTINENTAL SHELF
velopment of international rules and practices, we envisaged the theoretical
possibility of a system of distribution of a common area between States thus,
that each State which had a non-exclusive right of use would receive an ex-
clusive right of use of a part of the area. We recognized the insuperable diffi-
culties connectedwith such a systern,and in viewof those difficultiesit ishardly
surprising that the actually existingrules of international law do not provide us
with a single precedent for such a systern for any type of area.
Nor is there any serious set of ruIes de lege ferenda which embodies this
approach.
It should perhaps be recalled here that there is a fundamental difference
between such a system, dividing up a cornmon area into parts, and a set of
international rules, or an international machinery, determining, in case of
conflictinginterests, the relative priority of one type of use as against another
or the relative priority of the use by one State as against the use by another
State.
The latter systems are rather an affirmation and further elaboration of the
res com~?zun cincept, and do not lead to a sharing out of spaces for exclusive
use by individual States. This concept of relative priority and accommodation
of the vaiious uses by various States of the area is illustrated by the so-calfed
"Helsinki ruIes on the uses of the waters of international rivers". Zt is also
illustrated by the proposals concerning an international agency for the control
of the exploitation of the resources of the ocean floor.
Under the Helsinki rules, the territorial delimitation of the States, within
whose territories the river basin is located, remains exactly the same, as does
the status of those territories asnational territory subject to exclusive sover-
eignty. And, again, under the proposals for an international body to supervise
the exploitation of the resources of the ocean floor-such as, for instance, the
Netherlands proposals referred to before-the ocean floor and subsoiI would
remain a comrnon area, not subject to national sovereignty or exclusivesover-
eign rights.
There is, therefore, no precedent whatsoever in the existing rules and prin-
ciples of international law relating to the delimitation in space of the sovereign
rights of individual States in any area, for the approach underlying the sub-
missions of the Federal Republic. The alleged principle "that each coastal
State is entitled to a just and equitable share of the continental shelf" is in-
compatible both with the res cornmunis concept underlying the rules of inter-
national law relating to the ocean floor and with the concept of extension of
national sovereignty underlying the rules of international law relating to the
continental shelf.
The incompatibility of that alleged principle with the rescornmuni csncept
is,it seems,obvious. To the extent that the seabed and subsoil are rcornrnunis,
they can only havethat status in the same way as the superjacent waters and air
space are rescornmunits hat is as common to al1States, both coastal States
and land-locked States.
Accordingly, if the rules of international law, contrary to al1 precedent,
would proceed to a distribution of this common area in just and equitable
shares, they could not possibly distribute it only among coastal States, thereby
leaving out a great number of States which do have a right to use the common
area.
The fallacy of this approach, of sharing out a hitherto common area, be-
comes even more apparent when one looks at what the Federal Republic of
Germany considers to be "just and equitable shares", and the methods it
advocates for determining the location of those shares. Not only are non- ARGUMENT OF PROFESSOR R~PHACEN 129
coastal States excluded frorn the distribution of the common area, but the
coastal States benefitfrom this distribution according to criteria which have no
relation whatsoever to the location O€ their coastline.
Admittedly, there is a certain parallellism between the-unprecedented-
legal approach of sharing out a comrnon sea area and the geometrica1method
of doing so advocated by the Federal Republic. If one starts from the legal
concept of the sea as an area to be dijtributed among States, one might just as
wellstart the drawing of the (iividinglinesfrom the "middle of the sa"-if one
can find such a thing.
The trouble with that is, of course, that the location of the coastlines in the
world is such that, though the sea it!;elfis ahomogeneous unit, parts of it are
partly separated from other parts by [andmasses. It is therefore impossible to
indicate a point which by ariy stretch of the imagination could be caIled the
middle of the sea.
In order to overcome this difficulty,the Federal Republic dividesthe sea into
separate sea areas, and advocates the sharing out of each of those sea areas
between the coastal States lying arou:ndsuch sea area.
Now it would seem to me that the:absolute arbitrariness of this method is
immediately apparent. After having e.xcludedthe land-locked States from any
distribution, now even States which have a sea Coast are excIuded from the
distribution of a sea area, if they diiotlie around that sea area, even though
they undoubtedly have the right to ust:that sea areaas part of an area common
to a11States. Where this arbitrariness wolildlead to, isclearly illustrated by the
learned Agent of the Federal Republic himself in the final part of his address.
There the learned Agent ofthi:FederallRepublic expresseshimselfin the follow-
ing terms-and 1 quote frorn page 456,supra, of the verbatim record of the
third day. He ti-teresaid:
"We trust that your Judgment [that is the judgment the Court will deliver
in the present cases]will contribute to a just and equitable apportionment
of al! the uses and resources the North Sea psovides for the nations."
Now, Mr. President, it is clear that "al1the usesand resources" of the North
Sea do not only cover the ilse of tl-iecontinental shelf for exploration and
exploitation of its minera1and other non-living resources, but also cover the
livingresources,the swimmingfish,ancithe useofthe North Seafor the purposes
of navigation, of laying submarine cables and pipelines, and other lawful
activities.
And then, Mr. Preaident arid Merntiers ofthe Court, I must confessthat we,
for Ourpart, do hope and trust that your Judgrnent will not contribute to any
apportionment-be it just and equita.ble or otherwise-of the North Sea for
the exclusivenavigational or fishing uiseof the coastal States.
Presumably this is not whai;the Federal Republic wants either. But its whole
unprecedented thesis of the sharing out of an originally common area, the sea,
between coastaI States forcer:it to stich an extraordinary staternent. Indeed,
the further development of this statenient. by the learned Agent of the Federal
Republic is also highIy signifirant, because it touches upon matters of naviga-
tion and fishing on the high seas.
As is welI known by now, the Federal Republic would like to see a parti-
tioning of the North Sea as a whole, :;king to each coastal State a sector-like
part reaching the centre of thsrNorth Sea.
Now in the finalpart of his iiddressthe learned Agent of the Federal Republic
makes the following remarks, and I quote from page 66, supra, of the records
of the third day:130 NORTH SEA CONTINENTAL SHELF
"Such an apportionment would also reflect and serve the common in-
terests of the North Sea States. The North Sea cannot be considered as a
mere object of minera1 exploitation. It is foremost an open sea with
important shipping lanes connecting the coastal States with the world,"
Now, nobody could take exception to this part of the staternent, but for one
important element of it. Indeed the North Sea is an open sea and not, as the
Federal Republicin other contexts stressesso much, an enclosed sea. Indeed the
North Sea is an open sea and comprises important shipping hnes. But those
shipping lanes do nof serve only the interests of the coastal States, but the in-
terests of all States, whether adjacent to the North Sea or not. And that is
exactly whyits legal status is that of aareacommon to al1States and open to
the navigation of al1States.
The Agent of the Federal Republic then continues as follows:
"The partitioning of the continental shelf between the North Sea
Statesmust take cognizanŒof those facts. There are the difficuItproblems
of reconciling the different uses of the North Sea with each other, of con-
trolling the installations for the exploitation of the subsoil in the North
Sea and balancing the needs of economic exploitation with the equal need
for providing safe shipping lanes with sufficient depth in the shallow
North Sea.
A11these problems of common concern to al1North Sea States would
be better solved if each State which legitimately should have a say in
decisions regulating the different beneficial uses of the North Sea, would
have control over the continental shelf until the middle of the North Sea.
At this point or area al1 North Sea States meet which have an equal
interest in these matters."
Here again, Mr. President, we find this arbitrary and unprecedented Iirnita-
tion to the co9ta.l States. It is simplyno6 the law that only the North Sea
States are the States which "legitimately should have a say in decisions regu-
lating the different beneficial usesof the North Sea". On the contrary, quite
rightly, Article 3 of the Geneva Convention on the Continental Shelf declares
that the rights of the coastal States over the continental shelf do not affect the
status of the superjacent waters as high seas. And, quite rightly, the same
Convention in Article 4, Article 5,paragraph 1, paragraph 6 and paragraph 7,
directly protects the interests of navigation, of fishing, and of ttie laying and
maintenance of subrnarine cables and pipelines. Quite rightly, because those
are interests and rights belonging to each and every State.
Again, the method of distribution advocated by the Federal Republic is in
flat contradiction to the alleged legal basis of such distribution: the originally
common character of the sea.
But the arbitrariness does not even stop there! Having arbitrarily separated
what it calls the North Sea from other sea areas, and having arbitrarily limited
the group of States entitled to use the North Sea to the States lying around that
area, the Federal Republic proceeds to determine the middle of the North Sea
in order to draw from there straight lines to the points where the land bound-
aries rneet the sea, or perhaps-the Memorial and the Reply are somewhat
vague about this-the points where the boundary lines in the territorial sea
meetthe high seas,or perhaps even the point where the agreed partial boundary
lines on the continentai shelf end. That is not very clear in the Memorial and
the Reply.
In cases where surrounding States are separated by the sea, as between the
Netherlands and the United Kingdom, the United Kingdom and Norway, and ARGUNlENT OF I'ROFESSOR RIPHAGEN 131
Norway and Denmark, equidistance lines are drawn. The result of this opera-
tion is shown in figure 21 in the Mernorial, 1,page 85.
Now it is obvious, even from this rather roughly drawn figure, that there is
no middle of the North Sea..Not oiily is there not one point which is equi-
distant from al1the pointson the coastIines of the surrounding States, because
the North Sea is not even iaoughlyi:ircular, but there is not even one point
which is equidistant to the nearest points on the coastlines of each of the sur-
rounding States.
If the Court would care to look at the map, we see there a point which is
equidistant from the nearest points on the coastlines of Belgium, France and
the United Kingdorn. There is anclther equidistance point as between the
Netherlands, Belgium and the United Kingdom ;there is another equidistance
point as between the United Kingdoni, Nonvay and Denmark; there is another
equidistance point as between the United Kingdom, Denmark and the Nether-
lands; and there isanother equidistanlrepoint as between Denmark, the Federal
Republic and the Netherland,j.But thi:sefiveequidistance points are wideapart.
It is purely arbitrary to choose one of i.hesefive pointsasthe middle of the
North Sea.
Indeed, it is purely arbitriiry to choose any of these points as the starting
point for a sharing-out operation as.between aiithe States surrounding the
North Sea. In reality the Feileral Re,publicdoes not propose to share out the
North Sea asa whole between ali the surrounding States. What the Federal
Republic envisagesis to share out the south-eastern part of the North Sea and
that is between Denmark, the Federa.1Republic and the Netherlands only.
If this wa.sperhaps not sciclearly expressed in the German Memorial and
RepIy, the oral argument, presenteci by the learned Agent for the Federal
Republic and by Professor Clda, squ;irely puts the issue in this way. Thus, to
take onIy one exarnple, Professor Jaenicke stated, and 1 quote from page 12,
slrpra, of the record of the fi-st :ay
"1 think it to be a rnore correct approach if we would look at this
south-eastern sector of ttieNorth SeawhichcomprisestheDanish, German
and Netherlands' continental shelf as a single whole and then ask our-
selveshow to divide this sector kietuteenthe Parties equitably. That in my
view is the real issue in this case.."
This line of thought is further developed in that part of the address of the
Agent of the Federal Republic recorded on page 37, supra, of the record of
the second day.
Actually, in the partjust rnentioned, as in Professor Oda's address, we find
this strange tendency to groiip States together in areasasif those areascon-
stituted territories of a singlestate. But international Iawis interested in bound-
aries between individual States and not in lines such as, and 1now may quote
Professor Oda, from page 54, supra, of the record of the third day-
"...the median line betweenthe BritishIsleson one sideandthe Europeau
Continent on the other ...".
Thus, starting from the concept tha.tthe high seaas awhole is an area com-
mon to al1States, the Federal.Republic sets apart the North Sea as common to
the sumounding States, and :finallypi-oceedsto a sharing-out of a part of the
North Sea as between a few cithe surrounding States oniy. And to top offthis
pyramid of arbitrariness, the Federal Republic takesasa starting point for the
sharing-outof this area between the Netherlands, Denmark and the FederaI
Republic, a point which is equidistant frsrn the Netherlands, Denmark andthe
United Kingdorn.132 NORTH SEA CONTINENTALSHELF
One really wonders how al1 this could possibly result in sornething "fair
and equitable" under any standard.
But now, having tried to let us believe that the south-eastern part of the
North Sea should be shared out in fair and equitable parts between the three
countries, the Federal Republic tries to offer ua standard of what is fair and
equitable. This standard, then, would be that the total surface of each share
should beproportionate to the length of the so-calied coastal frontage of each
State.
Now, as there is no precedent whatever in the existing rules and principles
of international law for a sharing-out of a comrnon area, there is also no
precedent in those rules for a distribution in proportion to the length of the
so-called coastal frontage. Indeed, the whole concept of a coastal frontage is
unknown to the rules and principles of international law. The alleged general
principle of law, according to which a cornrnon area should be distributed in
fair and equitable shares, surely does not gain in credibility by combining it
with an aileged principle that the shares should be proportional to the lengof
imaginary lines!
Indeed, what is this coastal frontage supposed to be?
The Federal Republic has always ken, and apparently still is, sornewhat
reluctantto givea clear definition of, or even sirnplyto exemplify,this nebulous
concept. Only one thing isclear and has always ben clear about this so-called
wastal frontage of a State,and that is, that it hasabsolutely nothing to do with
the actual coastline of a State.
The so-called coastal front of a Stateis an imaginary line, the direction and
the Iength of which, in the thesis of the Federal Republic, directly determines
both the total surface and the exact location of the continental shelf area
appertaining to that State in law.
Wel1, Mr. President and Members of the Court, if that were the case one
should at least expect that the Federal Republic would explain to the Court
how, under the rules and principles of international law, this all-important
iine shouId be established.
The Memorial and the Reply of the Federal Republic, however, leave us
compietely in the dark, or perhaps 1should say in the fog, on this matter.
Even the name of this imaginary line is shifting, we have coastal frontage,
contact of the Coastwith the sea, coastaI front, coastal façade, to take only a
few of its aliases.
In our Cornmon Rejoinder, that is in figure A in the Rejoinder, 1, page 470,
we have tried to visualize what the Federal RepubIic rneans by coastal front of
a State.
On the basis of the scanty information given by the Federal Republic in its
Memorial and RepIy, in particular on the basis in the Memorial, 1,page 76,
which mentions the linear distance between Borkum and Sylt as the coastal
front of the Federal Republic, and the figures 1, 2 and 3 in the Reply, 1,pages
427 and 428, we thought that what was perhaps rneant by wastal front was the
straight line joining the extrerne points of the coastline of a particular State.
And when, inthe first part of his address, recorded on page 12,supra, of the
record of the first day, the Agent of the Federal Republic specificaIlyreferred
to this figure A in order to illustrate what he called "the disproportion be-
tween the German part on the one hand and the Danish and Netherlands
parts on the other", we felt that we had at least understood what the Federal
Republic is talking about when using the terni coastal front, But it soon ap-
peared that Our imagination was still insufficient to produce this irnaginary
line. ARGUMENT OF PROFESSORRIPHAGEN 133
It seems tht, according to the FecleralRepublic, Denmark andthe Nether-
lands donot "face" the North Sea with the whole length and direction of their
actual coastline asthat coastline is washed and often menaced by the troubled
waters of the North Sea. It also seem'ithat, according to the Federal Republic,
Denmark and the Netherlantls do no1even "face" the North Sea with an imag-
inary line, a straight line, joining the extreme points of their respective coast-
lines on the North Sea, as in figure PLof our Common Rejoinder.
No, as the Federal Republic wants it, Denmark and the Netherlands "face"
the North Sea with a line the length and direction of which are different still.
According to the latest version of i.heGerman coastal front concept, asthis
version is given on page 41, supra, of the record of the second day, and on
page 64, slipru, of the record of .the third day-and 1 would invite the
Court to look at the map-tlie coast;rlfront of the Federal Republic wouId be
a straight line between the end point of the land frontier between Denmark and
the Federal Republic and the end point of the land frontier between the
Netherlands and the Wderal Republic.
Now those two end-poini:s are at leiist the extrerne points of the actual
North Sea coastline of the Federal RsrpubIic,but the so-called coastal front of
Denmark is, in this latest version of the German theory, construed in a very
different way. The so-called coastal fro~itof Denrnark, with which it is sup-
posed to "face" the North Sea, is a straight line, starting at the end point of the
land frontier between the Federal Rt:public and Denmark, and running from
there "roughlyW-that seemsto be a favourite word in the German pleadings-
to the north.
It is obvious that this straight line crosses the actual Danish coastline at a
point which presumably is lhen the other end-point of the coastai front of
Denmark. That the actual North Sea coastline of Denmark does not stop at
that end point of the "coastiil front", but continues in an eastern and north-
eastern direction for a considerable (distance,is conveniently forgotten.
And then the "coastal front" of the NetherIands: this is supposed to be a
straight Iinerunningfrom the end point of the land frontier betweenthe Nether-
lands and the Federal RepubYic-and now Iquote from page 41, supra, of the
record for the second day-"to the point where the equidistance line between
Great Britain and the Netherlands makes a bend to the west". What presum-
ably is meant is the point nunibered a!;point 9, or perhaps point 10,in Article 1
of the delimitation agreement betwet:n the United Kingdom and the Nether-
lands. This delimitation agreement is reproduced as Annex 9 in the Memorial,
I, page 117. Thereis also a nlap in the hlernorial, page 120,where the various
points where the equidistance line :makes bends are indicated. Presumably
point 9 or point 10 is the point menti!onedby the Federal RepubIic.
Now, the straight line, thus drawn, crossestheactual coastline of the Nether-
lands at some point, and thht point presumably would then be the other end
point of the coastal front of the Netherlands. Again, the fact that the actud
North Sea coastline of the PlTetherlaridsdoes not stop at that point but con-
tinues for a considerable disi.ancein a south-western direction is conveniently
forgotten.
We have now tried to recanstruct what, in the latest version of the Gennan
coastal front theory, is suppoied to be the coastal front of Denrnark, the coastal
front of the Federal Republii: and thr: coastal front of the Netherlands.
1must recall here, Mr. President, that, according to the German theory, the
direction of these coastai frontages determines the location of the continental
shelf areasappertaining to each of the three countries, and the length of those
coastal frontages detemines the size or total surface of the continental shelf 134 NORTH SEA CO~NENTAL SHELF
areas appertaining to each of the three countries. It would, therefore, in the
Gerrnan theory, be al1important to know exactly both the precise direction and
the precise end points of that irnaginary straight line.
But the one and the other are onlyvaguely indicated by the Federal Republic,
and the learned Agent of the Federal Republic is apparently fully aware of the
haphazard and arbitrary way these coastal fronts are construed.
Thus, and I now quote frorn page 64, supra, of the record of the third day,
he rernarks "it would be difficult to know what you would like to cal1the
coastal front of the Netherlands facing the North Sea"; and somewhat earlier
he even goes so far as to Say about the coastal front, and 1 now quote from
page 41, supra, of the record of the second day :
"But you may take what you like. 1 don't mind whether you take some
other line as the coastalfront, that wouldbe more favourable to us. I have
taken as the coastal front that which is the least favourable to us." .
Mr. President and Mernbers of the Court, I submit that everythingthat the
Federal Republic has declared about the coastal front in the Mernorial, in the
Reply and inits oral pleadings, only serves to illustrate the absolute arbitra-
riness of this whole concept of the so-called coastal front.
The purposes of introducingthis so-called comtal front, this imaginary and
arbitrary straight line, are only too clear.
The Federal Republic, even though it builds its whole thesis on the fallacious
foundation of a so-called just and equitable sharing out of a comrnon ma,
cannot escape from the fact that the sovereign rights over a continental shelf
area belong to a State only in its quality as a coastal State. Now the actual
North Sea coastlines of Denmark, the Federal Republic and the Netherlands
are not as the Federal Republic would like them to be. Ergo, the Federal
Republic has to look for asubstitutefor the actual coastlines, a substitute line
that could fulfil a double purpose:
First purpose: to serve as a baseline for a triangular or sector-like continua-
tion of the land territory in and under the sea towardsa particular point which
the Federal Republic calls the rniddle of the North Sea, and up to which point
the Federal Republic wants to enlarge its continental shelf area. This is, of
course, a question of finding a convenient direction for the substitute line.
Second purpose: to serve as a yardstick for the total surface of the continental
shelf area, which the Federal Republic wants to have; and this is, of course,
a question of finding a convenient length for the substitute line.
To serve this double purpose the Federal Republic has invented a set of
straight lineswhich, perhaps to cover up their total independence from the
actual North Sea coastlines, it has called the coastal fronts of the three States.
These coastal fronts, these arbitrary substitutes for the actual coastline, if
they have to serve the double purpose mentioned before, are not so easyto find,
and that perhaps explains the reluctance of the Federal Republic to get into a
definitive and detailed description of those Iines.
In the Federal RepubIic's Mernorial, paragraph 78, 1, page 77, the coastal
frontage of the Federal Republic is indicated as the linear distance between
Borkum and Sylt and it is suggested that "the breadth of the Danish and
Netherlands coasts were to be ascertained in like fashion". Now this could
only meanthat the coastai fronts of the three States would run as indicated on
figure A in the Cornmon Rejoinder, 1, page 470.
But this does not suit the Federal Republic at dl. It is easy to see that lines
drawn from the middle of each of the three coastal fronts, perpendicular to
each coastal front, could not meet in what the Federal Republic persists in ARGUMENT OF PROFESSOR R~PHACEN 135
calling the middle of the North ~ea..Thus, the first purpose of the Federal
Republic would not beserved by the direction of those lines we have drawn in
figure A in the Common Rejoinder, 1[,page 470.
Consequently, the Federal Republic has to get away even further from the
realities of geography,and so it does in the oral arguments and under the guise
of taking a coastal front which is the least favourable to the Federal Republic
and fairest to Denmark and the Netherlmds.
But the remarkable thing is that the cvastal fronts thus taken, with the best
of intentions towards Denmwk and the Netherlands, also serve best the pur-
poses of the Federal Republic.
Indeed, if the Court would care to look at the map, it is only by changing the
direction of the coastaI front:$of Denimarkand of the Netherlands as originally
indicated in the written pleadings, towards the position now indicated in the
oral argumentsthat the FederalRepubliccould,through perpendicular lines,ar-
rive at the point which it caIls the rniddle of the North Sea.
The Court ruse of 12.55p.m. NORTH SEA CONïINENTAL SHELF
SEVENTH PUBLIC HEARING (31 X 68,10. a.m.)
1
Present: [Seehearing of 23 X 68.1
Professor RIPHAGEN :Just before the Court adjourned yesterday I had the
occasion to point out the fact that in the oral argument the Federal Republic
has presented a new definition of the so-called coastaI fronts of Denmark and
of the Netherlands, quite different from the one that could reasonably be
deduced from the Federal Republic's indications given in its written pleadings.
1 also pointed out that this change of the direction of the imaginary line,
styled "coastal front", is cleady motivated by the desire to arrive, through the
drawing of perpendicular lines, ata point which the Federal Republic calls the
middle of the North Sea.But this arbitrary choice ofthis particular direction of
the so-calledcoastal fronts of Denmark and of the Netherlands is also intended
to serve the second purpose of the Federal Republic, a so-called equitable
distribution in shares proportionate to the length of the coastal frontage.
Now, it is a simple fact of geometry that if you arrange three straight lines
at such anglesthat perpendiculars, drawn from the middleof each ofthose lines,
cross at one and the same point, then that point is also the centre of a circle
going tkrougfi theend points ofthe original threestraight lines.And if you then
draw straight lines from the centre of that circleto each of the end points of the
original straight lines, then the surface of the circleis divided in three sectors.
The surface of each sector of this circle is then, and this is again a fact of
geometry, proportional to the length of each of the threecorrespondingarcs of
circle.
Now this isal1verywell,but here again, thereisnorelationship whatsoever to
the geographical realities of the actual shape of the North Sea and the actual
North Sea coastlines of the three States. A mere glance at the map shows that
the surfaces delineated by the triangles or sectors so constructed are in no way
congruent with the sea areas divided up by taking the straight lines drawn from
the centre of the circle to the end points of the so-called coastal fronts. When
one takes those straight lines as the dividing lines of those sea areas, one
sees that those sea areas are not in any way congruent with the sectors ortrian-
gles.
This, of course, isanatural consequence of the fact that by no stretch of the
imagination could one possibly consider the North Sea or even its south-
eastern partas circular. Indeed, as alreadyrernarked in the Common Rejoinder,
1, p. 472, it is, obviously, always possible to choose a point in the sea, as
represented on a map, and draw a circlehaving that point asits centre. But ifthe
map faithfullyrepresents the North Sea, no circle can be drawn that bears any
relationship to the actual coastlines of the North Sea countries. And the same is
true for the three straight lines which the Federal Republic calls the coastal
fronts of the Netherlands, the FederaI Republic and Denmark.
Al1those circles,arcs, sectors, trianglesand straight lines are purely arbitrary
constructions. Theyhave nothingto do with the geographic realities. They could
not possibly be a standard for equitable distribution.And, last but not least,
they are completely alien to any existing rule or principle of international law.
To surn up, Mr. President and Mernbers of the Court: first, the concept of
sharjng-out a cornrnon area amongst States has no basis in the existing rules of
internat ional law. ARGUMENTOF I~ROEESSOR RIPHAGEN 137
Second, the application of this concepi:to any particular part of the sea to the
benefit of only a few States is incom:patiblewith the only possibIe basis of the
concept, and purely arbitrary.
Third, the concept of fair and eqiiitable shms has no basis in the existing
rules of international law.
Fourth, the allegedstandard of sharesto be proportionate in sizeto the length
of irnaginarystraight lines joining arbitrary points on the coast of a State
cannot possibly be a rule of law.
Fifth, the geometrical rneihod of a.ppIyingthis standard by the construction
of sectors starting from the middle ofthe sea is purely arbitrary and has no
relation to the geographical realities of the North Sea.
Mr. President and Mernbersof the Court, there is, ofcourse,a reason whythe
Federal Republic hw thougbt it neci:ssaryto present such arbitrary constnic-
tions. This reason is obviou!;.
The continental shelf area over whuchthe Federal Republic exercises sover-
eign rights under the rules a.ndprinc:iplts of international law as expressed in
the Geneva Convention OTI the Continental Shelf is relatively sniall. The
Federal Republic wants more and therefore invented the theory of a common
continental shelf tobe shared out atnong States. But the seabed and subsoil
could only be a cornrnon aresbecause the high seas are a common area, and
according to the same modalities. This ineans that the bed and subsoil of the
total area of the highseas would be c.ommonto al1States. Nowthe attempt of
squaring this theory with tlie exclu:;iveright of each coastal State over the
continental shelf adjacent to its coast must, indeed, involve a considerable
amount of mental acrobatics..
Actually, it is impossible to expiain the exclusive sovereign rights of a
State over the continental shelfadjacent to its coast as the result of a sharing-out
operation of the bed and sul>soilof the high seas by the rules of international
law. Indeed, the only possible explanation of these rights is the recognition by
international law of the extension of the tiational sovereignty over the land into
sovereign rights over the continuatioil of the land under the sea contiguous to
the coast. The common area is not distributed but reduced by this recognition
of exclusive sovereignrights.
This explanation is in conformity with the whole body of rules of the inter-
national law of the sea as tliose ru1c:sare elaborated through the practice of
States and through the codificationartd progressive development by world-wide
conferences.
This body of rules of the international law of the sea shows the interpene-
tration of two radically differentrégimes:the high sea régime ofan areafor the
common use of al1States, and the larid régime ofexclusivesovereignty of each
individual State. Indeed, the extension in space of the land régimeof sover-
eignty into the sea is compensated by important limitation of the content of
those sovereign rights to the benefit of the high sea régime ofcommon use.
Thus, the exclusive sovereign rights over the continental shelf are limited in
their contents to the exploration arid exploitation of its natural resources.
Such exploration and exploitation, in the words of Article 5 of the Geneva
Convention on the Continental Shelf:
"must not result in any unjustifiable interference with navigation, fishing
or the conservation of the living resources of the sea".
Thus, also, the sovereignty over the territorial sea is lirnited by the right of
innocent passage. Even the land itself'isaffected since, as stated in Article 3 of
the Geneva Convention on the High .;es, a State situated betweenthe sea and138 NORTH SEA CONTINENTAL SHELF
a State having no sea coast shall, by common agreement with the latter,
accord to the State having no sea coast free transit through its territory.
The fact that the sovereign rights which a coastal State exercises over sea
areas are an extension of its sovereignty over its land territory has also im-
portant consequences for the limits of those rights in space, both vis-à-vis the
area under the régimeof common use, and vis-à-visthe areas under the régime
of exclusiverights of neighbouring States, whether opposite States or adjacent
States. It is the concept of contiguity which governs these delimitations.
As regards the delimitation in space vis-à-vis the area of comnlon use, the
concept of contiguity is expressed in terms of a maximum distance from the
outer Jimitof the interna1waters for the territorial sea andthe contiguous zone.
And for the sovereign rights of exploration and exploitation of the seabed and
subsoil, the concept of contiguity isexpressedin the definition of the continental
shelf.
As regards the delimitation in space vis-à-vis the opposite and adjacent
States, the concept of contiguity is expressedfor a11three zones in the principle
that the boundary is to leave to each State every point of the area which lies
nearer to its coast than to the coast of another State.
In al1those delimitations the geographical realities ofthe actua1coastline of a
State are the basis for the determination of the extent in space of its sovereign
rights. Indeed, the principle ofcontiguity would not admit another solution.
That this is true, even where the drawing of straight baselines is permitted,
your Court has made cwstal clear in the Anglo-Norwegian Fisheriescase. That
the outer limitof the temtorial sea and of the contiguous zone is a lineequidis-
tant frorn the coastline-low water line or straight baselines the case may be-
isalso not open to doubt. The outer limit of the continental shelf, though for
obvious reasons not determined in terms of maximum distance from the low
water line or straight baseline, is also dictated primarily by the geographic
realities.
The same is true for the delimitation of al1these areasvis-à-visopposite and
adjacent States. Here again the principle of equidistance isthe expression of the
concept of contiguity on the bais of the geographical realities of the actual
coastlines.
Now, surely this principle of contiguity, and its corollary the principle of
equidistance, cannot be applied in a purely mechanical way.
There may be specialcircumstanceswhichjustifya deviation from theequidis-
tance line on particular points. But no special circumstance could possibly
justify the jettison of the contiguity-equidistance principle and its replacement
by a system of distribution starting from a radically different, even opposite,
point of view. What then are those special cjrcumstances, and in what way and
to what extent may theyjustifyanother boundary Iinethan theequidistance line?
Now, here, as in the Anglo-Norwegian Fisheriescase, we have to look at the
geographical realities and their socio-economic corollaries, alwaysin the light of
the concept of contiguity. Mylearned colleague,the Agent for the Government
of the Kingdom of Denmark, willfurther develop this matter. Sufficeit for me,
as Agent of the Cioveniment of the Kingdorn of the Netherlands, respectfully
to submit to the Court the folIowing short remarks.
There are, in theory, two possible reasons for deviating, at specificpoints,
from the true equidistance line in determining a boundary. One possible reason
is that a particular part of the truly equidistant boundary line unjustifiably
ignores the unity of a particular seaarea by separating it in two parts under a
different régime.
The other possible reason is that a particular part of the truly equidistant ARGUMENT OF I'ROFESSOR RIPHAGEN 139
boundary line is determined by specificpoints on the coastline, which cannot
justifiably be regarded as forming a unitywith the rest of the coast, which is
under the same régime.
In both casesthere may be said to be an element of artificialityin part of the
truly equidistant boundary line.
Now whether, and to wl~atexteiit, those special circumstances justify a
correction of that part of the true equidistance line is a delicate question.
Obviously,much depends on the legalstatus ofthearea whichisto be delimited:
interna1 waters, territorial sea, contiguous zone or continental shelf. It seems,
for instance, clear that a conxinentalaihelfboundary does not affectthe use of a
sea lane for international navigation, whereasa territorial sea boundary might
do so. Furthermore, international laiv and practice demonstrate that there are
other means of solving the problems arising from the artificiality of boundary
fines-other means than the drawing of a difFerentboundary line.
In this connection, I may lnake reference, byway of example, to the United
KingdomlNetherlands Agreement concerning the exploitation of single geo-
logical structures overlappirig the boundary line. This Agreement has been
reproduced as Annex 12 of the Nethdands Counter-Mernorial.
So much for the case that the true equidistance boundary line cuts into
different parts asea area which is a unit.
As regards the other possittleseasoione cannot lightly assume that a part of
the coast of a particular State is not an integral part of the maidand for the
purpose of applying the contspts of contiguity and equidistance.
Now, al1this isnot directly relevant to the present disputes, inasmuch as the
Federal Republic has not indicated any part of the equidistance line as be-
tween its continental shelf arid the ccintinental shelf of the Netherlands which
should be corrected for eitheof the two reasons mentioned before,Nor has the
Federal Republic indicated anypart of the equidistance line as between its
continental sheff and the continental shelf of Denmark which should be so
corrected.
It is rather the combined t:ffectof the two boundary lines which makes the
Federal Republic cornplain and dernznd a re-distribution of the total area of
the continental shelf appertaining respectivelyto the Netherlands, the Federal
Republic and Denmark, as between those three countries.
But, Mr. President and Members of the Court, on the basis of what particular
Iegal bond between those thtee couni.riescould the Federal Republic possibly
consider, that those three countries are obliged to proceed to such a re-
distribution?
The general rules of international law certainly do not create such a regiona1
community of a gmup of States oornniitted to contribute their individual tights
into a common fund to be distributed according to some ad hoc Standard of
equitableness, The whole idt:a is alien to the existing rules of general inter-
national law and could only be realized on the basis of a particular explicit
treaty concluded between hl: three !;tates concerned. Obviously, there is no
such treaty and the demand c~fthe Fr:deral Republic rnust fail.
ARGUMENT 01- hlR. JACOBSEN
AGENT FOR THE GOVERNMEN11 OF THE KINGDOM OF DENMARK
Mr. JACOBSEN: Mr. President, Members of the Court, asit has been made
quite dear, the Danish and the NetherIands Governments of coursa egree, that
if the principle laid down in the GenevaConvention, Article 6, paragraph 2, is140 NORTH SEA CONTINENTAL SHELF
found to be the applicable rule, then the exception of specialcircumstancesmay
corne under consideration. We consider this exception as part of the develop-
ment of customary law, as Professor Waldock has explained, and we therefore
consider it applicable in the context of each of the three contentions on which
we base Ourclaim.
As from the outset, there could be no doubt as to the position of the two
Govemments, at Ieast in principle, it was to be expected that the Federal
Republic, wanting a boundary line deviating from the one following from the
equidistance principle pure and simple, would rely heavily upon the possible
application of this rule of exception. This has not been the case.
The special circurnstances clause has been invoked only belatedly and half-
heartedly. Before entering upon how the clause should be interpreted, and
whether it is correctly interpreted, is applicable in the cases before the Court,
it should be pointed out in which way the clause has been invoked by the
Federal Republic. The development of this part of the cases tends to raise
considerable doubt as to whether the Federal Republic itself really believesthat
the clause is applicable.
Not a hint of the clause is to be found in the four submissions contained in
the Memorial. It would therefore seem that at the time of the Memorial, the
Federal Republic did not want to try tu base any part of itsposition on that
clause. And it should be remembered that already at that time al1facts of the
cases, which are quite simple, were fully known to the Federal Republic.
Neither isa trace of the clause to be found in the different conclusionsplaced
at various points of the Memorial. Apparently, no legal consideration was, in
the opinion of the Federal Republic, so close to the special circumstances
clause that this clause deserved mentioning in the conclusions.
True, the clause was mentioned repeatedly in the text of the Memorial, but
with quite a different aim. The Federal Republic wanted to show defects and
shortcomings of the main rule, the equidistance principle. And in order to do
so it again and again wanted to bring to the attention of the Court that, in
certain cases, covered by the special circurnstances clause, the general rule of
equidistance was to be deviated from.
These arguments refer to the rule of Article6 of the Co%ventionin general,
and do not mean that the Federal Republic invokes the clause as specifically
applicable in these cases before the Court. And, Mr. President, I might add
that this way of criticizing the general ruIe of the Convention is not to the
point. When the international community has found that the proper way to
regulate these matters is to formulate a general ruLe-the equidistance prin-
ciple-and to add an exception-the special circumstances clause, the Federal
Republic can distract nothing from the value or strength of the main rule by
repeatedly maintaining that in some cases covered bythe exception, there must
be a deviation from the main rule. This has been explicitlyprovided for in the
Convention, and thjs whole discussion of the general relation between the
exception and the main ruIe is without any bearing on the cases before the
Court.
Part II, Chapter III, of the Mernorial, under the title "The Special Case of
the North Sea", is the last chapter and contains the Federal Republic's various
suggestions for another boundary line. These suggestions are based on the
concept of coastal frontages, the sector theory applied to the North Sea and,
finally, that the boundary shouldbe establishedby agreement, but there is not
one word asto the special circurnstances clause.
The only indication in the Memorial that the Federal Republic might want
to invoke the clause of special circumstances isto be found in paragraph 72 ARijUMENT i3F MR. JACOBSEN 141
under a general title "The 'Special Circumstances'in Article 6 of the Con-
tinental Shelf Convention". Here, in thü course of adiscussion on the special
circumstances clause, the Fi:derai Republic mentions, in passing, "the North
Sea coast contours" ". . . wl-nrethe (Jerman part is flanked on the one side by
the West Frisian Islands of the Nethr:rlands coast, and on the other side by the
Danish coast of Jutland"; and it then goes on to Say:
"lt is obvious that a division of the submarine areas between the three
States made on these lines caniiot be considered as an equitable result.
Geographical situations of such akind, afïecting the course of the equidis-
tance line to such an extent, represent a special configuration of the coast
which excludes the application ,ofthe equidistance method."
The words of the Converition "aiiotlier boundary line justified by special
circumstances" haveapparently been avoided verycarefully. Byconsidering the
context in which this passage is placed, the two Governments thought they
should consider this asat 1ea.sta preparation for the possible invocation of the
clause of exception.
This, on the other hand, ii;al1that caii befound in the Mernorial regarding
special circumstances as a factor of possible importance in the present cases.
It does not give the impression that the Federal Republic believes that it can
rely, to any great extent, on this clause, and the Court will,1 believe, under-
stand that, in this situation when thi: Federal Republic had only in the most
indirect way kept the road cipen for a possible later development of an argu-
ment regarding special circiimstances, the two Governments did not find it
appropriate, in the Counter-Memorisils, to enter into a complete discussion of
this clause.
Such a discussion should take place onIy when the Federal Republic had
invoked the clause and at least to soine extent explained on what grounds the
clause was invoked and to some degree indicated what, in the opinion of the
Federal Republic, would be the conseqiiences of the clause being applicable.
Therefore the two Governments limited themselves,inthe Counter-Mernorials,
Part II, Chapter V, to strongly denying that in the areas in question any circum-
stances do exist which coulcl possibly be considered as special circumstances
justifying another boundary line witfiin the meaning of the Convention.
At the same time they ouilined, in a fèwwords, their understandiiig of the
clause-an understanding which shows that the clause is not applicable in
these cases and, in consequerice,in their Subrnission 3, they asked the Court to
adjudge and declarethat "Spi:cialcircumstances whichjustify another boundary
Iine have not been established".
It couId reasonably be e:rpected that even these short comments of the
Counter-Mernorials would hiiveinduced the Federal Republic either to declare
explicitly that the special circurnstances clausewas not invoked or to come out
with a clear assertion that the clause was invoked, indicating at the same time
how the clause, according to the Federal Republic, was to be understood,
exactly what circumstances were considered the basis for the clause being
applicable, and what other boundary line was assumed to be justified.
The Reply, however, did not fulfilthese expectations. Beforegoing into what
the Reply has to say regarding special circumstances a few remarks should be
made to an argument of the IzederalRepublic which borders upon the question
of special circumstances. In more than one place in the Memorial, and it has
indeed been repeated in the Reply, the Federal Republic mentions that the
North Sea as such is a special case because the whole seabed is continental
shelf.142 NORTH SEA CONTINENTALSHELF
It is asserted that the apportionment is a joint concern of al1 the coastal
States, that it should beeffectuatedaccording to a uniform standard and that
"The most appropriate procedure to achieve a generally acceptable apportion-
ment would be a multilateral agreement between al1the North Sea Statesw-
that is in the Memorial,paragraph 75.
It has been shown in the Counter-Memorials that, for several reasons, this
collective concept is without foundation. At the veryend of the Reply, in para-
graph 98,the Federal Republic in fact compIetelyabandonsthis idea of treating
the North Sea continental shelvesas oneunit tobe divided up in one operation.
It States expressly there "that the shares which the United Kingdom and
Norway have actually receive by application ofthe equidistam ncehod are
not out of proportion" to the respective coastal fronts of these two States and
that these shares are in conformity with the sector concept. That means, in
short, in the words used by the Federal Republic, that according to the Federal
Republic they are proper and consequently, in the case of a multilateral
division, they should be lefas they are.
As the Federal Republic apparently has no objection to the impending
delimitation of the Belgian continental shelf on the principle of equidistance,
this idea of the NorthSea asa whole is without content of elernent, and 1may
add, that, finally,during the oral proceedings, the learned Agent for the Federal
Republic of Germany has, while explicitly upholding everything contained in
the written proceedings, declared that he does not want to upset the whole
scheme of boundaries in the North Sea-that is on the record of the first day,
on page 12, supra.
According to the Federal Republic itself the question would now existonly
vis-à-visDenmark and vis-b-visthe Netherlands, as the case may be, these two
States being Parties to these two cases.
Consequently there can be no question of the North Sea as such being a
special case but only of a possihIespecial circumstances case existing between,
on the one hand, Denmark and the Federal Republic and, on the other hand,
the Nethalands and the Federal Republic.
Mr. President, I now return to my main theme-the role of the special
circumstances clause during the written proceedings. In the Reply, in Sub-
mission 2 (cl,the Federal Republic expressly invokesthe specialcircumstances
clause. But there are some remarkable facts attached to that submission.
According to that submission "special circumstances within the meaning
of. .. [Article6, paragraph 2, of the Convention] wouldexciudethe application
of the equidistance method in the present case".
In the same way as in the one short mention of the clauseinthe Memorial,
the wording of the submission isnot the wording of the Convention. According
to Article 6, special circumstances may justify another boundary line, that is,
a positive rule, but the Federal Republic has reduced it to a negative rule that
the equidistancemethod should beexcluded.This is already a strong indication
that the Federal Republic itself does not believe that special circumstances
within the rneaningof the Convention do exist in the cases before the Court.
In full conformity wjth this fact that the submission is formulatedas em-
bodying a rule of exclusion of the equidistance line the Federal Republic did
not, during the written proceedings, give an indication of how the boundary
line should be determined if the Court might follow the suggestion contained
in Subrnission2 (c).
During his presentation, however, the Agent for the Federal Republic quite
clearly declared that Submission 4 covers the situation that the speccjrcum-
stances clause might be applicable. In that case the full submission regarding ARC~UMENT OF hg~. JACOBSEN 143
special circumstances would., as a combination of Submissions 2 (c) and 4,
read approximately like this : special circumstances, within the meaning of the
Convention, would exclude the applkation of the equidistance method in the
present case and consequently, the deliniitation of the continental shelf in the
North Sea betweenthe Partics isa matter which hasto be settled by agreement.
This agreement should apportion a just and equitable share to each of the
Parties in the light of al1factors relevant in this respect. That is, Mr. President,
simply a combination of Sukimissioni;2 (c) and 4.
The shortcomings in general of Submission 4 ofthe Reply have already been
commented upon. What is llere drawn to the attention of the Court is only
that Submission 4 being the FederaI Re.public7ssuggestion as to the result if
Submission 2(c) were to be smpted by the Court, this resuIt seemsto be quite
considerably removed from tIieConvi:ntion.The Geneva Convention, Article 6,
speaks in the case of special circumstances of another boundary line justified,
and there is no reference to either agreement or a just and equitable share or
al1factors relevant.
The second stnking fact in connection with Submission 2 (c)is the apparent
reluctance with which it bas been pre.sented.In paragraph 76 of the Reply the
Federal Republic rejects th(: positicln of the two Governments that if the
Federal Republic wants to base aiiy result on special circumstances, the
clause of special circumstances must be invoked. The FederaI Republic main-
tains that in ArticIe6 of the Convention there is no rule to that effect, and it
then goes on asfollows:
"In any case the arguments to the German Memorial as well as in the
present Reply leave no doubt wiih the Court that the Federal Republic of
Germany wants to assert that the special geographical situation in the
North Sea excludes a delimitation of the continental shelf between the
Parties according to the principli: of equidistance, irrespective of whether
it may be qualified as a 'speciiil circumstance' within the meaning of
Article 6 or not."
In the text here, as weIlas in the subniission, the Federal Republic changes
the wording of the Convention froni "justifying another boundary line" to
"excludes a delimitation according to the principle of equidistance".
Again, a negative ruIe is Sei:up inste:adof the positive one of the Convention.
And according to the text of the Reply, paragcaph 76, it should be expected
that, in accordance with the position: taken up aIready in the Memorial, the
Federal Republic would not present a :;ubmission regarding special circum-
stances.
Nevertheiess, and without any explaiiation elsewhere in the Reply, Sub-
mission 2 (c) has been presented. Oit these grouiids, Mr. President, it seems
justified to classify the Federal Repiiblic's invocation of the special circum-
stances clause as belated and half-hezrted. It has, however, been invoked and
it has been commented upon during the oral proceedings. It is now part of the
two cases.
Having described how the. special circumstances clause has been brought
into the case by the Federal Republic;,1 now, Mr. President, propose to turn
to the interpretation in genei-alof thi: clause, taking as rnystarting point the
position of the Federal Repubiic in ttiis respect.
The Federal Republic does not anywhere in the written proceedings indicate
that she is trying to establis11a general interpretation of the special circum-
stances clause with regard to the coastal geographical circumstances which
apparently is the only part o:Pthe quc:stionof relevance in these cases. Such a144 NORTH SEA CONTINENTALSHELF
general interpretation seems necessary when the Court is asked to decide for
the first time upon this cIause which is framed in a very concentrated way.
The Federal RepubIic does, in the Reply, when mainly discussing other
questions, mention certain specificgeographic configurations which cannot be
considered special circumstances within the meaning of the Convention. So
far there is no disagreement. But the Federal Republic does not Saythat this is
her interpretation of the clause. On the contrary, at a somewhat later stage she
assertsa much wider and in fact quite general interpretation; and it is, of course,
this wide and general understanding which must be taken as the starting point
for an attempt at an interpretation of the clause.
In the Reply, paragraph 82, the Federal Republic states in general:
"There is every indication that 'special circumstances' which mayin-
fluencethe determination of boundaries must beunderstood in the broad-
est sense: if geographical circumstances bring about that an equidistance
boundary will have the effect to cause an unequitable apportionment of
the continental shelf betweenthe States adjacent to that continental shelf,
such circumstances are 'special'enough to justify another boundary line."
From what is said here, can be extracted a kind of general understanding of
the clause. The assertion is that the clause is applicable if geographical circum-
stances would bring about that the equidistance boundary causes an unequit-
able apportionment-that does, of course, not Saymuch. It is in fact only an
assertion that the concept of the just and equitable share can be based on the
special circumstances clause. If that were so, it would mean that the equidis-
tance rule would be literaIly without effect, as every conceivable equidistance
boundary, according to the Federa! Republic, should be put to the test of the
just and equitable share and, if it did not pass that test, shouId be replaced by
another boundary line.
It does not seem likely that the International Law Commission should
suggest, and the Geneva Conference adopt, a formula indicating equidistance
from the baselines subject to a possibility of a correction in case of special
circumstances, yet really intended a subjective notion of a just and equitable
share.
This general statement is then, in paragraph 83, applied to the two cases
before the Court in the words:
"As the map shows, it is the almost rectangular bend in the German
coastline that causes both equidistance lines (if such lines were drawn as
continental shelf boundaries vis-à-vis Denmark and the Netherlaiids) to
meet before the German Coast, thereby reducing Germany's share of the
continental shelf in the North Sea to a disproportionately smali part if
compared with the shares of the other North Sea States. This geographical
situation is certainly 'special'enough to come within the meaning of the
'special circumstances' of Article6, paragraph 2, of the Continental Shelf
Convention, if that provision were applicable between the Parties."
The Federal Republic does here, as far as the present casesare concerned, give
some explanation of the expression "unequitable apportionment". It is here
mentioned that the special circumstances clause is applicable because the
Federal Republic's share is disproportionately small compared with the shares
of the other North Sea States.
As 1have already mentioned, these otherNorth Sea States are Denmark and
the Netherlands, as the shares ofthe United Kingdom, Norway and Belgium
are considered as proper by the Federal Republic. ARGUMENT OFMR. JACOBSEN 145
It is not said here how tht: propori:ionality is to be estimated, but it must be
fair to assume that this shoiild be ac.cordingto the coastai frontages.
Expressed in this way, the FedersrlRepublic interprets the special circum-
stances clause to the effectthat it enctorses theconcept of the coastal frontage;
that, of course, means this concept as it was during the written proceedings.
The Federal Republic does in fact a little later, in paragraph 88, proclaim
almost directly that any de:limitatictnwhich is not in accordance with her
concept of coastal frontage i:;based on circumstances which are specialcircum-
stances within the meaning of the Convention, and the comments on this
interpretation are exactly the sarne as those just put forward. It would mean
a cornplete negation of the main rule of equidistance because this rule has
nothing to do with proportionality ;tcctirding to coastal frontages, a concept
completely unknown during the woiL in the International Law Commission
and at the Geneva Conference.
The Agent for the Federal Republic has, during his presentation, given
almost a declaration as to his undei-standing of the clause as this should be
generally characterized. This understanding is not quite in conformity with
what was expressed in the Reply. 1 should, Mr. President, like to revert to this
understanding at a later stage.
Now leaving aside the facl that the Federal RepubIic'sinterpretations of the
clause are really repetitions of the coinceptsof the just and equitable share and
the coastal frontage, one m.+ considi:r the interpretation of the clausas given
specificallyfor these two cases. It is that the clause is applicable if the shares
resulting from the equidistance principle are disproportionate in size. Can this
interpretation be correct?
A preliminary answer can be found through a Iook at figure 1 in the Danish
Counter-Memorial, 1,page 200. It i;Ifigure inserted not to illustrate the inter-
pretation of the special cir(:umstances cIause but to show that the Federal
Republic is wrong in its assertion as to ;idifferencebetween median lines and
lateral equidistance lines.But the figure servesits purpose here. On this figure 1
in the Danish Counter-Mernorial, 1, page 200, the coasts of Leftland, Middle-
land and Rightland are of the sarne length and practically straight so that the
question of proportionality can be cansicleredon the basis of the actual coasts
without reference to any version of c:oastalfrontage. The shelf areas of these
three States are certainly not proportionate to the length of their Coast line.
Middleland area is about one-half of'tkrt of each of the adjacent States.
It couId hardly be expecti:d that the Federal Republic, applying Its inter-
pretation of the special circumstances clause based on proportioriality of
shares, would maintain that the shelf area of Middleland should be increased.
If she did, 1 do not think it would be accepted. The reason is sirnply that
there can be no legal basis for reducing the areas appertaining to 1-eftland,
Rightland and Northland, and here is, iiiour 'opinion,the crux of the whole
rnatter.
In considering the shelf delirnitations in the North Sea according to the
equidistance principle, the Federai R.epiibliclooks to its own area, which it
findslesssatisfying. The conclusion drawn isthat the area, being lesssatisfying,
should be increased. In doing so, tht: FederaI Republic overlooks the simple
fact that in every question cifboundary delimitation two States must be in-
volved, and the legal position of these two States rnust be the sarne. Con-
sequently, it is not enough, as does the lzederal Republic, to look at her own
situation; exactly the sarne a.ttention must be paid to the neighbour State.
This simple truth is expresjed in otie word in Article 6 of the Geneva Con-
vention, a word which the Federal Repuhlic has of course seen and autornatic- 146 NORTH SEA CONTINENTAL SHELF
ally quoted in the written proceedings, but to which she has apparently not
paid the least attention. It is the word "justified".
Mr. President, whena world-wideconvention, after severalyears of prepara-
tion in the International Law Commission, isadopted after a world-wide con-
ference,it is not likely that a word such as'tiustified"has been inserted without
having any meaning or being of anyimportance.
It is related to a rule of exception, resulting in a possible deviation for a
boundary linelaid down on the basis ofthe main rule-the rule of equidistance.
It sirnply means that such deviation can take place if itis legally acceptable
with regard to both States involved. In that case the deviation would bejusti-
fied, but a deviation based solely on considerations regarding oneof the States
can never be justified.
It shouId here be remembered that the IntemationaI Law Commission, in
accordance with the wishes of governments, intended to formulate rules of law
regarding the delimitation of the continental shelf, and the draft presented by
the International Law Commission was accepted at the Geneva Conference
without material change.
Consideringthis it seemslegitirnateto understand Article 6of the Convention
as a whole, as an expression ofrules of law. Such rules cannot be interpreted to
the e&t that a rule of exception should cause a general redistribution of she1f
areas simply because of an assertion that a straightfonvard application of the
main rule leads to a result which one part does not consider satisfying. A rule
of law has its effectattached to some facts of legal significanceand it does not
come into effect simply because one party is dissatisfied. Its aim is to bring
about a result which is legallyappropriate to both parties. It isdependent upon
its result being justified.
In figure 1 of the Danish Counter-Mernorial the shelf areas of Leftland,
NorthIand and Rightland have quite norrnally accrued to those States simply
because they are nearer to the quite normal coast of these States than to the
coast of any other State.
Ttcould never be justified to transfer parts of those normal shelf areas to
Middleland, no matter how dissatisfying she may find her own shelf area.
Tt therefore seems apparent that the understanding of the special circum-
stances clause put forward by the Federai Republic in paragraph 83 of the
Reply, the idea of necessary proportionality, is unfounded. On the other hand,
it could then, with reason, be asked: what then does the clause mean, in what
geographical situations is it applicable? For there isno doubt that is has been
meant to have an application and that it wasexpected that this situation would
arise fairly often.
Considering that the circumstances should be special and that they should
justify another boundary line, it isnot so difficultto seewhat the clause means.
The Danish Government has illustrated this in the Common Rejoinder, 1,
pages 533 to 535, with three small diagrams.
The situation sketched in figure E on page 533 is, asfar as delimitations of
shelfboundaries are concerned, really of a specialcharacter. There isno doubt as
to where the boundary line would run if the srnall unimportant island in the
middle did not exist.Its existencehas a considerable effectupon the delimitation
accordingto theequidistance rule. The diagram is,ofcourse,an abstractdrawing
but the situation could be transferred to the North Sea, as seen on the map on
the waIll,whereStateA isDenmark and State 3 the United Kingdom. The effect
of the island would here be quite considerable. And if the isIand were a small
Seefoolnote 1 on p. 32. ARCiUMENTOF hlR. JACOBSEN 147
sand-bank it would hardly bc found reasonable that this quite unimportant bit
of coastline, which hitherto had been without any importance, and perhaps by
a mere chance longago had been considered as Danish, should command such
considerable areas of continental shelf.
Thatpart ofthe IegalbasisfOra State havingexclusiverights to the continenta1
sheIf which is expressedin the way that the shelf area is a continuation of the
territory into the sea, would in a case like this not carry sufficient weight.
The reason is, of course, that the island does not realiy represent the territory
of State A but is only an ~rnimportant and incidental prolongation of that
territory. It would not bejustified to State B that her shelfshobeddiminished
in this way through the existence ofthis small and unimportant island. State A
has nota justified claim to th(:corresponding extension of her continentalshelf.
A correction is justified with reganl to both States and is therefore justified
within the meaning of Articlt: 6 of thi: Convention.
Ofcourse, the problem of a.1island couid be illustrated in severaIother ways.
The island could be placed nearer to State B, or it could befar out to sea but in
the vicinity of a lateral equidistance boundary as this boundary would be if the
island did not exist, as denionstrated. on the map regarding Haiti and the
Dominican Republic. In al1 these ca.sesthe situation and the legal position
would beessentially the sami:.
A configuration Iike this, IMr.President, is special in the context of delimi-
tation of the continental shelf. In this cvntext the coastlines or baselines are
decisive points of departure in delimiting the continental sheIf on the basis of
adjacency or propinquity. A:nd as a coastline, an island like this is quite far
removed from the concept 0.Ia coast, that is the coast representing the solid
territory which is the IegaIbwis for the extension of the sovereign rights of a
State into the sea.Ttdepends, of course, among possible other factors, upon the
size and importance of the island and probably also upon the extent to which
the island influencesthe equidistance Ii:ne,whether the island is to beconsidered
a special circumstance under the Convention.
A decision on these matters of fact may often be difficult.But it isessentially
geographical situations of this kind which are special circumstances justifying
another boundary line within the meaning of the Convention.
The Court is, no doubt, aware that small, insignificant islands are scattered
al1over the seas of the world, also sii.uatedin such a way that they niight in-
fluence an equidistance line determining the boundary of a continental shelf.
It is, therefore, quite natural that the International Law Commission Statesin
itscommentary that the case may arise fairl often.
The learned Agent for the Federztl Republic was of the opinion that if
situations like those mentioiied constitute the main content of the special
circumstances clause, this clause would practically be without application and
the equidistance principle would be the onIy and exctusive rule. The Court
knows the geography of the world an3 will be fully aware of the multitude of
smali isIandswhich in many parts of the world might interferewith the delimi-
tation of the continental shell'.
Geographical configuratioris constituting special circumstances within the
meaning of the Convention can be of :isomewhat different kind. In figure F in
the Rejoinder, 1, page 534, is shown a Iorigthin peninsula which has the same
effectas the island shown in figure 1:. As shown in figure G, the difference
between the island and the peninsula is, infact, not considerabte, and just like
the island the peninsula could, of course, be situated in a different way, for
instance, close to a lateral eqriidistanci:bciundaryas this boundary would be if
the peninsula were not there.148 NORTH SEA CONTINENTALSHELF
No doubt the problems described will exist far more often with regard to
islands than to peninsulas. But the basic legalconsiderations are the sarne.Even
if the basis for a State's exclusiveright to continental shelf is the continuation
of that State's territory into the sea, this holds goodasnfar as the more solid
part of the territory is concerned. If highly projecting, materially insignificant
parts of the territory should be vested with full rights to continental shelf,
injustice would bedone to the opposite or adjacent State and the specialcircum-
stances clause might then be applicable.
No doubt this interpretation differsconsiderably from the understanding set
forth by the Federal RepubIic, according to which the clause is applicable
wherever geographical circumstances causethe equidistance area, judged by a
standard of proportionality betweencoastalfronts, to be lesssatisfyingto one of
the States involved. Here the Federal Republic cornpletely disregards two
provisions of the Convention :
First, the circumstances should be special, but the Federal Republic invokes
any geographical circumstance if only the result is less satisfying.
Second, the deviation from the equidistance line should be justified, but the
Federal Republic disregards any consideration of the rights of the neighbour
State to continental shelf.
True, as Professor Waldock pointed out, the learned Agent foi the Federal
Republic, in the record for the second day, page 45, supra, accepted the con-
dition that a deviation should be justified, but he then, in fact, deprived this
condition of al1content by placing it solelyin the context of what he considers
equitable apportionment.
The Court adjournedfrom 11.20 am. fo 11.55 am.
Beforethe recessI had just hished my presentation of our understanding of
the special circumstances clause basedon the wording of the Convention and
on what we consider ordinary legai considerations.
The interpretation we have put forward here is in full conformity with the
travaiix préparatoires.According to this interpretation, the clause may be
applicable with regard to some islands aswell as to the exceptional configu-
rations ofthe mainland Coastin the form of somepeninsulas, and as the situation
of islands which 1have described is quite cornmon, the question of application
will arise fairly often, asmentioned in the Commentary of the International
Law Commission.
If one goescarefullythrough al1reports on the work of the InternationalLaw
Commission and at the Geneva Conference, it will be seen thatthe question of
thespecialcircumstancesclauseismostlytreated in quite general terms,but each
of the comparatively fewtimesa more specificcoastalconfiguration ismentioned
as a possible special circumstance, it is either an insignificant islandor a
peninsula or promontory. It is nowhere possible to find any indication that a
rule of the kind asserted by the Federal Republic has been contemplated. An
idea of proportionatity based on coastal fronts never occurred to anyone.
The Iearned Agent for the Federal Republic in his presentation disagreed as
to what we have said regarding the travauxpréparatoires.But unhappily in the
record of the second day, page 44,supra,he sustainshis disagreement orily with
a reference to the Memarial, paragraphs 50 to 52 and 68 to 72, and there, as
far ascoastal geographical configurations are concerned, the Federal Republic
has not presented, either from the work of the International Law Commission
and the Geneva Conference, or in the doctrine from the year 1953,when the
clause was formulated in the International Law Commission, any reference to ARGUMENT OF MR. JACOBSEN 149
anything but unimportant isl,mdsand.peninsulas. The travauxpréparatoires,as
well as simple legal considerations, lead to the conclusion that as far as geo-
graphical configurations are concerned the scope of the clause is in the essence
the one Ihave advocated, a scopethat givesthe clause a fairly wideapplication.
Beforeleavingthis more general part of the question of specialcircumstances,
1find it necessary to commeiit on one other general point of the clause. What
are the consequences of the <:lausebeing applicable?
According to Article 6of the Convention, the result isanother bounclaryline,
The Convention does not indicate din:ctly what the other boundary line should
be, but it seemspretty certain that the Convention, in case the clause is applied,
envisagesthat there is another boundiry line. It does not seem to envisagethat
the result is a complete voiciand th:it no result is possible on a legal basis.
If the clause is understood ai; maintainetl by the two Governments, there is a
result which, in fact, offersit~elf.In figure E of the Rejoinder, if the reason for
the clause being applicable is that thi: island is too srnall and unimportant to
represent the territory of Statc:A, the clbvioussolution would beto disregard the
island and delimit the equidistance boundary as if the island did not rxist. The
result would bea median line based onthe two mainland coasts only. In figureF
the peninsula should be disregarded iii the same way.
These results would be the direct consequences of the reasons in law for the
exception being used. This is nothing new. Tt was suggested at the Geneva
Conference by the British iielegate, Kennedy, a well-known authority on
maritime boundaries and, according to the officialrecords, nobody seemed to
disagree. What he said can be found in the Rejoinder, paragraph 128:
"he suggestedthat, for the purposes of drawinga boundary, islands should
be treated on their merits, very sn~allislands or sand cays ancoritinuous
continental shelf and outside the belts of territorial sea being neglected as
base points for measurcment and having only their own appropriate
territorial sea".
Now, of course, these questions are.not always as simple as indicated in the
exampIes cited by Commander Kennsrdyor the examples shown in figures E,
F and G. Considerable doubi:may exist jvhether an island, considering its size
as well as its position, should be takenas a special circumstance. In such cases
it might be natural inan agre~mentarid, perhaps, in a judicial decision, to give
an island part weight and, for instance, determine the boundary as being
placed in the middle betweentwo equidistance lines, one taking the island into
account and one leaving it out. But even ifthe result might be a boundary line
of this kind, this application of a modifietlequidistance principle would leadto
a result based on legal considerations.
The Agent for the Federal Republic was during his oral presentation strongly
opposed to this understanding of the consequences.He based his disagreement
mainly on the question: If this were tlie intention of the Convention why does
not Article 6expressIystate that in the case of special circumstancesthe bound-
aryshould be constructed on i~therbaselines?This is in the record of the second
day, page 47, supra.
This question is, at least to some extent, based on a misunderstanding.
Article 6 of the Convention treats special circumstances in general, be it
coastal geographical circumst;incesor spesial circumstances of quite a different
kind.
Here in these two cases we are concerned only with coastal geographicai
configurations because nothing else bas been invoked by the Federal Republic
and what 1have said has regard to such configurations onIy.Article 6, covering150 NORTH SEA CONTINENTAL SHELF
al1kinds of special circumstances in one singlerule, could not very welIin that
rule indicate expressly the consequences attached to only part of the circum-
stances covered by the rule.
It shouldperhaps beaddedthat a boundary deiimitation of thekind mentioned
by Commander Kennedy has now taken place, although the agreement is not
yet ratified. The Italian-Yugoslavian Agreement shown in Annex 7 in the
Rejoinder, 1, page 559, became known to the two Governments as published
at such a time that it could be included in the Annex to the Rejoinder, but
could not be comrnented upon in detail.
The solution here can be seen from chart No. 1 in 1,page 563, showing the
agreed line of delimitation asa dotted line and a line of delimitation applying
the 1958Geneva Convention as a fully drawn line. This last line represents in
fact the equidistance line taking everything into account.
It will be seen that the agreed boundary line on some points deviates from a
true and full equidistance line andthe reason is simply that some small islands,
both Italian and Yugoslav, have been disregarded. Two of these, the Yugoslav
island Pelagosa and the smaller island east of it, are situated quite near to this
modified equidistance line and they have consequently been given zones of
12 nautical miles, or the maximum territorial sea recognized.
The specialcircumstances clause is generallyin short talked ofasan exception
frorn the equidistance rule. But, as1 have tried to show, if this exception is
applied to coastal geographical circumstances, the boundary line is never-
theless drawn on the basis of equidistance. The special circumstances clauseis,
however, even in this field, an exception from the equidistance rule, when this
ruIe is seen with its true and full content.
According to Article 6 of the Convention, the rule is that the boundary shall
be determined by application of the principle of equidistance from the nearest
points of the baselines from whichthe breadth of the territorid sea ismeasured.
If the exception is applied because some part of the baseline is too special, or
perhaps light-weight, to serveas a basis for rights to continental shelf, then the
principle of equidistance is rnaintained but applied to other and better starting-
points. Itmight be expressed in the way that the exception has not regard to
the fundamental principle of adjacency or equidistance, but to the geographical
facts on which this principle is to be applied.
When these results of the clause, appliedwithin its scopas weunderstand it,
are compared with the results of the clause as understood by the Federal
Republic, a marked difference will be seen. It follows of necessity that if the
clause is considered applicable in any geographical situation in which the
equidistance principle isfound to lead to results lesssatisfying because they are
not proportionate, no solution could possibIy be at hand. If this were not the
case, the Federal Republic would, no doubt, have indicated the boundary line
to which she wants to lay clairn. There is no indication of this kind.
On the contrary, by formulating Submission 2 (c) to the effect that special
circumstances exclude the application of the equidistance principle, and in this
way basing the invoking of the clause on terms different from those of the
Convention, the Federal Republic has directly indicated that when the clause is
understood in their way there could be no result forthcoming. And this means,
of course, again, in our opinion, that the wording invoked by the Federal
Republic is not the wording or the mle of the Convention.
Mr. President, 1 shall now turn explicitly to the question whether special
circumstances within the meaning of the Convention are present in the areas
covered by the two cises. The Danish and Netherlands Governments empha-
tically deny that such circumstances are present, and it seems to be accepted AR~~UMENT OF MR. JACOBSEN 151
that it is up to the FéderalRepublic, who invokes the clause, to indicate and
show what special circumstances are invoked.
In this part of my address 1 shall mainly deal with the question as it was
presented by the learned Agent for the Federal Republic, and then return to
what is left frorn the written proceedings.
Ithas certainly not been euy to fallow the lines of reasoning of the Federal
Republic, and there ha,on ~ur sides,been considerable doubt asto what was
in fact indicatedas a special circumstance. But in the very last part of the pre-
sentation by the learned Agent for the Federal Republic a considerable degree
of clarity was obtained. It is, however, necessaryto touch upon what seemedto
be the position of the Federal RepubIic almost to the end of the oral presenta-
tion.
The Federal Republic has in the written proceedings, and the Agent for the
Federal Republic in his presentation,, beyond what 1 have already mcntioned,
relied on the assertion that projectinl: parts of the coasts of Denrnark andthe
Netherlands played a decisivr:part in causing the delimitation which, according
to the Federal Republic, is iiiequitable.
What this really meant wasdifficuli:to understand. The direct understanding
would be that on the coasts of the Netherlands aswell as of Denmark there
should be peninsulas affectingthe equiciistance boundary. The two Govem-
ments are of the opinion that some pc:ninsuIasare typicd cases of geographical
circumstances, and exactlythe same h?sbeen expressedbythe Federal Republic
in the Reply, paragraphs 59 to 61. The difficulty was that it was impossible to
find any such peninsulas ori the North Sea coasts of the NetherIands and
Denrnark.
During the oral presentation it becamc clear that the Agent for the Federal
Republic used the expression "projecting part" also ascoveringa configuration
such as the one on the map showing the coastlines of the Dominican Republic
and Haïti l,a situation where the nlainland coasts of two States are lying
approximately at right angles to each other. It washere asserted that this con-
figuration caused inequitable diversion of the equidistance line, although it is
dificult to see what is wrong with this, apart from the small islands, quite
normaldistance lineThe problem was, however, that nothing having the least
simiIarity with this situation does exisinthe relations between Denmark and
the Federal Republic, and between th!: Netherlands and the Federal Republic,
or at al1in the south-eastern part of the North Sea.
Furthermore, a diagram was produced showing the alleged inequitable
diversion of the equidistanct: line rejulting from the existence of what was
called a headland. This might be a peninsula, and consequently possibly a
special circumstance, or it might be a coastal configuration as the one between
Haïti and the Dominican Republic, which is something quite different.
What is really interesting about al1i.hisis, however, that it was finally, in the
very last part of the presenlation, declared, without any qualification, that
nothing of this has the slighti:st bearing tipon the two cases before the Court.
The learned Agent for the Federal Republic declared on the second day of his
presentation, in the record, page 50, supra,asrevised:
"Suppose you would is13latethe: Danish and the northern part of the
German coast and disregard the existenceof al1other coasts of the North
Sea, as if both countries were facing an open sea. Then it might be pos-
sible, under this hypothesis, to regard the areas Westof both countries as
See p.28, supra.152 NORTH SEACONTINENTAL SHELF
a natural continuation of their territories into the sea. The equidistance
line could then be regarded as normal and equitable. You could do the
sarne with the Netherlands coast and the adjoining part of the German
coast and disregard the other North Sea coasts, just as if both countries
were facing an open sea to the north-north west, the areas north-north
west of both coasts might then be regarded asa natural continuation of
the Netherlands or German territories into the sea. The equjdistance
boundary might then, in such a case,be regarded as normal and equitable."
This means, Mr. President, that now there is agreement that on the coasts of
Denmark and the Netfierlands there are no projecting parts infiuencing the
boundary lines, be it peninsulas or configurations like the one regarding Haïti.
The Federal Republic does not assert that in any of the two casesseen in isola-
tion there is any inequitable diversion of the equidistance line. In short, the
Federal Republic agrees that if there were no Netherlands continental shelf,
the Danish delimitation vis-&visthe Federal Republic is quite correct and can-
not in any way be contested by the Federal Republic, and similarly, if there
were no Danish continental shelf the Netherlands delimitation vis-à-vis
the Federal Republic is correct andcannot be contested by the Federal Repub-
lic.
This again means that no special circumstances, within the meaning of Arti-
cle 6 of the Convention, exist with regard to any of thtwo delimitations seen
in isolation. And it rneans that everything that has been said or implied as to
the equidistance boundary being based on single projecting points has ben
completelyretracted.
This is, of course,no mistake or slip ofthe tongue on the part of the Agent
of the Federal Republic. It has constantly been the position of the two Govern-
ments that it is so, and they have tried to show it in two diagrams. It is in the
Danish Counter-Memorial, figure 3, at 1, page 213, and in the Netherlands
Counter-Mernorial, figure4, 1,page 366. These diagrams simply serve to show
the continental shelf of each country, without comparing it with the German
continental shelf.
In the Danish diagram this is done by leaving out the political frontiers on
the continent and the corresponding equidistance boundaries, and in the
Netherlands diagram by leaving out the GermanlDanish frontier in the sarne
way. This gives, asa result, the continental shelf of each State isolated frorn
the question of comparison raised by the Federal Republic.
The point of the two diagrams-and here the Federal Republic now com-
pletely agrees-is that when the shelf areas of Denmark and of the Netherlands
are seen in isolation and not in comparison with that of the Federal Republic,
they are completely normal continental shelf areas, lying nearer to the coast of
Denmark and the coast of the Netherlands than to the coast of any other State,
and delimited by normal andequitable equidistance lines.
So farthere is no case at all. On what bais, then, does the Federal Republic
invoke the clause of special circumstances?
According to the learned Agent for the Federal Republic-it is in the record
for the second day at page 51, supra-the Danish and Netherlands coasts are
projecting towards the centre of the North Sea, while the Gerrnan coaçt curves
back. And it is explicitly declared-in the sarne record on page 51, supra-
that when the Agent for the Federal Republic talks about projecting parts, he
means these general directions of these general coastlines. This seems to be
quite far from the usual way of describing these things, but now the situation
has been made clear. There are no projecting parts in the usual understanding ARCIUMENTOF MR. JACOBSEN 153
of this expression, but the FederaI Republic has based its claims on the general
direction of the Danish and the Nethi:rlands coasts.
It is claimed that, as a consequence (if these directions of the coasts, the
equidistance lines on both !;ides of the Gerrnan continental shelf area are
distorted, so that they meet not far froin the German coast. This is a more
elaborate way of saying what was expressed in the Reply, paragraph 83, that it
isthe almost rectangular bend inthe Gierniancoastlinethat causesboth equidis-
tance lines to meet before the Germail coast.
Before going further, 1 shciuld make some comment on the allegation that
the equidistance lines are distorted. A line of equidistance always indicates the
exact geometricalsituation, and in the geometrical sense it cannot be distorted.
It might, however, in the legd sense, be justified to talk of distortion in cases
where the equidistance line isinfluenced by geographical factors that must be
regarded asspecial circumstances, wilh the consequence that the equidistance
line should be corrected.
However, reverting to the main line of my argument, here we have complete
agreement betweenthe Parties that the DanishJGerman equidistance boundary,
and the NetherlandsIGerman equidistance boundary, when seen in isolation,
are completely normal and justified. The fact that these lines, in a legally cor-
rect way, indicate what is nearer to earh of thethree States than to any other,
iç not in the least influenced t~ythe assertion by the Federal Republic that the
aggregate effect of these two equidktance lines should lead to some con-
sequence. There is not the siightest basis for talking of any distortion of equi-
distance lines.
It is tme,as asserted by the Federa R.epublicin the Reply, paragraph 83,
that the alrnost rectangular beod in the German coastline, or to be more precise
a bend of about 100 degrees, causes the two equidistance boundaries to meet.
It isalso undoubtedly true tkiat, if the geographical situation were quite dif-
ferent and if the aggregate coastlines ofthe three States were one long, practic-
ally straight line, the equidistance boundaries would not met-at least not in
the sarne point-and the continental shelf areaof the Federal Republic would
be larger.
But this is something quite different from any question of distortion of
boundary lines. It has been iigreed, i~ndit is an undeniable fact, that these
equidistance boundaries, which have so long been criticized so firmly, have
been constructed quite propei-lyon tfie basis of the DanishIGerrnan and the
NetherlandslGerman coasts vrhich are:ordinary, more or less straight, coasts.
It has been agreed that, seen anly in i:heisolated reIations between Denmark
and the FederaI Republic, and the Netherlands and the Federal RepubIic, no
criticism could be directed against theni. How then is it possiblefor the Federal
Republic to maintain that this system of deIimitation iscontrary to the rules of
lawas envisaged by the Federal Repulilic?
1shall here, Mr. President, rcvert to the generalcharacterization of the special
circumstances clause regardirig whicki the Agent for the Federai Republic
formulated a declaration in the followiingwording, which will be found in the
record for the second day at page 50, ::upra:
"Any geographicai factor whicli diverts the course of the equidistance
boundarv between two States in silicha manner as to cause the allocation
of considerable areas of the continental shelf to one State . .. which is
necessarilyclassifiedas a :natumlc:ontinuation of the territory oa second
State, then such a factor must lbe regarded as a special circurnstance
within the meaning of Article 6, paragraph 2, of the Convention."154 NORTH SEA CONTINENTAL SHELF
On the surface, that seems to be in fact the same understanding as 1 have
advocated on behalf of the two Governments. The problem of special circum-
stances exists, and can only exist, between two States. The decisiveelement is
a geographical factor which causes sorne area naturally appertaining to one
State to be allocated to the other State.
How could this possibly lead to the equidistance boundaries being corrected
because of special circumstances? There is agreement that there are no coastal
configurations that could be considered special circumstances. The equidis-
tance lines as such are fully accepted.
The idea here, as wellas, infact, almost thecase of the Federal Republicas
a whole, is based on a completely new line of thought and argument. Tme, it
has been touched upon in the Reply, but rather as akind of illustration. It had
no existence in the Mernorial, but after the closing of the written proceedings
it has come into existence as in fact the only basis for the claim of the Federal
Republic.
The question here is whether the equidistance boundaries should be deviated
from. This might also be expressed to the effect that the question is whether
the Danish and the Netherlands equidistance areas are to be reduced in favour
of the Federal Republic.
In order to effectuate such an operation, the learned Agent for the Federal
Republic quite sirnpIyputs up, while interpreting a rule of exception from the
equidistance nile, a quite new principal rule of delimitation of continental,
shelf,a rule to the effect that each State is entitled to what rnight be caaled
trianguiar or sectoral continuation of that State's territory into the sea,
This, of course, is natveryclear concept, seenin terms of boundary delimit-
ation, and therefore the Federal Republic findsit possible to definethis concept
as it thinks fit. And, as the Court knows, the Federal Republic generally con-
siders the triangle or sector based on the Borkum-Sylt line and stretching to the
British/Netherland sr/Doantinshhe North Sea, as the nattiral continua-
tion of its territory.
Now having al1by herself created a new principal rule of delimitation, the
Federal Republic compares the result of this rule with the result of the actual
rule of the Convention-the equidistance rule. There is, of course, some over-
lapping between the German continuation triangle or sector and the Danish
and the Netherlands equidistance areas.
Accordingto the understanding ofthe Convention put fonvard by the Federal
Republic, this is a special circumstance, not to the elTectthat the continuation
triangle must yield, but to the effect that the equidistance boundaries should
be corrected in order to respect the triangle.
This isa remarkable way of interpreting rules of law. One might think that
some misunderstanding had crept in. But that is not the case.
During the very last part of his presentation-therecord for the second day,
page 50, supra-the learned Agent for the Federal RepubIic made his position
crystalclear. After having said that the casewasreduced to the question whether
the equidistance boundary follows the true limits of the continuation of the
States' territory into the sea, he added:
"As to the situation before the Danish, German and the Netherlands
Coast,the real question is: What areas have to be regarded as the natural
continuation of the one or the other State? That brings us in fact back to
the sarnecriteria which weneeded for determining the equitable apportion-
ment of the continental shelf between the parties under the non-con-
ventional régime." ARGUMENT OF MR. JACOBSEN 155
This is the essence of the imderstaindiilgof the special circumstances clause
asserted by the Federal Republic wliile interpreting this exception from the
equidistance rule. The Federal Reputilic interprets the clause to the effect that
if the main rule, the equidistance pririciple, leadsatresult differentfrorn one
which might have been reaclied if the epuidistance-special circumstances rule
did not exist,then that latter rule must prevail. This means, quite simply, that
the effect of the special circumstancei;clause is to negate completely not only
the main rule of Article 6--the equidistance principle-but also the whole
principle of adjacency or propinquity coiitained in Articles 1 and2, to leave a
freefieldfor any State wantin:;to put forth any idea of delirniting the continen-
tal shelf.
I do not think, Mr. President, that 1cariSaymore than this. Thetwo Govern-
ments cannot accept that a de of exception can be interpreted in this way seen
in its relation to a main rule.
As part of these legal positions it is almost asserted that the concept of tri-
angular continuation of the territory into the sea as the only proper rule of
boundary delimitation, the concept on which the whole case of the Federal
Republic has now been based, is de:rivedfrom what we consider the funda-
mental rule in this respect.
True the two Governments have mentioned that the sovereign rights of
coastal States to continental !ihelfare based on the concept of the continuation
of the territory into the sea. This was sain order to explain that the question
at hand has regard to the extension of the rights of the coastai State and the
delimitation of the area involved, asopposed to the German concept of a
sharing out of a common area. Antl the two Governments have, when in-
dicating their understanding clfthe spe:cialcircumstances clause,explai~iedthat,
in special situations when the:coast did not truly represent a territory behind,
part of a continentaI shelf wcluldnot be:rtme continuation of a territory and
therefore the clause ofexception might bc applicable.
However true this is, Mr.President, it issomething quite different from what
theFederalRepublic isnow asserting. One thing is the basic thought from which
a legal institution arises. Quite another thing is the framework of legal criteria
within which this institution is brougbt into the realm of actual law. In this
discussion of the special circumstancesrule both Parties clearly basethemselves
on the formula of the Convention, and neither the Convention nor the travaux
prkparazoires give the slightest indication that the continental shelf could be
,delimited through a general t:oncept of continuation of the territory into the
sea, based on lines called coastal fronts. Ztis clearly Iaid down that the rights
of the coastal States are based on adjacency and propinquity which in Article 6
is formulated in the rule of ecluidistance.
This position onour sidesic.clearlyt:xpressedduring the written proceedings,
for instance, paragraph 24 of the Common Rejoinder, to which 1 here very
strongly refer.
The rule of delimitation put fonvard by the Federal Republic-the concept
of continuation of the territory into the sea-apparently lacks any criteriaas
to the delimitation of the boundary. How could it be decided, ifcontiniiation is
to be different from propinquity, whe~rthe continuations from two coasts meet
beneath the sea? The Federal Republii: is fully aware of thisand has therefore
tried to furnish the necessary criteria I3ysetting up the completely new coastd
frontages of Denmark and the Netherlands as the basis for the continuation of
the territories of each State.
Itwas our impression, Mr. Presidei~t,that both the technical basis for and
the results ensuing from this geometrical r:onstruction would cal1for searching156 NORTH SEA CON~NENTAL SHELF
comment, but the learned Agent promised to demonstrate, in the second round,
the relation between the scheme he envisaged and the scheme envisaged by
Professor Oda. We take it for granted that this wilbe in the farm of diagrams,
and we therefore feel both bound and entitled to postpone our comments
until we have ken able to see what these schemes really contain.
The Court will recall that when the Agent for the Federal Republic-the
record for the second day, page 50, supra-explained how the Danish and the
Netherlands equidistance areas would be quite proper, seen in isolation,and
ifonly the continental shelf area of the other States did not exist, he clearly did
this in the terms that the maritime areas which in the two hypothetical cases
would be free from either Danish or Netherlands sovereign rights would con-
stitute the natural continuation of the Gerrnan territory. These two areas are
certainly not the German continuation area so elaborately explained on
the basis of coastal frontages. But where then is the continuation concept at
dl?
The situation is in fact quite simple. The FederaI Republichas at last found
it necessaryto accept the obvious fact that both equidistance boundaries when
seen as the delimitations between Denrnark and the Federal Republic and the
Netherlands and the Federal Republic are perfectly normal and just and there-
fore unopposable.
Consequently, the Federal Republic can only rely upon what could be called
the cornbined effect of the Danish and Netherlands equidistance areas, and as
apparently the Federal Republic is very wellaware that this situation cannot by
any stretch of imagination be brought within the special circumstances clause,
a cornpletely new approach is made during the oral hearings.
The Federal Republic introduces boldly, whiIe interpreting the rule of the
Convention, a completely newmain rule of delimitation called the continuation
of the territory from coastal fronts. This new rule she construes through the
interesting rneans of coastaI fronts to give the result already indicated in the
Memorial, 1,page 85, but on quite a different basis;and to the extent this new
concept of delimitation is in conflict with the actual main rule of delimitation,
the equidistance principle, she simply declares that special circumstances are
present with the effect that therule of the Convention based on equidistance
must yieId and the triangle based on her own rule of continuation shail
prevail.
This is the real argument on special circumstancesas put forward during the
oral presentation and it is on this that the Court has got to decide in this part
of the case.
Although what 1have commented upon so farcovers the Iegalconstructions
presented orally here in Court, 1 shall not pass over the fact that at earlier
stages of the cases the Federal Republic has presented its case for special
circurnstances in a way that had more relation to the existing legal and geo-
graphical realities, andthe Agent for the Federal Republic has explicitlyupheid
everything contained in the written proceedings.
Inthe Reply, paragraph 83,mentioned severaltimes before, wherethe Federal
Republic taiks about the bend in the German coastIinecausing the two equidis-
tance lines to meet, it isasserted that this geographical situation is certainly
special enough to corne within the meaning of the special circumstances of
Article 6, paragraph 2, of the Convention. Here is an invocation of special
circumstances without the elaborate constructions which have been built up
around it in the oral proceedings.
As the two Govemments understand the clause it is clearly inapplicable
already, because a correction of the equidistance boundaries could never be ARGUMENT C~FMR. JACOBSEN 157
justified. The Federal Repubtic has now' without any qualifications, accepted
that the equidistance areas of both Denmark and the Netherlands, eaciiof these
areas considered by itself, are completely correct and just. The reason is, of
course, that every square inch of these:areas isnearer to the coasts representing
the mainland of Denmark or the Net:herIands,as the case may be, than to the
coast of any other State. CorisequentXytllose areas belong to those two States
under international maritime law.
When this is so, and on th;rt there is agreement, another boundary line than
the equidistance line could never be lustified. There could be no reason on a
legal basis for reducing any of those two quite normal equidistance areas.
As 1have tried to make clear, a correction could only be justified within the
meaning of the Convention if circumstailces regarding both continental shelf
areas did rnilitate in favour of such correction, and whatever the Federal
Republic might think of her continen.tal shelf area it seems quite certain that
nothing regarding the Danish and the Netherlands areas couId givereason for a
correction.
At the same time it seemsm:cessaryto consider how the demanded correction
could possiblybe carried out. The FedlsralRepublic has certainly not during the
written proceedings indicated anotheir pcissibIeboundary line or any kind of
principleeither in law or in mathematics according to which a deviatingbound-
ary line could be construed. 1:here, hlr. President, disregard the ideas of con-
tinuation from coastal fronts. As 1ju!;t mentioned, we feel bound and entitled
to postpone our comments on this unitilwe know what it really means.
And it seems to be a reasonable interpretation of the special circumstances
clausethat the State invoking specialcircumstancesjustifyinganother boundary
line should at least give sorne indicai.ion of this other boundary line. If that
State isunable to do so, the invocation seems to be seriously lacking in legal
foundation.
But the position of the Fed.era1Republic in this respect is quite natural and
easy to understand. For it would be impossible to indicate any kind of prin-
ciple applicable. What the Federal Republic asks for is a clear ad hoc decision
in fact ex aequo et bono.
That this is so, can be seeii from wha~the Agent for the Federal Republic
said in the end of his presentation, tlnei.ecord for the second day, page 51,
sllpra.It was here explained that, if the Danish continental shelf did not exist,
the Federal Republic would tùlly respeci:the equidistance boundary towards
the Netherlands and be content with vhat she got to the north, and viceversa.
When this is the position of the Fede:ralRepublic, how then is itpossible to
maintain that there is, as expi-essedin the Compromis, any principle or rule of
international lawaccording to which sliecould beentitled to acquire part of the
Danish and part of the Netherlands equidistance areas, the appropriateness of
which she has fully recognizeti.
As far as State practice exists in sii.uations of this kind, it differs from the
position taken by the Federal Repub'lic,and a situation like this is certainly
not unique.
Iraq, as Professor Waldock pointed out, being in a geographica1position of
practically the sarne kind as the Fedcral Republic, has uniIaterally delimited
her continental shelf accordiiig to eqiiidistance, apparently without imagining
that special circurnstances coirld possiblyjustify another boundary liiie. And
this has been done in an area where minera1 resources may be found any-
where.
Similarly, the impending Belgian delirnitation of continentaI shelf according
to the equidistance principlc: fully a.ccepts the rights of the neighbouring158 NORTH SEACONTINENTALSHELF
States, although theresult for Belgiumis verymuchthe sarneas it is for the
Federal Republic,her continentalshelfarea king stronglyinfluenced by the
position and directioof thecoastsof the adjoiningStates,mainly the United
Kingdom.
The Court roseut 12.55p.m. ARGUMENT i3FMR. JACOBSEN
ETGHTHPUBLIC HEARTNG(1 XI 68, 10.5am.)
Present:[Seehearing of 23 X 68.1
Mr. JACOBSEN: Just before the Court adjourned 1 hadbeen discussingthe
albgation in paragraph83 of the Replythatthe bend in theGeman coastline is
a special circumstance within the meaning of the Convention. Ifound that this
could not possibly be the case:,mainly because it couldnotbejustified to reduce
the Danish and the Netherlands equidistance areas which are, also according to
the Federal Republic, each, individually, quite correct and unopposahle.
Here 1 continue the discus.sionof the invoked combined effects of the two
equidistance lines, whereI ha.vejust cinemore point. There are, Mr. President,
two cases before the Court. In one casi:,Denmark wants her boundary towards
the Federal Republic and tovirardsthe Netherlands respected, and in the other
case, the Netherlands wants her equidistance boundary towards the Federal
Republic and Denmark respected.
ln these two cases the dispi~teexistbetween the Federal RepubIic and Den-
mark, and between the Federal Reputdic and the Netherlands, as the casemay
be, Denmark and the Netherliinds eacli w;intsits boundaryline respected by the
Federal Republic and what boundary relation the Federal RepubIic may have
towards the other State is outside the question at hand.
According to Article 6, paragrapl.1 2, of the Convention, in the case of
adjacent States-
"the boundary shall be determined by application of the principle of
equidistance from the nearest points of the baselinesfrom whichthe bteadth
of the territorial sea of each Statr: is measured".
It seernsquite apparent that according to the main rule only the baselineof
the two States, between whom the delirnitation is to take place, are of any
consequence. No other factor is taken into consideration, and this isinherent in
the pnnciple of equidistance pure and simple.
The rule of exception isforrnulatedinthe closestpossibleconnection with the
main rule and therefore ha:; regard to possible geographic configurations
regardingthe Coastof one of theStates, or both States, involvedin the boundary
delimitation. But it has regard to nothing more. Especially it does not have
regard to a boundary delirni~ationtowards some other State. The boundary
delimitation is clearly envisaged as aquestion between the two States whose
continental shelves meet somt:whereirithe sea, and there does not seem to be
the least possibility of introdiiciagbouridary elsewhere,vis-&-vissome other
State, into the questionof delimitatioil.
The declaration of the learried Agent for the Federal Republic regarding the
general understanding of the special circumstances clause-1 have quoted it, it
is in the record for the second day, page 50, supra-quite clearly expressed
that the clause has relation only to the equidistance boundary between two
States. 1presume that this dedaration should mean something.
The idea of a combination of severallcontinental shelf boundaries as a factor
of importance is possible only if the dq?limitationprocess, as advocated by the
Federal Republic during the written pa~ceedings,is viewednot according to the
rules of the Convention, butas a question of proportionate division. And even
in the light of this constructioii the resiilt beucompleteconfusion. Should160 NORTH SEA CONTINE~AL SHELF
Denmark, according to the special circurnstances clause, beentitled to compen-
sation from the FederaI Republic if Denmark's continental shelf boundary
towards Norway rnight be less satisfying? Or should, in the same way, the
Federal Republic be entitled to compensation from the Netherlands in the
North Sea if the Federal Republic's boundary in the Baltic towards Denmark
were lesssatisfying?
Such questions must necessarily corne up if the line of argument of the
Federal Republic were accepted. And the fact that the equidistance boundaries
towards the two quite separate States, Denrnark and the Netherlands, here
intersect iof no legal significance.What makes the Federal Republic cornplain
of the boundary line is, in both cases before the Court, that she finds her con-
tinental shelf based on equidistance less satisfying only because of the con-
sequencesof the quite separate and independent delimitation of the continental
shelf towards another State.
It was never envisaged that a situation like this could be a special circum-
stance within the meaning of the Convention, when it is apparent and agreed
that no such special circumstance exists between the two States whose con-
tinental shelf boundaries are in question.
So far, Mr. President, 1 have treated the question of special circumstances as
in the opinion of the two Governments it should be treated, as a question of the
rneaning of the clause, and a question of whether in these two cases special
circurnstances in the true meaning of this expression do exist. 1 liope to have
shown that nothing exists that could possibly be considered as special circum-
stances within the meaning of the Convention. When the Federal Republic,
who can hardly be unaware of this, nevertheless invokesthe clause of special
circumstances, it may be because the Federal Republic viewsthe situation in a
different sense.
As far as 1can see, the Federal Republic, finding its shelf area delimited in
accordance with the equidistance principle less satisfying, more or less throws
the Convention overboard and reasons in the following way. Our equidistance
area is not equal to, or proportionate with, those of Our neighbours: a result
like this is not just and consequently the result must be revised. The formai
basis for a revision of this kind must be the special circumstances clause.
A Iineof thought like this might at firstsight have someappeal and, although
it isclearly outside the positive rules of law of the Convention, it should be
shortly commented upon, It is not easy to definewhat comeswithin the concept
ofjustice except in the contextof established legalideas. This can be illustrated
by a general view of the legal treatment of this new international asset, the
continental shelf. 1think I can illustrate it in four points.
First, neither as a consequence of the Continental ShelfConvention, nor as a
consequence of the rules of international customary law regarding the rights of
coastal States-which rules are recognized by the Federal Repubiic-does a
landlocked State acquire any continental shelf.
Secondly, a State which is not landlocked, but has a link with the sea com-
pletely disproportionate with its size,as, for instance, and typically, the Demo-
cratic Republic of Congo, can acquire continental shelf only on the basis of its
short coastline, but nothing more.
These results are indisputabIe. And 1 think it is also indisputable that the
clause of special circurnstancesis totaiiy inapplicable in these cases. The land-
IockedStatecannot anywhereacquire continental shelfunder the clause,and the
Iarge State with the short coastline has no possibilityof getting compensation
from its neighbours under the clause of special circumstances. 1doubt that the
Federal Republic would seriously deny this. But if this is so, how can it then AR~~UMENT BY MR, JACOBSEN 161
possibly be ascertained that justice iinthis fieldnecessitatesequality or propor-
tionality of continenta1 shelf areas?
Thirdly, the position is exactly the same in a case as shown in figure 1 of the
Danish Counter-Mernorial, 1,page 200. The entire sea area here is continental
shelfand the coasts of the three States besideeach other are the samelength, but
Middleland gets only about isnehalf of the continental shelf of its neighbours.
It seemsindisputable that this result isfinal, although there isneither equality
nor proportionality inthe result. The specialcircumstances clauseisinapplicable
because the shelf area of evei-ysingIeState is a true expression of the principle
of adjacency based on true coasts regresenting the solid territory behind.
Fourthly, why then should the resu.ltbe different in the two casesbefore the
Court?Here also the State in the middle-the Federal Republic-gets lessthan
an equal shelf area. Here, too, the shelf areas of the two neighbour States are
fully normal and based on coasts fully representing the territory behiiid.
If there be any difference from the case depicted in figure 1 of the Danish
Counter-Memorial, it isthat whilein figure 1the result is caused bythe position
of another, opposite State, it is, in the two cases at hand, as described by the
Federal Republic itself, caused by the bend in the German coastline. If this
should make any difference,it must bt :hat here there is even lesslegal basis for
Middleland-the Federal Republic-getting compensation from the neighbour
States.
It is, Mr. President, a rnistake to i.hink that justice demands sorne kind of
equaIity or proportionality in the deliniitation ofcontinental shelf.Thedemands
of justice are not easy to definegeneriilly,but in every part of any legal system
these dernands are placed in :;ornefrainework of ideas. If the results of rules of
law are in accordancewith that framework of ideas, the rules and the results are
considered as just.
In theinternational legalsystemthereisno doubt astothatframeworkofideas
as far as the rights of States to mariiiimeareas are concerned. During a very
long period, such rights have been acquired by the coastal States only, and the
right has accrued to the coastid State only on the basis of its coast and with full
respect of the similar rights of adjoining States, be they opposite or adjacent.
This has always been considered justice within that part of the international
legal system.
When the concept of the continenta.1shelf came into being, the international
legal community stuck firrnl:~to thie.well-established notion of justice. The
work of the TnternationaI Law Comrriission,the outcome of the Geneva Con-
ference and the widespread acceptanct: of the Continental ShelfConvention, or
the principIes of that Convention, are arriple proof. The only change was that
preciselyin the interests ofjusticethe specialcircumstances clausewasexplicitly
inserted into the Convention-as wt:ll :as into that of the territorial sea-
with the aim, as far as geographic circumstances are concerned, of avoiding
that insignificant, projecting parts of the coast werevestedwith rights regarding
these new, and sometimes extensive, areas coming within the rights of the
coastal States. This was a well-conside.redclarification of the concept of justice
in this field.But othenvise, Mr. President, this conoept remained unchanged.
The FederaI Republic now. apparently, does not share this general opinion
of justice with regard to milritirne ;ireas-that they belong to the nearest
coastal State, and that the areas accriiing to each coastal State are dependent
upon, not onIythe length ofthe coast, but alsoupon the way in which the coast
is placed in relation to the coasts of other States.
But it should not be forgotten that not long ago, at the Geneva Conference
andfor quite a longtime after the Conference, the Federal Republic of Gerrnany162 NORTH SEA CONTINENTAL SHELF
apparently shared the opinion of practically ail other States as to what is
justice regarding maritime areas.
REQUESTBYTHE COURTAND QUESTIONSBY
JUDGE SIR GERALDFITZMAURICE
L~PRÉSIDENT: L'article49duStatut disposenotamment :«La Cour peut. ..
demander aux agents de produire tout document et de fournir toutes expli-
cations.»
Au présentstade delaprocédure,usant dudroitqui luiestainsiconféré,lC a our
demande aux agents des Parties de mettre à sa disposition la documentation
suivantedans la mesure où ils la possèdentou peuvent sela procurer:
Premiérement,tous procès-verbaux,notes ou rapports qui indiqueraient les
bases sur lesquelles les Parties ont détermineles délimitationsconvenues lors
des négociations qui ont abouti, respectivement, ?il'accord du 1"' décembre
1964entre le Rkpublique fédéraie et le Royaume des Pays-Baset l'accord du
9 juin 1965entre la République fédérale etle Royaume du Danemark, et en
particulierles motifs pour lesquels on a fixélespoints extrêmesoù ilslesont au
lieu de fixer des points situésplus prèsou plus loin de c6tel.
Deuxièmement,tous procés-verbaux,notes ou autres documents concernant
les discussionsqui sesont dérouléesau comitéd'expertsréunipar le rapporteur
spéciaIde la Commission du droit international - rapport du 18mai 1953 -
et qui indiqueraient les motifs et les arguments qui ont pu êtreavancésavant
qu'un accord intervienne sur Ies recommandations du comité relatives i Ia
détermination des limites latérales dans la mer territoriale de deux Etats
limitrophes et a la délimitationdes plateaux continentaux2.
Naturellement, les Parties pourront prendre leur temps pour préparer cette
documentationou la partie de documentation qu'ellespeuvent obtenir.
SirGeraIdFITZMAURTCE : 1shouIdlikctoput three questions to the Agents
of the Kingdoms of Denmark and the Netherlands, and they are asfoIlows.
First, with referenceto thecontention advanced on behalf of the Kingdoms of
Denmark and the Netherlands, to the effect that the 1958Geneva Convention
on the Continental Shelf embodied already received rules of customary inter-
national law, what significance, in the opinion of the two Kingdoms, is to be
attached to the following facts, namely:
First,that on the one hand, the prearnble to one of the other Geneva Con-
ventions, namely that on the régimeof the high seas, recites that the parties
desire "to codify the rules of international law relating to the high seas", and
that they have adopted the provisions of the Convention as being "generally
declaratory of established principles of international law", but that, on the
other hand, no corresponding recitals preface the Continental ShelfConvention.
Second, that Article 1 of the Continental Shelf Convention itself opens with
the words: "For the purposes of these Articles."
My second question is this, with regard to the contention advanced on behalf
of the two Kingdoms as to the meaning to be attributed to the notion of
adjacency, is this contention to be correctly understood in the following sense,
namely that a givenpart of the seabed, even ifit isnear the coast of a particular
country, cannot be considered as adjacent to it unless it is closer to that coast
than to the coast of any other country?
Seepp. 303-363, infra.
Seep.212,infru,andNo. 50, p.390, infra. REQUEST AND QUESTIONS 163
And myth'irdand Lastuestion. Wii:hrcferenceto the contention advanced on
behalfof the two Kingdoms, to the effectthat there is no essential difference
between the caseof median Iinesand that of lateral equidistance lines, would it
be correct to Saythat there i:;the following difference, namely that afrom
the distorting effectsof rocks and islainds-which can be met by the application
of the special circumstances exception--a median line, asits name implies,
does in principle alwaysgivi:to the Statesconcerned areasof the same size,
within the limits of their corrmon frontage on either side of the median inne,
the sensethat in each case tht:distanfri~mthe coast up to that line wbelthe
same for both; whereas lateml equidistmice lines often cause the areas thereby
attributed to the States conwrned to be of different sizes in a way that cannot
be accounted for merely by the lengtll of their respective coastlines.
The Court rose ut10.33p.m. NORTH SEA CONTlNENTAL SHELF
NINTH PUBLIC HEARING (4 IX 68,3 p.rn.)
Present: [Seehearing of 23 X 68.1
REPLY OF PROFESSOR JAENlCKE
AGENT FOR THE GOVERNMENTOF THE FEDERAL REPUBLIC OF CERMANY
Professor JAENICKE :Mr. Presidentand Judgesof the Court, incornrnencing
the second phase of the oral argument 1would first liketo giveour reply to one
of the questions posed by Judge Jessup.
The question was as follows: "Will the Agent of the Federal Republic of
Germany, at a convenient time, inform the Court whether it is the contention of
the Federal Republic of Germany that the actual or probable location of known
or potential resourceson or in the continental shelf, is one of the criteria to be
taken into account in detemining what is a just and equitable share of the con-
tinental shelf in the North Sea?"
In response to this question 1would like to state the following:
First, the criteria to be taken into account in determining what is a just and
equitable share of the continental shelf are primariIy, but not exclusiveIy,
geographical factors, The consideration of other factors and the weight which
should be attributed to them depends on their merits under the circurnstances
of the concrete case.
Secondly, if, as in the North Sea, there is no reliable information about the
actual location of economically exploitable resources of considerable import-
ance, the geographical situation alone determines the equitable apportionment.
Once agreement had been reached on the delimitation of the continental shelf,
later kiowledge as to the location of suchresources should not affectthe agreed
boundary.
Thirdly, economically exploitable resources of considerable importance,
located in areas where the boundary is disputed or yet undeterrnined may,
iinder the principIe of the just and equitabfe share, be taken into account in
determining the allocation of areas to one or the other State. This rnay be ac-
complished either by changing the course of the boundary line, or by means of
joint exploitation if the latter is feasible. Such a case rnay arise in particular if
the boundary line would cut across a single deposit. Since there are no such
resources in the North Sea, the delimitation of the continental shelf should be
made on the basis ofthe geographical situation, along the linessuggestedby the
Federal Republic of Germany.
Inthis context, 1may add that the sirnplest way to have achieved an equit-
able apportionment with respect to known or unknown resources would have
been to place the areas of the continental shelfof the North Sea situated farther
off the Coast under a régime ofjoint control and exploitation. The Federal
Republic had advocated such a solution in the earlier stages ofthe negotiations;
since the North Sea States had begun to divide the continental shelf among
themselves by boundaries, such a situation seems to be outside the realm of
reality. In the present situation, a division by sectors reaching the ofnthe
North Sea is an effective wayto givethe Parties an even chance with respect to
the potentialities of the continental shelf.
In response to other questions posed by Judge Jessup we have prepared166 NORTH SEA CONTINENTAL SHELF
applicable betweenthe Parties in the present dispute. 1may refer to paragraph 75
of our Memorial, 1,page 76, and to paragraph 79 of our Reply, 1, page 423,
where we have already explained that the delimitation of the continental shzlf
between the North Sea Statescannot beachieved by determining, asan isolated
act,the boundary line betweeneach pair of adjacent or oppositeStates,without
taking into account the effect of each boundary on the apportionment as a
whole. It is evidentIy impossible to pass judgment on the equitableness of a
continental shelf boundary without considering the whole geographical situa-
tion and its effect on the share it apportions to theone or the other State.
The delimitation of the continental shelf within the North Sea is interde-
pendent; each boundary will affectthe proportionate size of the share of each
North SeaState. In order to decide whether the equidistance method is appli-
cable to aspecifieddelimitation between two adjacent States, it is necessery to
evaluate the effectsuch a boundary line would have on the share of each of the
two States. In particular, a judgment whether the delimitation of the Gerrnan
continental shelf, by application of the equidistancemethod, vis-A-visDenmark
or vis-&visthe Netherlands, is equitable, wnnot be passed in isolation without
regard to the combined cut-off effect which both equidistance boundaries
would have on the size of the Gerrnan share of the continental shelf in the
North Sea.
Learned counsel for Our opponents contended further that the submissions
of the Federal Republic of Germany demanded frorn the Court not a delimita-
tion as between two States, but rather an equitable apportionment of an un-
specifiedarea of the North Sea continental shelf between the three States,and
such a demand appeared to him to travel outside the scope of the Special
Agreement. But by our submissions we have not asked the Court to distribute
a continental shelf area between the Parties, nor could we haveasked the Court
for a specificdelimitation.
To place the issue in proper perspectivebefore the Court 1should once again
explain the divergent legal contentions of the Parties as to the applicable rules
and principles. The Kingdom of Denmark and the Kingdom of theNetherlands
contend that the so-called equidistancespecial circumstances rule applies ac-
cording to which the Federal Republic would be obliged to accept the equidis-
tance line as the boundary.
The Federal Republic of Germany contends that the so-called equidistance-
special circumstances ruleisnot applicable betweenthe Parties becauseit would
not apportion ajust and equitableshare to the Federal Republic.Consequently,
the principle of the just and equitable share determines, on the basis of the
criteria relevant to the geographical situation in the North Sea,the delimitation ,
to be agreed between the Parties in pursuance of Article 2 of the Special
Agreement.
The difference inthe legal approach betweenthe Partiesis therefore the fol-
lowing. The Kingdom of Denmark and the Kingdom of the Netherlands con-
tend tht the Courtshould declare the equidistancemethod applicable between
the Parties because it isin theirview, equitable per se.The Court, it is accord-
inglyalleged,shouId not beallowed to look beyond the equidistancernethod for
determining whether this method will achieve an equitabIe apportionment
between the Parties. The significance of this would be that the Court would
merely put its seal under the result achieved by the equidistance method.
The Federal RepubIic, on the other hand, contends that the equidistance
method cannot apply, neither under general international law nor under the
Convention, if it were applicable between the Parties, because it is not estab-
lished that it apportions a just and equitable share to each of the Parties. It is REPLY OF PROFESSOR JAENICKE 167
the contention of the Federal Republic, and in that it differs from the legal
position taken by the opposing Parties, that the Court in ascertaining whether
the equidistance method is applicable between the Parties, should pass judg-
ment on the equitableness clfthe apportionment achieved thereby.
Ifthe applicability of the equidistancemethod is, as the Federal Republic
contends, dependent on the equita.bleness of the apportionment achieved
thereby, itis perfectly legitimate, if not necessary, to offer the Court criteria
which determine whether thi: apportionrnent is equitable or not.
We could have restricted ourselves to showing that the equidistance method
leads to an inequitable result. This, vcresubmit, is already apparent on the face
of themapwithoutfurther comment .whysuch an apportionment isinequitable.
We presume, however, that the Court would want to know what criteria we
offer as a basis for its judgrrient and what wouibe the equitable solution the
Federal Republic of Germariy envisages.
If the application of the equidistaiice rnethod Ieads to an inequitable result
the Parties are then placed into the position of having to agree on another
boundary line which would have to liein conformity with the principle of the
just and equitable share. The corniderations which the Court might find
pertinent to its judgment on the eqaitahleness of an apportionment will cer-
tainly provide a sufficieutbasis to ena'blethe Parties to cornetoan agreement on
an equitable baundary line.
1cannot seein what respect these silbniissionsand suggestions of the Federal
RepubIic of Germany wouId be equivalcnt to asking the Court for legislation
ad Roc, as the leamed counsel for oui. opponents put it. In his address he men-
tioned an obiterdictum by the Permanent Court of International Justice in the
Free Zones case. While 1think nothing could be said against the substance of
thisobiter dictum ofthe Court 1do ncltseehow it could bepertinent to Our case
since both Parties to this case, in th& submissions, do nothing more than to
ask the Court what should liethe rules and principles applicable in our case.
There is no request for adeviation fr,omthe existing law nor is there a request
that the Court establish a new régimr:.
I would like to stress the fact that the sentence quoted by the learned counsel
for our opponents was only .anobiter dic:tumand was not the legal ground on
which this case was decided kiythe Cclurt.The Court was prepared to go a long
way to assist the Parties to reach ai agreement and to dispose of the legal
issues that had prevented the Parties from coming to an agreement. The Court
declined, however, to pronouncea jutlgment which would be dependent on the
consent of the Parties.
1 might quote in this coritext from the same Judgment of the Court of
6 February 1930, published in P.C.I.J., Series A, No. 24, page 14:
"... it is certainly incompatible with the character of the judgments
rendered by the Court ;~ndwithithe binding force attached to them by
Articles59 and 60, paragaph 2, of the Statute, for the Court to render a
judgrnent which either of the Parties rnay render inoperative".
This opinion was upheld by the Court in its final judgment in this case,
published in P.C.I.J., Series ,414 No. 46>at page 161.
To conclude this point, 11-espectfullysubmit that none of our submissions
in its substance travels outside the liinits of the Special Agreements and that
we do not ask thereby the Court to exceedthe limits of its judicial function.
1shall now tum to the second priiicipal issue of the present case, the con-
tention of our opponents that the Fetleral Republic had to accept the appfca-
tion of the equidistance method in the lielimitation of her continental shelf.168 NORTH SEA CONTINEN~AL SHELF
Our opponents assert that the equidistance method is equitable per se; they
assert that the equidistance method is the only rule that could be followed in
the delimitation of the continental shelf, and they assert that any delimitation
founded on the equidistance method is valid erga omnes against any other
State.
Of course, they do not say so expressly. Presurnably due to the pressure of
our arguments against the general applicability of the equidistance method
they make the concession of calling it the equidistance-special circumstances
rule. But, if we look at the narrow interpretation which they give to the con-
ceded exception of special circumstances, as outlined by the learned Agents for
the Netherlands and Denmark last week, the equidistance method will in
effect remain the only rule. The Court may have observed that in al1 their
arguments, the Kingdom of Denmark and the Kingdom of the Netherlands
utilized the phrase that it was an accepted rule of international law that any
area of the continental shelf which is nearer to the coast ofa particular State
than to any other coast appertains by right to that State; that is to say that the
coastalState has an ipso juretitle to al1areas which are nearer to some point of
its coast than to any other coast. Since the equidistance method is but the
geometrical expression of such a rule, this means in effect that our opponents
regard the principle of equidistance as being the only rule.
The main arguments of Ouropponents are based on this assumption. First,
the argument that a reservation to Article 4 is inadmissible if it touches the
rule of equidistance, coutd only be maintained under the assumption that
proximity alone is the basis of the right of the coastal State to its continental
shelf.
Second, the argument that the equidistance method isalso binding on third
States which have not ratified the Continental ShelfConvention, could only t>e
maintained under the assumption that proximity is the only rule governing the
allocation of continental shelf areas under general international law.
Third, the argument that a State may unilaterally delimit its continental
shelf by application of the equidistance method validty vis-A-visother States
can only be maintained under the assumption that mere proximity confers a
title under international law.
Fourth, the argument that special circumstances could not exclude the
application of the equidistance method but could only have the effect of
moving the basepoints for the construction of the equidistance line back to
another point can only be maintained under the assumption that proximity is
the only rule governing the delimitation of the continental shelf.
When the learned Agent for the Danish Governrnent at the end of his
address on Friday last-verbatim record, page 161, supra-referred to
the concept of justice underlying the delimitation of the continental shelf
which each State, including the Federal Republic of Germany, should respect,
he specifically mentioned proximity to the nearest State as the concept of
justice which determines the allocation of maritime areas.
Thus, if it cannot be proved that the principle of proxirnity, as understood
by Ouropponents, is the controlling principleas to the alIocation of continental
shelf areas, the whole structure of the arguments of Our opponents breaks
down.
1s the so-called principle of proximity, that is to Say,the ruIe that any area
of the continental shelf which isnearer to some point of the coast of one State
than to the coast of another State appertains by right to the first State, really a
recognized rule of international law?
I do not think that our opponents have been able to prove this. They would REllLY OF PI~OFESSOR JAENICKE 169
have done well to doso because this principle of proximity is the very basis on
which al1their arguments ri:st.
In our Reply, as weIl as in my fii.staddress to this Court, we have already
voiced a strong objection ayainst such a Iegal assumption. May 1 refer in this
respect to paragraphs 56-61 in our Reply, 1,pages 413-415, and to pages
38-39, supra, of the verba.tim record of the public sitting on 24 October.
However, as this seems to be one af the principal issues between the Parties,
1feel that 1am obliged to clealwith this question once again.
Ethas long been an established principle of international law that extension
of sovereignty cannot be founded on mere proximity; I need only refer to the
well-known dictum of Max: Huber in the Palmas arbitration case, where he
said that contiguity as a method of d.eciilingquestions of territorial scivereignty
is wholly lacking in precision and would lead to arbitrary results. The award
can be found in the Reports of hiternotional Arbitral Awards, Volume II,
page 855.
The learned counsel for our opponeilts will, 1 hope, permit me to cite his
own lecture before the Grotius Society in 1950on the legal claims trthe con-
tinental shelf, wherein he said the reasons for refusing to accept bare con-
tinuity as a legal title have not lost an)- of their force. This statement is pub-
Iished in the Transactionsgf'the Grclfius Society,Volume 36, 1950,page 139.
Of course his remarks were meant a,jan argument against the ipso jure title of
any coastal State to the continental shelf before its coast, which later was
accepted by State practice ;and doc1:rine.In any event, however, his remarks
show that he himself at that time i3id not recognize proximity as a reliabIe
basis for the extension of sovereignty. Thus, it seems very doubtful whether
the principle of proximity h,adany rclevance to the delimitation ofcontinental
shelf areas.
When the continental shelf doctrine that each coastal State has an ipso jure
title to the continental shelfl~eforeits coast was recognizedby the International
Law Commission, and later embodied in Article 2 of the Contineiital Shelf
Convention, no indication whatever was manifested that mere proximity was
thought to be the basis of siich a title.
The allegedrule that an area of thi: continental shelfwhich is nearer to some
point of the coast of one State than to aily other coast appertains to that State,
was never mentioned in the discussions of the International Law Commission
on the concept of the contiiiental stielf. Rather, it was the idea that the con-
tinental shelf could be regarded as the continuation of a state's territory into
the sea before its coast that was held to be the basis of thipsojure title of the
coastal State to those areas. There i:;no trace in the discussions of the Inter-
national Law Commission tliat the principle of proximity in the narrow sense,
as understood by our opponents, was an integral part of the concept of the
continental shelf.
To dernonstrate this, it rriay be silfficient to quote the following sentences
from paragraph 8 of the conimentarjr of the International Law Comniission to
Article 68 of its 1956Draft, which la.terbecame Article 2 of the Convention:
"TheCommission doesnot dee~nit necessaryto expatiate on the question
of the nature and legal basis of the sovereign rights attributed to the
coastal State. The consiiieration:;relevant to this matter cannot be reduced
to a single factor."
After referring to other factors, si~chas State practice, self protection and
the need for coastaI installations, :the International Law Commission also
mentioned the geographical factor ifilthi: following words:170 NORTH SEA CONTINENTAL SHELF
"Neither is it possible to disregard the geographical phenornenon, what-
ever the term-propinquity, contiguity,geographical continuity, appur-
tenance or identity-used to define the relationship between the sub-
marine areas in question and the adjacent non-submerged land. All these
considerations of general utility proved a sufficientbasis for the principle
of the sovereign rights of the coastal State as now formulated by the
Commission."
There is no indication that proximity in its narrow sense was the deter-
minant factor among these considerations.
In the discussions of the International Law Commission on the delimitation
problem, there again is no hint that the members of the Commission, in
adopting the equidistance formula, considered it to be merely a geometrical
expression of an alleged principle of general international law, according to
which any area which is nearer to some point of the coast of a State than to
any other coast, should appertain as by right to that State.
At the Geneva Conference in 1958,the equidistance method was not defended
by reference to the principle of proximity. The equidistancemethod was rather
adopted by the delegates with the hope that this method rnight, in normal
geographical situations, lead to an equitableapportionment of the continental
shelf between opposite or adjacent States.
It seemsrather doubtful whether the exception of specialcircumstances could
ever have beenmaintained if mere proximity would already confer a valid title
to areas nearer to some point of the coast. The Court may have observed that
this dilemma necessitated that our opponents interpret the special circum-
stances clause in such a narrow manner that the principle of proxirnity, or the
principle of equidistance, would thereby be safeguarded as far as possible.
1think that 1need not again stress the fact that a recognition of mere prox-
irnity, in the narrow sense as interpreted by our opponents, conferring on a
Statetitle to al1areas nearer to some point of its coast, would very much com-
plicate compromise solutions under equitablepnnciples in areas where delimi-
tation by reliance on mere proximity is inequitabIe on its face.
In their written pleading, the Kingdom of Denmark and the Kingdom of the
Netherlands had recognized that it was the purpose of Article 6 of the Con-
vention to transform the principle of an equitable delimitation into a more
concreteformula. But now it seemsthat they take the viewthat the principle of
proxirnity, and its geometricalexpression, the equidistancemethod, isequitable
pcr se. There is no indication that the members of the International Law
Commission or the delegates at the Geneva Conference wereconvinced that the
equidistance method was equitable per se.
This does not mean that the principle of proximity is without any relevance
to the concept of the continental shelf. Withianarrow belt of continental shelf
before the coast, areas within that belt can certainly be regarded as naturally
connected with the coastal State's territory; but farther from the coast mere
proximity cannot be a sufficientbasis to determine theallocation ofcontinental
shelf areas to a certain State. If two or more States are adjacent to the same
continental shelf, mere distance to some point, or some small part of the coast,
cannot decide the allocation of shelfareas far off-shoreto the one or the other
States.
In my address on 24 October, 1 had announced that we were preparing a
diagram which shows, mile by mile, the effect of minor differencesin distance
from the coast upon the allocation of the areas in the middle of the North Sea.
Thisdiagram, No. 7(sep. 171,infra)of thernapsthat havebeendistributed todayl
lSee No. 46, p. 389,infra.172 NORTH SEA CONTLNENTAL SHELF
to the Members ofthe Court and tothe Parties,requiressomeexplanation. 1shall
in brief expIain what this diagram is meant to show.
The broken lines with arrows pointing to either Denrnark or the Netherlands
show that the areas up to these lines would, under the equidistance rnethod,
have been allotted to the Federal Republic if the base point on the Danish or
Netherlands coast would have been 5, 10 or 15 nautical miles-according to
what is written at the line-more distant from that area than it is now. If you
take, for instance, the line pointing to the Netherlands, which is marked by the
figure 10nmi, that would mean that any point to the right side of this line, any
area to the right of thisline wouId have been aIlotted,under the principIe of
equidistance, to the Federal Republic of Germany, if the base point on the
Netherlands coast would be 10 nautical miles more distant than it is now.
The diagram is meant to show that the diference of more or less 10nautical
miles decides upon the allocation of extensive areas which are situated at a
distance of about 100 nautical miles from the coasts of Denmark, the Federal
Republic, and the NetherIands respectively.This indicates that mere distance
from some point of the coast is not a reliable basis for the allocation of con-
tinental shelfareas to one or the other state. The allocation of continental shelf
areas farther offshore rnustbe determined by criteria other than mere proximity
to some point of a State's coast.
If areas are situated within the coastaI belt, this is a strong indication that
those areas may be regarded as a continuation of the coastal State's territory
into the sea and appertaining to its continental shelf. But the farther off the
coast, the more tkis criterion fades away, and can no longer constitute a con-
vincing basis for the attribution of those areas to the territory of one state.
1think 1need not refer to the absurd results the principle of proximity would
produce if continental shelf exploitation were to extend deeper into the ocean.
The learned Agent for the Netherlands was of the opinion that division of the
oceans is a remote possibility, and that discussions were already going on
excluding such a possibility. However, 1havejust read in an article on United
States legislation relating to the continental shelf published by Mr. Stone in the
Internationaland Comparativ Leaw Qunrterly, Volume 17, 1968, at pages 113-
114, that a concession for the extraction of phosphate had been granted for an
area off the Californian coast which reaches a depth of 4,000 feet.
Therefore, in wider maritime areas, proximity cannot possibly be the test for
the allocation of the continental shelf.
To condude this aspect, 1 respectfully subrnit that the alleged principle of
proximity does not inhere in the concept of the continental shelf, nor does it
govern the delimitation of the continentaI shelf, nor does it confer title to areas
of the continental shelf,
The learned counsel for our opponentshas asserted that a delimitation made
bona fide, in accordance with the equidistance method, is prima facie legally
valid and binding on al1other States, including the Federal Republic. He has
advanced three justifications for his contention, which 1would like to discuss.
The first is the reference to a statement of this Court in the Anglo-Norwegian
Fisheriescase concerning the position of a coastal State in the delimitation of
maritimejurisdiction. In reading that statement 1fail to seeinwhat respect it can
form a basjs for hiscontention. On the contrary, the statement seems rather to
support Our contention that the unilateral delimitation by application of the
equidistance method cannot bind the Federal Republic.
In the statement referred to, this Court has said that the delimitation of sea
areas cannot be dependent merely upon the will of the coastal State, and that REPLY OF PR.OFESSORJAENICKE 173
the validity of the delimitation with :regardto other States depends upon inter-
national law.
Betweenthe Parties inthe presentcase it is indispute whether theequidistance
method is applicable to the deiimit~itionof the continental shelf between the
Parties, and the Court is asked to decide this issue. The validity of the delirni-
tation, therefore, depends on the juclgment of this Court.
Thus I fail to see how this statenieni. in the Fisheriescase can support the
contention of Our opponents that the 'equidistance boundary uiiilaterally
applied by the Kingdom of Denmark and the Kingdom of the Netherlands is
binding on the Federal Repiiblic of (ierinany. Such a contention could only be
maintainedundertheassumption that the principleofproximity,asinterpreted by
Ouropponents, isthe onlyrulewithrespect to theconcept ofthe continental shelf.
Thesecondrationale on whichthelmrariied counselof our opponents attempted
to base the validity of the uriilateral ,delimitation,by application of the equidis-
tance method, is the fact that Article 2 of the Continental SheIf Convention
recognizesthe ipso,jure title lofeach coastal State to the continental shelf before
its Coast.We have already shown that the delimitation of the continental shelf
by equidistance is not inherent in the concept of the continental shelf as em-
bodied in Articles 1 and 2 of the Convention.
Consequently, there is no ipso jure vr~lidityof any deIimitation unilaterally
imposed by a coastal State. Sincea delimitation of a continental shelfboundary
vis-&-visanother coastal State necessarily affectsthe rights of the other coastal
State, there can be no prevailingrighi on the parof the firstState as long as the
other takes the view that ttie de1im:itationby application of the principle of
equidistance is not valid.
Such an opinion would implythat there isa legalpresumption in favuur of the
equidistance method in the !;ensethat the equidistance method is the only rule
applicable unlessanother State showsa better title to the area within the equidis-
tance boundary. The Federal Republic of Germany objects to such a contention
because such a presumption has no foundation in State practice. At the most it
could bemaintained that, if Article 6 of the Convention wereapplicable as a
conventional rule betweenthe Parties, then byvirtue of Article 6,apresumption
in favour of the equidistance method would have to be recognized if two
States are going to delimit their cominon continental shelfboundary.
Be that as it may, such a presumption does not bind the State which is not a
Party to the Convention ancl even if Article 6 were applicable, this u~ould not
give any support against tlieState which disputes the applicability of the
equidistance method. Whether the equidistance method is applicable in the
present case, or whether the particular geographical situation justifies another
boundary line, depends on the appreciation by the Court.
1shall now return to the question whether the equidistance method or the
alleged principle of proximity is a -ruleof customary international law and
therefore binding upon the FederaI F:epublic.
1do not think that it isnecessary i:orepeat here al1the facts and arguments
advanced against the allegüd customary law character of the principle of
proximity or the principle of equidistance, but 1 have to reply tosome of the
new presentations of these arguments advanced in support of such a customary
law status of the equidistance method.
First, in their oral arguments our opponents have repeatedly referred to the
alleged hostility of the Federal Republic of Germany to the Continental Shelf
Convention in general and the equiclistancemethod in particular. The? have
further asserted that the Federal Republic of Germany has aimed at displacing
the equidistance method by isther methods. This is far from the truth.174 NORTH SEA CONTINENTAL SHELF
In our written pleadings,it has ben repeatedly said that the Federal Republic
recognizes the main rules of the Continental Shelf Convention as embodied in
Articles 1-3. The Federal Republic is not hostile towards the equidistance
method in principle, especially in its median line form, and recognizes that,
dependingupon the geographicalsituation, it may veryweilachievean equitable
apportionment in the delimitation of the continental shelf, The Federal Re-
public has applied the equidistancemethod in the delimitation of itscontinental
shelf boundary in the Baltic Sea vis-8-visDenmark.
The Federal Republic, however, does not recognize that the equidistance
methodis the onlyrule, irrespectiveofthenature of theapportionment achieved
by its application, nor does it recognizethat there is a presurnption in iavour of
the equidistance method which would allow a State unilaterally to delimit its
continental shelf vis-à-vis other States by application of that method. The
Federal Republic takes the position that it has to be ascertained by both the
States who wish to deterrnine their common continental shelf boundary,
whether the proposed equidistance boundary apportions an equitable share
to each of them.
Secondly, 1do not think that the learned counselfor our opponents has been
able to prove the formulation of a customary law rule which would oblige a
State to accept the equidistance boundary as the only solution, with some
narrow exceptions as defined by our opponents. His main concern has been to
deduce such a rule from Articles 1 and 2 of the Convention and from the
State practice concerning the delimitation of coastal waters. Learned counsel
has, however, not convincingly shown that there is suflicient State practice
recognizing such a rule. He has very eloquently shown that the States had
acted, as heput it, within the framework of Article6, paragraph 2, or had used
the language of Article 6,paragraph 2. Al1tbis, however, is not sufficientproof
of a recognition by States that the equidistance method is the only rule.
If Statesnegotiate an agreement for the delimitation of their continental shelf
boundaries, one of the Parties would certainly invokethe equidistance method,
while the other might invoke special circumstances, whether the States are
parties to the Continental SheIfConvention or not; if they both agree that the
equidistancemethod willlead toan equitable result they willadopt this method;
if one State invokes special circumstancesthey might agree to take account of
them by altering the boundary line in order to satisfythis demand, They would
certainly come toan agreement only if they areboth convincedthat the equidis-
tance method is equitable to both or that the demand for an adjustment of the
line based on special circumstances has been met.
The cases of the Italian-Yugoslav boundary and the British/Venezuelan
boundary in the Gulf of Paria are signifiant in this respect because they show
that States do not merelyact pursuant to the pretended principle ofproximity or
equidistance but try to agree on a boundary line that apportions a just and
equitable share to each of them.
'I'hereforesuch agreement does not support the contention that there is an
obligation fora State to accept the equidistance boundary if it is not equitable.
The argument of our opponents has shifted somewhat from the agreements
to the unilateral acts of States delimiting their continental shelf. As the leamed
counsel of our opponents expresslysaid, such unilateral acts wodd be the rnost
convincing proof of the acceptance of the equidistance method. However, it
seemsverydoubtful whether the examplescited giveany support in this respect.
Theody relevant casesare Belgiumand Iraqand neither of them, in myopinion,
supports the recognition of the pretended rute of proximity.
In the case of Belgium weare not ready to admit its so-called obvious rele- vance to the issue before the (Court.If'itis correct that the BelgianGovernment
deems it acceptable that the .Belgianportion of the continental shelf should be
determined by application of'the equidistance rnethod, this does not yet prove
that Belgiumaccepts the metliod as the oiilyrule. This is particularly so because
the case of Belgium is not comparable to the case of the Federal Republic.
The Belgiancoast ismainly fslcingGreat Hritain, but not thecentre of the North
Sea; even if one might regarclBelgiurn as a North Sea State to some extent, in
view of its small coastal front vis-&-visthe North Sea, Belgiumprobably does
not want to claim a substantial share of the North Sea continental shelf.
In the case of Iraq, the shstreit would get under the equidistance method in
the Persian Gulf is not disprtiportion;itely small in view of its coastal front. In
any case, there is no indication that Iraq had already taken a final position in
this respect. The map shown in the Cornmon Rejoinder, 1,page 502, which has
been prepared by a Nonvegian expert fortheIraq Government, has not yet led
toan officialact of the Iraq Ciovernmi:ntto the effectthatit accepts the bound-
ary line as shown in that map. Accoriiing to information we have got through
diplomatic channels the Iraq Governriient has not yet taken a final decision in
viewof the proceedings pending in this case.
The learned counselfor oui.opponents relied very heavily on the adoption of
the Continental Shelf Converition andl its ratification by, up to now, 39 States,
the contention being that tl~ereby the principle of proximity embodied in
Article 6 of the Convention liad acquired, in his view, the status ofcustomary
international law.
1 feel that it is no longer useful for me to dwelI on al1the arguments and
counter-arguments with respect to thr: importance of reservations allowed by
Article 12of the Convention to Article 6.The learned counselfor our opponents
has however referred, inter a/ia,to Article 34 of the draft Convention on the
Law of Treaties provisionally adopteci at the Vienna Conference. This Article
States that nothing in the preceding Articles-30 to 33-precludes a rule set
forth in the treaty from becoming biriding upon a third State as a customary
rule of international law.
The learned counsel interpreted thiisArticle to mean that the right of the
State to make a reservation to a certain mIe set forth in the treaty could not
prevent this rule from becorning a rule of customary law. Even if it might be
conceded that the formation of a customary law ruIe outside a law-making
convention cannot be prevented by the fact that the like rule is subject to
reservations in the conventiori, then, however, it is equally true that in such a
case the rule in the convention canncbtcontribute to the formation of such a
customary Iaw rule.
Since, however, Our opponents rely mainly on the Continental Shelf Con-
vention to support their contention tfüit the Convention had contributed to the
establishment of the rule of proximity as a customary law rule, Article 34 of
the Draft Convention on the Law of Treaties is no support for such a con-
tention.
Among the arguments of our opponents, the previous attitude of the Federal
Republic of Gerrnany towards the eqilidistance method has been given much
prominence. I fail to see what legal consequences could follow therefrom. The
legal relevance of the facts cited has, in my opinion, remained unclarified.
Our opponents have not asserted, and they could not haveasserted, that the
Federal Republic of Germany is bound by the Convention. The fact that the
Federal Republic at the Gencva Conference, and later, had not voicedstronger
opposition to Article 6 of the Convention, or the fact that the officiais of the
Federal RepubIic had not foreijeenhow narrowly Article 6, paragraph 2, of the176 NORTH SEA CONTINEN~AL SHELF
Convention might be interpreted by our neighbours, cannot have any reIevance
to the legal issue of the present case.
Our opponents have repeatedly referred to the Partial Boundary Treaties of
1 December 1964and 9 June 1965 between the Federal Republic of Germany
and the Kingdom of the Netherlands and the Kingdom of Denmark respec-
tively.
Our opponents have pointed to the fact that the boundary lines agreed upon
in those treaties follow to some extent the equidistanΠmethod. 1again fail to
see what legal consequences Our opponents wish to infer from the conclusion
of these treaties.
The conclusion of those treaties was accompanied by a reservation of the
Federal Republic of Germany in the form shown in Annex 4, Annex 6 and
Annex 7 to the Memorial of the Federal Republic of Germany. The reservation
stated that the Federal Republic of Gerrnany did not recognize that the prin-
ciple of equidistance would be applicable in the further delimitation of its
continental shelf vis-à-vis the Kingdom of Denmark and the Kingdom of the
Netherlands respectively.
Our opponents pose the question' ofwhy the Federal Republic of Germany
hasnot earlier voicedany objection to theapplication ofthe equidistancemethod
to the delimitation of the continental shelf in the North Sea nor raised any
opposition prior to the negotiations with the Kingdom of Denmark and the
Kingdom of the Netherlands starting in 1964.
The reason for this is quite simple. Up to 1963no North Sea State had, by
forma1executiveor legislativeact, asserted excIusiverights over the continental
shelf ofthe North Sea.Therefore there was no need for the Federal Republic of
Germany to be concerned about the delimitation of its continental shelf
vis-à-vis its neighbours. The Federal Republic of Germany stiI1hoped at that
time that a joint régimefor the exploration of the continental shelf of the North
Sea might be set up by agreement between the North Sea States.
It wasnot before the other North SeaStates beganto assert exclusiverights of
the continental shelf before their coasts and claimed the application of the
equidistance method, that the Federal Republic began to be concerned about
the delimitation. From that timeon, the Federal Republic initiated negotiations
with its neighbours foran equitable settlement on other lines than the equidis-
tance method.
The Proclamation of 20January 1964,to whichour opponents have repeatedly
referred, also does not contain any clause which could be interpreted as a
recognition of the applicability of the equidistance method in the North Sea.
In this context 1 should point to the fact that in the translation given in
Annex 10 A of the Counter-Mernorials the relevant phrase in the German
proclamation of 20 January 1964 isnot quite accurate. The part of the tranç-
lation in Annex 10 A of the Counter-Memorials bcginning with the words:
"The detailed delimitation" does not correspond to the meaning of the German
text. The text correctly translated would read:
"ln the individual casethe delîmitation of the German continental shelf
vis-à-vis the continental shelves of foreign States remains subject to
agreement wjth those States."
The sentence does not imply that only minor corrections of an equidistance
boundary had been contemplated. No reference to Article 6 (2)of the Con-
tinental ShelfConvention or to the equidistancemethod could be inferred from
this sentence in the Proclamation. On the contrary, this sentence rather ex-
presses the view of the Federal Republic of Germany that the delimitation of REPI,Y OF PROFESSORJAENICKE 177
continental shelf boundaries is a matter tobe settled by agreement betweenthe
Parties to this case.
This concludes, Mr. President, my observations on the alleged status of
the principle of proximity and the sta.tusof the equidistance method.
I would now like to proceed to wfiat 1consider the third principal issue of
this case. This is a question of whether or not the equidistance boundaries
claimed by the Kingdom of Denmark and the Kingdom of the Netherlands
are equitable.
In opposition to the contention of Our opponents, who regard the equidis-
tance boundaries as equitable pev se, the Federal Republic maintains that
under general international law theri: is no obligation to accept the equidis-
tance method for the determination of continental shelf boundaries, if such a
boundary does not apportiori a just and equitable share to each of the parties.
Though, in our view, it is incurnbent cinthe Kingdom of Denmark and the
Kingdom of the Netherlands to convince the Court that the proposed equidis-
tance boundaries are equitable. Weha.vedevelopedcriteria, which may provide
the basis for a judgment, a:; to why these equidistance boundaries are not
equitable; we have indicated what the Federal Republic would regard as an
equitable solution.
The legal principle of the just and <:quitableshare which, in our view, is the
basis of the delimitation of continerital shelf areas among States, has been
attacked in principle as wella.swith respect to thecriteria whichwehaveoffered
for the appreciation whether the propose equidistance boundary achieved an
equitable apportionment. Our oppont:nts contend that the principle of the just
and equitable share has no foundatioii in international Iaw and that, tlierefore,
the application of the equidistance method could not be put to the test under
such a principle. The argumei~tsagainst the applicability of the principle of the
just and equitable share to the deliinitation of continental shelf areas are,
1 submit, not convincing. Tliere seerns 1.0be agreement between the Parties
that the delimitation of the continental shelf betweenStates which are adjacent
to the same continental shelf should 1~emade on equitable principles, but the
Parties differ fundamentally about how they define "equitable".
It is Our opponents' contention, and we believe an erroneous contention,
that the principle of proximity isequitableper se, whilethe Federal Republic of
Germany maintains that any delimitation rnust be put to the test wliether it
conforrns to the standards of the just and equitable share. Thus, the Court is
plainly faced with the issue whether tlie principle of proximity or the principle
of the just and equitable shari:should be controlling for the delimitation of the
continental shelf between States adjacent to the same continental shelf.
If you look at the lengthy list of arguments advanced against the priiiciple of
the just and equitable share, by the lear~iedcounsel for Our opponents in his
address on 30 October 1968, verbatiin record, pages 117-118, supra, the first
four points mereiy repeat the well-knciwnargument that the principle of a just
and equitable share would conflict with the principle of proximity. According
to his view,the principle of proximity is the only rule that governs the alloca-
tion of continental shelf areas, therefixe no further recourse could be had to
the principle of the just and t:quitable shire. Since, however, we have tried to
show, the principle of proxirnity is not rhe ooly rule for the delimitation of
continental shelf areas, this argument against the principle of the just and
equitable share loses its force.
TheCourt adfiurned from 4.20 p.m. ro 4.35 p.m. 178 NORTH SEA CONTINENTAL SHELF
When the Court adjourned 1wasjust referring to the different viewpoints of
both Parties regarding the question what would be the controlling principle for
an equitable delimitation. Our opponents contend that the equidistance rnethod
is equitable per se and we contend that the result achieved by the application
of the equidistance method should be put to the test of whether it conforms to
the standard of the just and equitable share.
Learned counsel for Our opponents contended that the application of the
principle of the just and equitable share Ieavesthe realm of the rules and prin-
ciples of international law and would be equivalent to an ad hoc legislating
decision of the Court ex aequo et bono.1might refer to the verbatim record of
30 October 1968,page 118,supra. We strongly object to such an interpretation.
As to the basis and legal quality of the principle of thejust and equitable share,
1 might refer to Chapter 1, paragraphs 29 to 37 of our Memorial, 1, and to
Chapter 1,paragraphs 7 to 16of our Reply, 1.1would like, however, to indicate
very briefly that it would be very cIearly within the Court's cornpetence to
apply this principle.
First, the principle of the just and equitable share follows, in our opinion,
from the concept of the continental shelf by necessary implication. The doc-
trine of the continental shelf, which is now generally recognized as part of
general international law, attributes to each coastal State a portion of the
continental shelf for its excIusive exploitation. The Iearned Agent for the
Govemment of the Netherlands has very aptly show how the submarine
areas of the continental shelf, which formerly, as part of the high seas, were
subject to common use, had, by the development of the continental shelf doc-
trine, been transferred to the exclusivejurisdiction of the coastal States. If there
are several States adjacent to the same continental shelf, this transfer of juris-
diction involves a partitioning arnong those States of areas, and the potential
resources therein, which have accrued to the coastal States from the common
fund of rnankind. The making of such an apportionment implies that the self-
evident principle of the just and equitable share must be given effect. The
necessary criteria willhave to bedeveloped from the concept of the continental
shelf and adapted to the situation of the particular case.
Secondly, the principle of the equitable share had been implicitly recognized
by States in their declarations as wellas in their agreements on the delimitation
of their continental shelves. The principle has also been recognized in the
formulation of Article 6, paragraph 2, of the Continental Shelf Convention.
If a legal provision such as Article 6, paragraph2, contains a rule and at the
same time provides for an exception to this rule under the general notion of
special circumstances, there must necessarily be some higher standard for
judging whether the ruIe or the exception applies. This higher standard could
not possibly be the principle of proximity or equidistance, for it is just to this
principle that exceptions are allowed.
Thirdly, the principle of the just and equitable share is by no means a
principle unknown to international law. The German Memorial referred to the
Helsinki Rules on the Uses of Waters of International Rivers, adopted at the
52nd Conference of the International Law Association on 20 August 1966.
These Rules were published in the Conference Report on the 52nd Conference
of the InternationalLaw Association. Article 4 of these Rules states that each
basin State is entitled, within its territory, to a reasonable and equitable share
in the beneficialuses of the waters oan international drainage basin.1refer in
this respect to the Memorial, 1,page 35.
This Article had been framed by the members of the International Law
Association's Cornmitteeon the Uses of the Waters of International Rivers RE~I,Y OF PROFESSOR JAENICKE 179
unanimously, after nearly ten years of study and discussion, on the basis of
State practice and Iegal doctrine in this fieId. During these deliberations,
nurnerous cases of treaty practice and national judicial decisions had been
examined for the formulatioi~of these RuIes.
The Iearned Agent for the Netherlands Government disputes the relevance
of this paralIel development in international law. He contends that the dis-
tribution of water resources is not comparable with the delimitation of the
continental shelf, because in the division of international water resources the
territorial boundaries rernain unchanged while delirnitation of the continental
sheif involves the drawing of boundiiries. That, however, is not the point of
cornparison. As 1 have already pointed out, in my previous address, the delirni-
tation of continental sheIfareas is in its essence not a rnere extension of sover- .
eignty. It is prirnarila distribution of submarine areas in which eacli coastal
State is given an exclusive i:ight to exploit the potential resources of those
areas. Since the resources of the continerital shelf which have to be distributed
among several adjacent States are as much limited as are the resources of an
international water-basin, the lawis iriboth cases facedwith the sarneproblem,
namely the equitable distribu.tion of such resources. This is al1the more so in
the present case, where what I miglit cal1 the hydro-terrestrial unity of the
North Sea basin calb for the same approach to an analogous problem.
Fourthly, the principle of the just and equitable share is not rnereequity but
it is a principle of law,inasmuch as it directs the States concerned to base their
agreement on the boundary line on criteria whichare taken frorn the concept of
the continental shelf and are applied equally to each of the States concerned.
Applyingthe principle ofthe equitatileshare ta the delimitation of continental
shelf areas is not an excursion into the fieId of legislativediscretion, but it is
the application of the princijile of law. It is an application of the self-evident
notion of justice to a particular legal problem which has arisen in the develop-
ment of the new doctrine of the continental shelf,
1 do not think that the Cclurt, in cirder to employ the principle of the just
and equitable share, rnust have recourse to Article 38, paragraph 1 (c), of its
Statute, although the principle of tht: just and equitable share is certainly a
principIe in the sense of Article 38, piirasaph 1 (cj.
1 have already said that the generally recognized continental shelf doctrine
conferring the seabed and subsoil of tireasunder the high seas to the exclusive
jurisdiction and use of the co:istal Staitesirnpliesequitable apportionment, and
that the principIe of thejust and equita.bleshare has, moreover, been recognized
by State practice as wellas bythe forrnulation of Article 6, paragraph 2, of the
Continental ShelfConvention. Therefcire,1respectfully submit that the appIica-
tion of the pnncipIe of the just:and equitahle share doesnot necessitaterecourse
to Article 38, paragraph 1 (cj,but is rather an interpretation of existitig law,
This is not judicial legislation,as the learned counsel for our opponents has
called it. It is rather the transformation of a general pnnciple of Iaw into
criteria applicable to the particdar situation.
May 1refer in this context to the Fi::heriescase wherethis Court had applied
general principles of law and adapted them to the particular situation. I would
like to quote from the Judgment of tliis Court in the Fisheriescase a passage
which is published in the I.C.J. Reports 1951, page 132:
"It does not at a11follaw that, in the absence of rules having the techni-
ca1Iyprecise character alleged by the United Kingdom Government, the
delimitation undertaken by the Norwegian Governrnent in 1935 is not
subject to certain principles which make it possible to judge as to its
validity under internatiorial Iaw." 180 NORTH SEA CONTINENTALSHELF
And after some subsequent sentences,it continues:
"In this connection, certain basic considerations inherent in the nature
of the territorial sea, bring to light certain criteria which, though not
entirely precise, can provide courts with an adequate basis for their
decisions, which can be adapted to the diverse facts in question."
It would seem that the present case might very well be decided along these
lines of judicial reasoning.
If wehave to apply the principle of ajust and equitable share to the delimita-
tion of the continental shelf in the North Sea we need criteria for determining
. the equitableness of the share which should be allotted to each coastal State.
Our opponents contend that the principle of the just and equitable share is
unworkable since it does not entai1criteria for such appreciation. They contend t
further that the criteria we have offered were artificial,without any foundation
in the actual geographical situation. Despite their strong criticism we still
maintain that these criteria are by no means artificial but may be deduced by
logicaI operation from the concept of the continental shelf, with a view to the
particular geographical situation in the North Sea.
Criteria for the equitable apportionment of the continental shelf of the
North Sea must be founded on the special geography of this region.
The boundaries already agreed upon between Great Britain, Norway,
Denmark and the Netherlands indicate already the pattern of apportionment
which has been regarded as equitable by those States. They would certainly
not have delimited their continental shelves by those Iines if they had not re-
garded them as equitable. The delimitation effected thereby has led, in this
part of the North Sea, to the formation of three sectors-the British sector, the
Nonvegian sector and the third sector comprising the yet undelimited con-
tinental shelves of the Parties to this case.
As is already explained in Our written pleadings, the Federal Republic of
Germany maintains that the most equitable apportionment of the remaining
third sector of the continental shelf would consist of the delimitation by sub-
sectors or, if you prefer to avoid geometrical inferences, by sector-like slices
among the Parties. Such a delimitation would be consistent with the general
pattern of delimitation manifested in that part of the North Sea which is sur-
rounded by Great Britain, Norway, Denrnark, the Federai Republic and the
Netherlands.
At this point 1 would like to make it clear that the boundary lines claimed
by the Federal Republic, under the principle of the just and equitable share,
start from the end points of the partial boundary lineswhich have already been
agreed upon between the FederaI Republic and the Kingdom of Denmark and
the Kingdom of the Netherlands respectively. This sector claimed does not
quite correspond with the hypothetical sector which might be constructed on
the end points of the territorial sea frontiers between the Parties. It does not
correspond with such a sector whichwouldhave been, in Ourview,the equitable
apportionment which the Federal Republic might have claimed prior to the
agreements upon the partial boundaries. In any case, however, the present
claim of the Federal Republic of Germany iswithin the limits of such an equit-
able sector. What constitutes the claim of the Federal Republic of Germany
has already been indicated in paragraph 91, figure 21, of the Memorial, 1,
pages 85-86, and, for the convenience of the Court, has been more precisely
delineated in map No. 6 (see p. 182, infra) which has been distributed today
to the Members of the Court and to the Parties. REPLY OF PRCIFESSORJAENICKE 181
1 submit that this apporticmment i!iequitable on its face. We have tried to
show that there are also objective criteria which determine the equitableness of
such a delimitation of the continental shelf. These criteria are pertinent to the
geographical situation and are in harrnony with the concept of the continental
shelf.
While our opponents apparently do not deny the equity of a division by
sectors of a circular area, thr:ir main objection against the appIication of the
sector concept has been that in the North Sea there is no ascertainable centre
from which to draw the boundary lines for such sectors. 1 shalI try to show
that there is a central area in the Norih Sea which may safely be considered to
be its centre, at least with regard to tliat part of the North Sea where the deli-
mitation of the continental slielf between the Parties is in issue.
To show this 1would like ti, refetosoine of the maps wehave prepared and
distributed in response to questions of Judge Jessupl. These are the maps
Nos. 1,2, 3 and 4 on your table. These maps need specificcomment.
MapNo. 1(seep. 183,infra)isdrawninrespo thefolowingquestionposed
by Judge Jessup: Assume hypotheti8:ally that in 1960 or 1961 the United
Kingdom andthe Federal Republic ol Germany agreed to specify and delimit
a boundary between their respective parts of the continental shelf in the North
Sea in accordance with Article 6, paragrilph 1, of the Geneva Convention on
the Continental Shelf-what would be the median line between the two
States?
On map No. 1the broken 'lineshows the median line between the coasts of
the Federal Republic of Gerrnany and Great Britain based on the hypothesis
that the coasts of Denmark and of the Netherlands would have been disre-
garded, as if these countries did not ex:ist.i need not stress the point that we did
not negotiate such an agreement and we would not have negotiated an agree-
ment with Great Britain on siich a boiindary, which would ignore the rights of
her neighbours. This map is only meant to show what is the line where the
territories of both countries continuing into the North Sea, if viewed in isola-
tion, would meet each other.
Themap No, 2(see p. 184,itfra) isaIsodrawn inresponseto asimilar question
posed by Judge Jessup concerriingthe rnedian line betweenthe Federal RepubIic
of Germany and Nonvay. The punctuated line on map No. 2 shows the median
line between the coast of Norway and the coast of the Federal Republic based
on the hypothesis that no other coast vrouldhave to be taken into account, as if
other countries did not exist. Again 1 need not stress the point that this isa
hypothetical line. We did not negotiale and we would not have negotiated an
agreement on such a bû~ndiiq without consideration of the rights of Our
neighbours.
This map is only meant to show whiit wouId be the line where the territories
of both countries continuing into the :North Sea, if viewedin isolation, would
meet each other.
To demonstrate al1 the wossible rriedian line situations. we have further
prepared map No. 3(seep. 185,infi-a)wbichshows the hypothetical rnetlianline
between the coast of Norwav and the coast of the NetherIands. The dotted
line on rnap No. 3 shows whérethis rriedianline between the Netherlands and
Norway would be.
Now, if you project these rhree hypotlietical median lines shown on maps
Nos, 1, 2and 3 on a map that shows the actual median lines, that have already
ken agreed upon between the remaining North Sea States, the result is shown
on map No. 4 (see p. 187, infia). wcluldsuggest that this projection permits
us to draw some important inferences.
See No. 46, p. 389,infra.182 NORTH SEA CONTINENTALSHELFREPLYOF PRC~FESSOJAEN~CKE 183NORTH SEACONTINENTAL SHELFREPL!{OFPROFESSORJAENICKE 185186 NORTH SEA CONTINENTALSHELF
First, al1these median lines meet each other within a very small area, so that
it may well besaid that this area may be characterized as the centre of that part
of the North Sea which is surrounded by Great Britain, Norway, Denmark,
the Netherlands and the Federal Republic. We need not have, in order to dis-
tribute the continental shelf area in that part of the North Sea equitably, an
exact geometrical point constitutingthe centre of a geometric circle. For the
appreciation of the equitableness of such a distribution, it is suficient to have
an approximate centre.
Second, the median lines between the coast of the Federal Republic, on the
one hand, and the coast of Great Britain and Norway, on the otherhand, show
that theterritory of theFederal Republiccontinues to this part of theNorth Sea,
or, in other words, up to this line the coast of theFederal RepubliofGerrnany
is as near to the British coast as the coast of Denmark and the Netherlands.
Up to this line the territory of the Federal Republic of Germany is no less
geographically connected with that area of the continental shelf than are the
territories of Denmark or Norway. This underlines the cut-off effect of the
equidistance boundaries, as proposed by Denmark and the Netherlands.
Third, this network of median lines further shows that it is not an arbitrary
assurnption, but rather a true application of the continental shelf concept to
this particular geographical situation that the continental shelves of Great
Britain, Norway, Denmark, the Federal Republic and the Netherlands ex-
tending from their respective coasts into the enclosed sea converge into each
other.
On the ground that there is a real centre in that part of theor thSea where
the continental shelves of the five States converge into each other, it seems
legitimate to start from that centreinorder to achieve an equitable apportion-
ment of the continental shelf among the three Parties. As the centre is not an
exact point, it is certainly modest, as far as the Federal Republic's share is
concerned, to start from the point indicated in map No. 4. This point is equi-
distant to Denmark and the Netherlands and at the sarne time equidistant
between Denmark, the Netherlands and Great Britain. Such a delimitation is
a geometrical consequence of the convergence of the continental shelves of the
three Parties into that part of the North Sea.
To support our view that such a sectoral division of the south-eastern part
of the North Sea is not only equitable by geometrical construction, but also
follows from the concept of the continental shelf, we proposed the so-called
coastal front, or coastalfaçadeapproach, which had beenso severelyattacked
by Our opponents.
The Iearned agent for the Kingdom of the Netherlands has called the coastal
front a wholly arbitrary line, unspecifiedas to its location and unknown to the
principles or rules of international law. This is found in the verbatim record
of 31 October, pages 136-137,supra. This attack is unjustified.
We have introduced the coastal front concept as a criterion for determining
the breadth of the continental shelf which extends from the territory of each
coastal State into the sea, We use the coastal front to determine what area of
the continental shelf before the coast might be regarded as a natural contin-
uation ofa State'sterritoryintothe sea in the particular geographical situation.
As 1 have already pointed out, in my address on 24 October, the coastal
front concept used for this purpose has nothing to do with straight baselines. It
is neither a straight baseline, as it is understood in connection with the delirni-
tation of territorial waters, nor is it a straight baseline as it is used for the con-
struction of equidistance boundaries under Article 6, paragraph 2, of the
Continental Shelf Convention. The coastal front is different in character from188 NORTH SEA CONTINEMAL SHELF
these baselines,becauseno distance is measured fromthat line. Rather, it shows
the breadth and the direction into which the continental shelf of each State
extends into the sea.
If the coastal front is understood in this senseto define the breadth of, and
the direction into which the territory of the coastaI State continues into the sea,
it becomes necessary to deterrnine the location of the coastal front. This is
necessarybecauseit is obviousthat the coastal front line determinesthe direction
into which the continental shelf extends into the sea and determines, at the
same time, in continental shelf areas surrounded by several States, the converg-
ing points of the different continental shelves. We are thus confronted with
the question of what should be regarded as a coastal front in that particular
geographical situation.
In the simple case of two or three States lying on a straight coastline which
faces the open sea, the continuation of each State's territory into the sea is
represented by stretches of continental shelf parallel to each other extending
into the sea. The basis is a straight line whichrepresents the generaldirection of
the coastline. Demonstrating this, I would refer to figure 1 in Our Reply, 1,
page 427, which shows the ideal case of a perfectly straight coastiine.
If the coastline is cnrved, as showin figure 2 in our Reply,1,page 427, the
coastal front, which determines the breadth of the territories extending into the
sea, could not be measured by the length af the actual coastlines, or located
along the actual coastline which is projectiag or curving back. Nor could the
basis from which the continental shelf of each State extends into the sea be
determined otherwise than by reference to the general direction of the coast.
As figures 2 and 3 in our Reply, 1,pages 427 and 428, show, the direction of
the continental shelfextending into the sea couId not possibly be determined by
the changing direction of a curvingcoast. By the way, "the general direction of
the coast" is a term not unknown to maritime law.
In the special situation of the North Sea, however, we are in the presence of
converging continental shelves, because the three Parties and other North Sea
States do not face an open sea, but rather surround an enclosed continental
sheIf.If wewant to determine what isthe continuation of each State'sterritory,
in such a case, we again have to disregard the actual coastline, whether project-
ing or curving back. Wehave to use the coastal front of each State for determin-
ingthe basis from whichthe continental shelvesof the three States continue into
the sea, gradually converging into each other.
Wehaveprepared and distributed a diagrarn-map No. 5 (seep. 189, infra)-of
thesituation in the south-eastern part of the North Sea, which shows what we
understand to be the coastal frontof each State and whatwe understand to be
the natural continuation of each State's territory into the North Sea. This
diagram needs explanation.
The parallels before each coastal front indicate the direction in which the
territory of each State extendinto the sea. The overlap of the paratlels indicates
where the continental shelves converge into each other. 1have ta explain how
the line representing the coastal front had beendetermined.
If the continental shelf area which is apportioned between the surrounding
States has a centre, as in the North Sea, it seernstobelegitimate to define the
coastal front of these States as the line which represents the breadth of its wast
facing the centre. if we had no centre, we wouId have to take the general
direction of the coastline of these States facing the continental shelf area which
is to be distributed.
In the case of the south-eastern part of the North Sea, fortunately, we can
definethe coastal front of each State,startingfromthe centre, or by proceedingREPLY OFPRO.FESSORJAEMCKE 189190 NORTH SEACONTINENTALSHELF
from the coastline. The result reached by using either of these two methods
isnot materially different.
Map No. 5 shows the coastal fronts of each of the three States, from which
the continental shelf ofeach of them convergestowards the other. Again,1 have
to stressthepoint that this line used for the location of the continentalfronts of
Germany or of our neighbour States, is not an arbitrary line. Thecoastalfronts
of our neighbour States follow closely the general direction of their coasts.
Any turn in the direction of the coastal fiont, towards the east, in the case of
Denmark, or towards the south in the case of the Netherlands, wouId have
changed the convergence in such a manner that it would no longer coincide
with the approximatecentre of the North Sea.
In map No. 5we have taken the followingpointsfor determining the coastal
frontline of each State: Point No. 1three nautical miles off Bovbjerg, point
No. 2 three nautical miles off Sylt North, point No. 3 three nautical miles off
Borkum West-not offthe Hohe Riff but off Borkum West-and point No. 4
three nautical miles off Terschelling West.
The coastal fronts so chosen'are facing the centre of the North Sea, justas
the Borkum-Sylt line does in the case of the Federal Republic of Germany. It
cannot be said that the coastalfronts thus chosen are unfair to our neighbours.
We cannot accept that these coastal fronts have been chosen arbitrarily. They
correspond to the geographical situation prevailing in that part of the Noah
Sea.
In this coptext, 1should again stress the point that the coastalfroisnot to
be ageometricalbaselineonthe basisofwhich boundaries should beconstructed.
The coastal front has in this context only the function of dehing in the most
plausible and ostensible way the basis from which the continental shelves
converge into each other where a continental shelf area is surrounded by
several States.
Since a coastal front in this sense not only expressesthe breadth of the basis
of the continental shelf ofeach State extending into the sea, but aasdirection
into which these continental shelvesconverge, the configuration of each State's
coast is immaterial in this respectThe breadth of the territory extending into
the sea cannot beinfluenced in any way by the configuration of the actual
coastline.
The Borkum-Sylt line-the line between the end points of the Danish-
German and Netherlands-German frontier, taking not the whole of it but
Borkum West as the point of departure-is nothing more than a line indicating
the breadth of the basis of the German continental shelf and the direction in
which the German continental shelf extends towards the centre of the North
Sea.Thebreadth of that front cannot be influencedby the fact that the German
coastline curves back behind that line.
Suppose the German coastline would not curve back, but, on the contrary,
would partly project beyond the Borkum-Sylt line, that would not in any way
influence the breadth of the basis or the direction of the German continental
shelf. You could, without changing the concept, take another of the parallels in
front of or behind the Borkum-Sylt line to define breadth and direction of the
coastal front.
To conclude my explanation of the coastal front approach, 1 would again
iike to makeit clear that the coastal front concept only has the function of
expressing the dimension of the continuation of a State's territory into the
continental sheif before its coast.
In order to offea criterionfor the detemination of the equitableness of the
delimitation of the North Sea continental shelf, and in order to show that the sector clairned by the Federi11Republic of Gerrnanisnot only geométricaIly
equitable, but also equitable:under a quantitative standard of evaluarion, we
submit the following considc:rations.
If you would care to take a look at the diagrarn in map No. 5, 1shall try to
explain what this diagram is meant to show..
We start from the basis that each State's territory continues into the sea with
a breadth represented by iti; coastal fronIn terms of area covered by this
continuation, the extent of the con1inuationImay then be geornetrically ex-
pressed by a stretch of area covered by the parallels following each other from
the coastal front towards the cen01the North Sea,and enclosed between two
lines which are constructed at the end points of the coastalfront, perpendicular
to the coastal front. These stretches of area, representing the continuation of
each State's territory into the sea, converge into each other because of the
concave coastline. As map No. 5 shows, thestretches of each State overlap
each other. This indicates that the area where they overlap rnay be considered
tobe the continuation of boîh States' tei-ritories.It séemsequitable that those
areas must be divided between both States in equal parts, becauseeach of them
shares title to those areas wixh the other States.
In order to get a quantitative criterion, half of such an area rnay be attributed
in square kilometres to each of the two States. Such areas are those which in
map No. 5are rnarked bythe letters1)$ G and N + G, meaning Chatin those
areas the extension of the territory into the sea of Denmark and Germany, or
the NetherIands and Gerrnany, respc:ctively,overlap each other: the figures
-- + G and D + G indicate that withn rhoseareas each of the two States rnay
2 2
claim half of the sbare of thai area as bei~igpart of the continuation of its coast
into the sea.
Further on to the centre, tlie stretclies of al1three States overlap each other.
That indicates that witllin those areas, which in map No. 5 are marked by the
letters D + G + N, each of the three States rnay clairn that those areas con-
stitute a continuation of its tirrritory, Wereit seems equitable thaofethe
States rnay claim only one-third of the area, because it shares its title to those
areas with two other States.
If you then collate what, for exanlple, the Federal Republic of Gerrnany
could claim in square ki1ome:tresof the areas covered by the extension of its
territory into thesea,we corne to a quantitative result in square kilometres
which rnay showwhether the ares claiined by the Federal RepubIicof Germany
corresponds to the geographical situation.
We have for this purpose to add up the square kilometres shownon al1these
parts. Thesquare kilometres in the parts rnarked G, and G, are parts which are
to be considered as belanging or appzrtainingtothe Federal Republic alone,
therefore, the square kilometres indicthe total plane area within thparts.
The square kilometres indicated in the other parts are already one-half or
one-third of the area shown on this rriap.
If you then add up these figures and compare the result with the square
kilometres covered by the sector the Fi:dei-alRepublic of Germany claims as an
equitable share, these figures do not differ very much.
If we add up the square kilornetre-.shown on diagram .5the result will be
about 36,000 square kilometres, whili: the sector clairned by the Federal Re-
public would comprise 36,70(1square kilometres.
We do not contend that this methcid rnay be used to determine the square
kilometres each coastal Statr: rnay claim under any scheme of delimitation
applicable between the Parties. We do not contend that this method rnaybe the 192 NORTH SEA CONTINENTAL SHELF
basis of a claim to specificareas. This rnethod may, however, provide us with a
quantitativecriterionas to whether the share which is allotteto a State under
the proposed scherne of delimitation is equitable or not.
The criteria which we have offered arenot arbitrarilychosen to support the
claim of the Federal Republic of Germany to a certain size of area of the con-
tinental shelf. They have been developed from the concept of the continental
' shelf in ~iewof that particular geographical situation where an enclosed con-
tinental shelf arehas to be apportioned arnong several adjacent States.
The criteria we have offered should not be taken as criteria generally appli-
cable in al1geographical situations. They have been offered as an additional
indication of the equitableness of the sector delimitation.
MI thiswas meant to show that by using criteria which may be developed
from the concept of the continental shelf and which are pertinent to the partic-
ular geographical situation, the principle of the just and equitableshare can be
transformed into an appropriate standard for thejudgment of the equitableness
of a proposed scheme of delimitation of the continental shelf.
TheCourt rose at 5.45p.m. AEPLY OF PROFESSOR ODA
TENTH PUEILICHEAKING (5 XI 68, 10a.m.)
Present:[See hearing of 23 X 68.1
ProfessorJAENICKE: Mi- P.resident, 1wouldlikevery muchto givemylearn-
edcolleague ProfessorOdatheopportuniry toexplainhiscoastalfaçadeapproach
to the Judges, and to rnake :;orneadtlitional remarks on certain State practice.
REPLY OF F'ROFESFORODA
COUNSEL FOR THE GOVERNMENT CiFTHE FEDERAL REPUBLIC OF GERMANY
Professor ODA: Mr. President aind Members of the Court, today, may 1
expand the façade approach which :introduced before the Court during my
last address. Judge Sir Geralii Fitanaurice, on the third day of the oral hearing,
rernarked that 1 had not indicated exactly how 1 would draw the lines of
demarcation from each end of the baselineif this baseline weredrawn between
the Island of Sylt and the Island of Iiorkum.
It is quite true t1ahadrtot proweded so far in rnyprevious address. What
1 attempted the other day was to denionstrate that the application of the
equidistance rnethod, as prcivided fcir iii Article 6 of the Convention on the
Continental Shelf, could lead.to pro@-essiveinequitable resultsas the distance
frorn the coast increases. When 1 rnentioned the equidistance method, 1 was
referring to the utilization i~fequidistance points rneasured frorn the actual
coastal configuration, excepl where, .under Article 4 of the Convention on the
Territorial Sea and the Contiguous Zone, straight baselines may be employed.
In delimiting the Iateral boundaries betweenthe adjacent States whichextend
no farther than the territorial sea and the contiguous zone, the equidistance
method can, in some cases, lead tcs certain inequitable results by adhering
closelyto the actual configur;itionof i:hecoasts concerned. This does not, how-
ever, have serious consequences, since the territoriaI sea, after all, is raereIy
narrow belt before the coast, and since the outer limit of the contiguous zone
does not extend to more than 12 rni.lesfrorn the coastline. Furthermore, the
lateral boundary of the territorial sea and the contiguous zone is not greatly
relevant to the exclusiveexploitation of the resources by the coastal States, but
is primarily relevant to the regulation of navigation by the coastal States. Tfthe
right of foreign vesselsto innocent p.assagethrough these waters is taken into
account, there is even less significance to the lateral delimitation of these
coastal maritime areas among the adjacent, States. For these reasons, an
inequitable result produced 'bythe application of the equidistance rriethod is
minirnized. A lateral line drawn between the respective States, reaching no
farther than the relatively narrow belt composed of the territorial seas or the
contiguous zone, doesnot pozea major problemfor the coastalStatesconcemed.
A far more crucial probIam, howl-ver, is presented in delirniting the con-
tinental shelf because such division r~:suItsin the apportionment of very large
areas at great distance from the coast. With sucha delimitation task in rnind,
the coastline at low tide carinot have the same decisive effect but slioulbe
brought into proper perspective to makeit possible that each adjacent State
receives a just and equitable jhare of the continental shelf. The coastal façade,
as Ienvisageit, representsaviewtaken of a State'scoastal front with the intent
of placing itin the proper perspective in relation to the coastal front of its
neighbouring States. Such a ~>erspectivwould lead to a division graniing each194 NORTH SEA CONTINENTAL SHELF
State ajust and equitable share. In order to visualizesucha façade, one should be
guided by the general direction of the coast; in some particular cases, the most
useful course would beto take the whole coastline of a country as constituting
an entity.
In rny previous address 1 referred to the map shown in the Common Re-
joinder, I, page 470, in order to indicate just one example of what might
constitute a coastal façade determined by the particular shape of the German
coast. 1would like to make clear, at the same time, that the lines shown on this
map, in so far as they refer to the Kingdom of Denmark and the Kingdom of
the Netherlands, do not represent a correct delineation of a façade. With
respect to the latter countries, their façades can easbevisualized on the basis
of the general direction of their respective coasts. If one determines the proper
façades of the three countries bordering the southeastern part of the North Sea
pursuant to the criteria I have suggested, the continuation of each State's
respective territory will converge in the North Sea.
In this connection I feel that it might be pertinent to note the rationale
underlying the decision of this Court in the Norwegian Fisheriescase, The
Court said:
"Where a coast is deeply indented and cut into, as is that of Eastern
Finnmark, ... the base-line becomes independent of the low-water mark,
and can only be determined by means of a geometrical construction. In
such circumstances the line of the low-water mark can no longer be put
forward as a rule requiring the coastline to be followedin al1its sinuosities.
Nor can onecharacterizeasexceptions totherule the verymany derogations
which would be necessitated by such a rugged coast :the rule would dis-
appear under the exceptions. Such acoast, viewedas a whole, callsfor the
application of a different method; that is, the method of base-lines which,
within reasonable iimits, may depart from the physical line of the coast."
(I.C.J. Reports 1951, pp. 128-129.)
With this judgment in mind, the International Law Commission considered
the concept of the straight baseline. In his 1952report, the special rapporteur,
Professor François, stated :
«s'il s'agit d'une côte profondémentdécoupéed'indentations ou d'échan-
crures,... la ligne de base sedétachede lalaissede bassemer,etlaméthode
des lignesde base reliant despoints appropriésde lacôte doit êtreadmisen.
(Yearbookof the InternationalLaw Commission,1952, Vol. II, p. 32.)
In his 1954report, Professor François further suggested that:
«En général la longueur maximumadmissible pour une «ligne de base
droite» sera de 10milles.))(Ibid., 1954,Vol. II, p. 3.)
With some minor modifications the International Law Commission adopted
the proposal of the special rapporteur in its report of 1954.The International
Law Commission, in 1955,made a further modification by setting up a IO-mile
limitation for the length of the straight baseline. This was done because some
countries, in commenting upon the 1954 International Law Commission's
report, were of the view that the 10-milelength was arbitrary and not justified
by the opinion of this Court in the Norwegian Fisheriescase, Thus, the final
draft by the International Law Commission in 1956stated:
"Where circumstances necessitate a special régime because the coast is
deeplyindented orcut into ,.. the baselinemaybeindependent of the low-
water mark. In these cases, the method of straight baselinesjoiningappro-
priate points may be ernployed." (Ibid., 1956, Vol. II,p. 257.) REPLY OF I~ROFESSORODA 195
With regard to these provhiions, the International Law Commission, in its
comments, said :
"The Commissioninterpreted .theCourt'sjudgment, whichwas delivered
on the point in question by a m,zjorityof 10 votes to 2, as expressing the
'law in force; it accordiiqglydralled the article on the basis of this judg-
ment." (Ibid p. 267.)
At the Geneva Conference on the Law of the Sea in 1958,most States gave
support to the concept. For instance, the delegatefroma Scandinavian country
made a statement to the effei:tthat:
"The system of straight baselines had great practical advantageswher-
ever the coastline was i~identedor irregular... the Iength of the straight
baseline. ..shall not exceed ten miles. ..the system of straight baselines
should not beconsidered as a 'special régime ' ..but rather as the normal
method of delimitation where geographical conditions rendered it appIi-
cable." (UnitedNations Conferen.ceantheLaw of the Sea, Oficial Records,
Vol. III, p. 5.)
For the sake of brevity, 1 would here restrict myself to quoting the revised
United Kingdom proposa1which stai:esin part:
"In localities where the coastline as a whole is deeply indented and cut
into ...the method of !;traight :baselinesjoining appropriate points may
be employed in drawing the btlseiine from which the territoriaI sea is
measured" (ibid., p. 228:).
This proposa1was adopted by a vote of 47 infavour, 5 against, with 12absten-
tions, at the meeting of the first comrnittee of the Conference, 10miles having
been extended in the debate to 15milm. A further development occurred at the
plenary meeting where the Canadian delegate proposed that the reference to
the restriction of the straight base1int:-1.5 miles-be dropped on the grounds
that the restriction was neither necessary nor desirable. The attempts made by
other States to retain a limi~ation wi:re unsuccessful. The end result was the
wording of ArticIe 4, paragraph 1, asfthe Convention on the Territorial Sea
and the Contiguous Zone, atlopted by a vote of 63 in favour, 8 against, with
8 abstentions.
In surnmary, the concept of a straight baseline was intended for the purpose
of delimiting the territorial sea. Fina.lly, there was a tendency to restrict the
application of this concept to distances not exceeding 10 or 15 miles; in the
course of the deliberations of the Geneva Conference on the Law of the Sea,
this limitation was not retained.
It may be suggested that this entire concept and its subsequent development
mayserve as a bridge towards my coriceptof a coastal façade. This façade line
is a macrogeographical vievipoint which is a further abstraction from the
microgeographical viewpoint. The Iatter consists in the drawing of the linear
coastline as, for example, is envisaged in the concept of the straight baseline,
whereas the façade theory involves a further abstraction from the actual
coastal configuration and, therefore, should be characterized as a macrogeo-
graphical viewpoint .
At this point 1suggest that it might be useful if 1were to attempt to explain
how and to what extent the tkrust of my argumentdeviates from that of
Professor Jaenicke and to undertine t'heissues on which 1have taken a some-
what more personal viewpoint as a !;cholar, As may have become apparent
from the written Pleadings submitted by the Federal Republic and the previous196 NORTH SEA CONTINENTAL SHELF
oral arguments advanced by Professor Jaenicke, the approaches emphasized
by him of necessity tend to deal with solutions which include a concept of an
over-al1 central area in the North Sea, which he suggested is specificallyap-
plicable to the special situation in the North Sea. On the other hand, in the
approach that 1 have suggested, 1 am primarily concerned with the over-all
characterization of the coastlines concerned, the directions in which they face,
and the conclusions which can be drawn from this façade.
My façade approach, if 1 rnay so cal1 it, is primarily designed to find a
solution which may be applied also in other geographical situations. 1 am not
so much concerned with what scheme of delimitation rnight be based on such
a coastalfaçade asI have envisagedit. 1rnightonlyaddthat evenif the principle
of proximity which Our opponents favour so much would be applied to that
façade for constructing boundaries, the German share of the continental shelf
in the North Sea would be considerably bigger than it would beas delirnited by
the equidistance boundaries proposed by the Kingdom of Denmark and the
Kingdom of the Netherlands. 1hope that Thave shown that the fundamental
featureof rny solution is the concept of adjacency adapted to the wider dimen-
sions of the continental shelf concept. I must stress, however,that satisfactory
conclusions can only be drawn from the concept of adjacency if in the proper
cases the ernployment of the concept of a coastal façade is viewedas a prereq-
uisite. In thisconnection1would liketo refer to the rnap in the Danish Counter-
Mernorial, 1, page 200, which shows a hypothetical case which has several
times been referred to by the learned agent for the Kingdom of Denmark, as
for example, on page 145, supra, of the verbatim record of the seventh dayand
on page 161,supra, of the verbatim record of the eighth day. Perhaps the bound-
ary shown on that map is not unreasonable nor is the share allocated to
Middleland inequitable in comparison to each of the shares of Leftland and
Rightland respectively. However, this illustration has no relevance to the
German situation since, in contrast to the latter, the hypothetical Middleland
has no justification for claiming that the façade approach would alter the
situation because al1the three hypothetical adjacent countries are almost ona
straight line.
Now 1would like, if 1 may, to reiterate the point 1made during my previous
address to the Court, namely that the solution based on the coastal façade
concept is submitted to the Court simplyas one of the possible ways of defining
ajust equitable apportionment of the continental shelfarnong the States of the
North Sea.
Having addressed myself to one of the questions which had been posed by
Judge Sir Gerald Fitmaurice in order to develop and clarify my concept of the
coastal façade, I would now like to turn to some observations which I feel are
called for by the address of the learned counsel for Ouropponents.
An important point in this case, and one which I had dealt with in rny
previous address, is the fact that the equidistance method has widely differing
results dependent upon whether it is applied to dernarcation boundaries at
close distances near the Coast or to boundaries extending for long distances
offshore. In this connection 1 had tried to demonstrate that the committee of
experts of the International Law Commission, at the time when it first intro-
duced the concept of equidistance, mainly had in mind the application of this
rnethod within territorial seas. A strong indication of this is that the committee
of experts stated that they were concerned with the "practical difficultiesof the
navigator" (citation at p. 57, supra, of the verbatim record of the third day).
This observation about the interests of the navigator is primarily pertinent to
the boundaries of territorialseas. Learned counsel for our opponents, in his REPLY OF :PROFESS ODRA 197
address to this Court, dwelt on thi:; report of the committee of experts. In
contrast to my viewpoint, however, Sir Humphrey Waldock emphasized the
contention that there is no real distinction with regard to the applicability of
the equidistance rnethod between the territorial seas and wider maritime areas
beyond them. 1refer to page 98, supr4a,of the verbatim record of the fifth day.
In the opinion of the learned coiinsel the principle of propinquity is the
primary and general principle for the partitioning of the continental shelf.
Learned counsel alleged, at page 101, supra, of the verbatim record of the fifth
day, that the Federal RepubIic was not consistentin theattitude it took towards
the applicability of the equidistance method since, eyen though it now vehe-
mently denies the value of this rneth.od,it nevertheless concluded treaties on
partial boundaries with the ;Kingdoniof Denmark, on the one hand, and the
Kingdom of the Netherlands on thi: other hand. These partial boundaries,
referred to by Sir Humphrey Waldock, terminate on points on the equidistance
line. 1think, however, that tfiereis no inconsistency whatsoever in the position
taken by the Federal Repulilic of Ciermany. The Federal Republic made it
quite clear in the negotiation!;leading to the conclusion of these partial bound-
arytreaties that it did not acc'rptthe equitlistanceline as theappropriate demar-
cation of the continental shi:lf beyorid the points just mentionedIfany in-
ference at al1 can be drawri frorn i:he existence of these partial boundary
treaties, it is that the Federal Republiicupheld a sharp distinction between the
application of the equidistaiice method to short distances offshore, and its
application to greater areaof the cclntinental shelf farther off the coast.
1would like to address myself to the position maintained by our opponents
that the equidistance principle is not only explicitly stated in Article 6 of the
Convention on the continental shelf, but is aIso inherently contained in Arti-
cles 1and 2 of this Convention. 1givethe exact wording of the learned counsel
for Our opponents at page 95, supra, of the verbatim record of the fifth day:
"... we have ernphasized the logical and legal linkwhich existsbetween
the equidistance principle prescribed in Article 6 and the recognition in
Articles 1 and 2 of the coastal Sitate'sexclusive righipsojure over the
continental shelf adjacent to its coast".
1must say that 1 strongly disagree with this opinionI would consider that
Article 1 of this Convention on the Coritinental Shelf is only definitionain
purpose and content and has no independent normative function. Asfor Arti-
cle 2. it discusses and circumi~cribesthe concept of the continental shelf itself.
This concept of the continental shelf, howeveriwas developed far prior to any
introduction of the eciuidistai~cernettiod and it is therefo1submit. impos-
sible to infer that a reference to the general concept of the continental shelf, as
contained in Article2, must inherently indude the principle of equidistance.
It should be pointed out, rnoreover, that the Convention on the Continental
Shelf of 1958does not, even in its entirety, present a complete solution to the
entire range of problems inhe:rentinthe concept of the continental shelf. For
one thing, a crucial questiori has nc4 yet been settled-what are the outer
limits of the continental shelf towarcls the open sea? The issue of the outer
boundaries of the shelf has now becorne rd crucial importance in deaIing with
the resources of the deep sea.
In this connection, may 1cite the Court some of the recent resolutions passed
by the United Nations in relation ta. these resources: Econornic and Social
Council resolutian 1112 (XI.,of 7 March1966, on non-agricultutal resources;
General Assembly resolution 2172 (X:ICI)of 6 December 1966on resources of
the sea and General Assemblyresolutii~n2340@XII) of 18 December 1967,on198 NORTH SEACONTINENTAL SHELF
examination of the question of the reservation exclusivelyfor peacefulpurposes
of the seabed and the ocean floor and the subsoil thereof, underlying the high
seas beyond the lirnit of present national jurisdiction and the uses of their
resources in the interest of rnankind.
All these three resolutions deal with the exploitation of sea resources and the
first and third resolutions especiallywereadopted to deal with the properuseof
the sea resources beyond the continental shelf. In al1the discussions which led
to these afore-mentioned resolutions, and were subsequent to them, it was
quite evident that the delimitation of the outer boundary of the continental
shelf plays a very important role.
During the deiiberations of the United Nations Ad Hoc Committee to Study
the Peaceful Uses of the Seabed and the Ocean FIoor Beyond the Limits of
National Jurisdiction, established by General AssemblyResolution 2340(XXII)
of 1967,the attention of the Committee wasdrawnto the fact that the definition
of the outer boundary of the continental shelf, as provided for in Article 1',is
still uncertain.
- In accordance with the provisions of Article 13 of the Geneva Convention
on the Continental Shelf, a revision of this Convention may take place at any
time after the expiration of the five-year period following ratification. This
period of time ends during the next year.
Al1these considerations, 1 submit, make it quite evident that it is not pos-
sible to speak of the continental shelf concept as an already fixed or com-
pleted concept. It cannot, therefore, be asserted that Articles 1,2 and 6 present
a complete picture of the continental shelf, containing, as inherently necessary,
any specifictechnical method dealing with it.
1 feelthat it is appropriate at this point to turn to the questionof what iegai
principles determine the apportionment of the continental shelfin the North
Sea. Learned counsel for our opponents has maintained that the prirnary and
general rule on which the delimitation has to be made is the equidistance
method, and he attempted to justify this position by clairningthat this method
has the status of a rule of customary international law, citing as proof therefor
the declaratory nature of the provisions of the Convention on the Continental
Sheifas wellasthe Convention on the Territorial Sea andthe Contiguous Zone,
and the Convention on Fishing and Conservation of the Living Resources of
the High Sea, al1of which were adopted at the Geneva Conference on the Law
of the Sea in 1958. Furthermore, he regarded the acceptance of the equidis-
tance principle in the afore-mentioned Conventions as an element in the
formative process of customary international law. Sir Humphrey Waldock
alieged that the Federal Republic of Gerrnany did not make any objections to
these dispositions during the Geneva Conference of 1958. May I quote his
remarks on page 96, supra, of the verbatirn record of the fifth day:
"Equally, there is no trace that we have found in the records of the Con-
ference of the Federal Republic's having opposed the incorporation of the
equidistance principle in Articles 12 or 24 of the Territorial Sea Conven-
tion, or in Article 7, paragraph 5, of the Fishing and Conservation Con-
vention."
This statement by the Iearned counsel does not seem to be entirely correct as
far as the Geneva Fisheries Convention is concerned.
Article 7 of the Convention on Fishing and Conservation of the Living
Resources of the High Sea was adopted by a vote of 34 in favour, 20 against
and 5 abstentions at the Third Cornmittee of the Conference. The Federal
Republic of Germany was among the States opposing the adoption, together RIZPLY OF IPROFESOR ODA 199
with Japan, the United Kindgom, France, Italy andSweden.Sincethe vote was
not taken by means of a rollcall, the names of the voting States are not re-
corded in the official documents. However, may 1 cite the Court the two-
volume comrnentary on the four Geneva Conventions on the Law of the Sea
which Professor Yokota and 1 publ.ishedin Japanese in 1959 under the title
The InteriiationalLaw of th(Sea. 1 have therein, in Volume Il, on page 99,
stated that my personal notc:staken at the Conference indicate that the coun-
tries 1havejust enurnerated voted agerinstArticle 7 of the FisheriesConvention.
Furtherrnore, the Federal liepublic of Gerrnany, for other reasons, voted
against this Fisheries Conveiition as a whole at the plenary sessi111fact the
final vote on the Convention on Fishing and Conservation of the Living
Resources of the High Sea was 45 lin favour, 1 against with 18 abstentions.
The Federal RepubIic of Germany cast the only vote against the Convention.
This Convention, therefore, cannot lie cted as proof for the proposition that
the Federal Republic acquie~cedby silence to the equidistance rnethod during
the Geneva Conference.
I have now dealt with th(: argument of the learned counsel for our oppo-
nents regarding the importance of the CienevaConventions for the formation
of alleged customary rule o:Fequidistance.
Learned counsel for our opponerlts further referred to the State practice
subsequent to the Geneva Conference as evidencefor the formative process of
custornary law. 1 do not fin.dmyseliîin agreement with him on some of the
cases he cited as evidence in this connection. For exarnple, let me come to our
discussion on the oil concession griinted by the Kuwaiti Government. Our
opponents, in the map printt:d in the Common-Rejoinder, 1,page 580, demon-
strated the boundaries of the oil coricession granted by the Kuwaiti Govern-
ment to the Shell Oil Company, and stressed the fact that the boundaries of
this concession correspond to the equidistance line. In my previous address 1
tried to show, in contrast, that these concession boundaries were not yet final.
May 1 develop the reasons ïor this contention a little further?
If we here disregard questions of private law, it is evident that the Kuwaiti
Government itself does not regard the boundary of the Shell concession as
final. Earlier the same Government, acting with respect to its half interest in
the neutral zone between Kuwait antl Saudi Arabia, had granted a concession
dealing rnainlywith the area before the Coastof the neutral zone to the Arabian
Oil Company. The delimitation of thij concessionisnot definitivelyregulated in
the concession because the other State Iiaving an interest in the neutral zone,
Saudi Arabia, had also given a concession over the same general area of the
continental shelfbefore the toast of ihe neutral zone to the same oil company.
Both Governments, however, were niot in agreement as to the Iateral bound-
aries of the concession. Asa result cifthese non-identical concessionsgranted
by the two competent States,the northern boundary of the prior concession to
the Arabian OiICompany is likely to be at variance with the subsequent con-
cession to the SheIl Oil Company. II:seems that the Kuwaiti Government, in
itsdealings with the two oil companjes, affirmsboth concessions. Under these
circiimstances, 1 think 1 can repeat that we are not entitled to regard as final
these boundaries which were cited .as an example of the application of the
equidistance lineas shown i.nthe Common-Rejoinder, 1,page 580.
May 1now corneto another point, ~iamelythe problem ofapplyingthe generaI
principles of law recognized by civilizednations to this case.
In my first address, 1subniitted the concIusion that in the absence afcon-
vention or rule of customary law, whichcalb for the mandatory application of
the equidistance rnethod, thr: Court ~ihouldrender its decision based upon the200 NORTH SEA CONTINENTALSHELF
principle of just and equitable apportionment in reliance on Article 38, para-
graph 1 (c),of the Statute of the Court. It is true that neither the Permanent
Court of International Justice nor this Court have yet explicitlytaken recourse
to this provision of the Statute. However, it can well be maintained that the
Court has, in the past on numerous occasions, seen fit to apply the general
concept of justice and equity. It has referred to the general principles, the
recognized principle of law, etc.1submit therefore that the Court has employed
this provision of the Statute impllcitly. Our reliance on Article 38,paragraph 1
{c), does not imply a request that in this case a decisiontranscending the do-
main of strict law be reached.
The general principles of law recognized by civilized nations within the
meaning of Article 38 are fundamental elements of estabIished international
law. A decision founded upon general principles of law recognized by al1
civilized nations is, therefore, a decision founded on lawand can never trans-
gress the domain of a statement of binding law. In contrast, a decision ex
aequoet bonomay be handed out even in opposition to the existing legalnorms.
For this reason both Parties must agree explicitly, according to Article 38,
paragraph 2, to a solution based on this standard. We have not, however, in
the present case, asked the Court, in our submissions, to render a decision
which goes beyond the limits of positive law. Ttis a proper practice to refer to
the general principles of Iaw supplying a legal basis if Article 38, paragraphs 1
(a)and (b), namely treaty law or customary law, cannot be applied.
Among civilizednations, the principlethat justness and equitableness governs
the sharing of the common interest is followed by the domestic courts as a
recognizedsource of Iawwhichexistsin addition to statutory or customary law.
May 1 quote from the individual opinion of the late Judge Hudson in the
Waterfrom theMeuse case which the Permanent Court of International Justice
decided in 1937:
"Article 38 of the Statute expressly directs the application of 'general
principles of law recognized by civilized nations', and in more than one
nation principles of equity have an established place in the legal system.
The Court's recognition of equity as a part of international law is in no
way restricted by the special power conferred upon it 'to decide a case
ex aequo et bono, if the parties agree thereto'." (P.C.I.J., SeriesAIE,
No. 70, p. 76.)
This Court has often re.ferredto the "general concept oflaw", the "general
principle of law", "general and well-recognized principles" and "well-estab-
lished and generally recognized principles oflaw", and other expressions of a
likenature, without mentioning Article 38, paragraph 1 (b), or Article 38,
paragraph 1 (c).May 1cite some cases: thePolish Upper Silesia case, P.C.I.J.,
Series A, No. 6, the Lotus case, P.C.I.J., Series A, No. 10, pages 16-17; the
ChorzdwFactory case, P.C.I.J., Series A, No. 17, page 29; the Corfu Channel
case, I.C.J. Reports 1949, page 22; the Right ofPassage case, I.C.J. Reports
1957,pages 141-142.
1 think that we can conclude from this discussion that the Court set the
so-called natural law of nations on an equal footing with positive international
law, treaty law or customary law. Adrnittedly, according to the priorities
enumerated in Article 38 of the Statute, this natural law of nations has to yield
to treaty law or customary law. The equidistance rnethod has not become
binding upon the Federal Republic of Germany, either by virtue of treaty law
or by virtue of custornary law.
1 have respectfully submitted to the Court that recourse to Article 38, REPLY OF PROFESSORODA 201
paragraph 1 (c),should be regarded as one possible solution. Ipointed out,
however,in my firstaddress, that 1am.not attempting tocircumscribethe Court's
discretion in arriving at othw possible solutions.
When 1 expressed my doubt that there is customaty law which is applicable
to this case, 1 did not deny thereby that there'are generally accepted rules and
principles of international 1,aw.Quii:e to the contrary, we can find the legal
solution to this case in the principle that equitable apportionment among the
adjacent States may be achieved.
Let me corne to the conclusion of my argument. It is not my intention to
criticize and underestimate the great value of the work done by the Inter-
national Law Commission and the GrenevaConference on the Law of the Sea.
It is, however, necessary to look at the provisions of the Convention in their
right perspective. During the discussion in Geneva, the United Kingdom, in the
Fourth Cornmittee, made the propo:jal to determine the boundary of the ad-
jacent States on the principle of equidistance, in the absence of agreement,
without any regard for special circurnstances. (United Nations Conferenceon
the Law of the Sea, Oficial Records, Vol.VI, p. 134.)During the discussion on
this proposal, which was later withdrawn, the delegate of the Netherlands, the
late Admiral Mouton, said that agreement between the States concerned must
be the corner-stone of the article (ibid.p.96).
We are not asking the Cclurt for iidecision on what boundaries should be
drawn, but we are asking for guidance on what principles should be applicable
sothat the Federal Republic of Gerrrianycould corneto an agreement with the
adjacent States.
1am of the opinion that even if wi:take the Convention on the Continental
Shelfas the basis, amicable agreement should beregarded asthe most desirable
rnanner of delimiting the continental shelf boundary among the adjacent
States. The Convention does not offer bwidelinesfor such an agreement, but
certainly agreement takes precedeno: over the application of the method of
equidistance. There is no doubt that the principle of just and equitable share
should be a deterrnining factor among the Parties seeking agreement.
The equidistance method tloes hav,: a function, but it is subordinated to the
higher principle of equitable appor1:ionment. 1 respectfully submit that the
real intent of the Convention on the ClonïinentalShelfhas that orientation. The
concept of equitable apporticlnment of the continental shelfdoes not necessarily
assure an automatic or an casy solution, but it can provide a guideline for
negotiation or for arbitratiori, which might possibly be resorted to. For settle-
ment of their disputes, the States conczrned rnayrely on the method of equidis-
tance or maychoose criteria rnore appropriate to a particular coastal situation.
The ultimate and general principles which govern an agreement between the
parties,or an arbitral solution, rnust always bethe expression of justice and
equity.
Mr. President, this concludes rny address and 1 would like to express my
gratitude for the Court's indulgence in hearing rny argument.
REPLY OF PROFESSOR JAENICKE
AGENT FOR THE GOVERNMENT OF TH13FEDERAL REPUBLIC OF GERMANY
ProfessorJAENICKE:Mr. Presideritand MembersoftheCourt,incontinuing
my address, in this second phase of the axa1argument, 1shall deal in this last
part with the eventual application of the special circurnstances clause.
1would like to begin with some greliminary observations on the legal ap-202 NORTH SEA CONTINENTAL SHELF
proach which wuld be followed in the interpretation and application of the
special circumstances exception.
The Parties are in agreement that Article 6, paragraph 2, of the Convention
does not bind the Federal Republic of Germany under treaty law. The Parties
differ, however, as to what principles govern the relations between the Parties
in the delimitation of their respective continental shelves in the absence of
treaty law applicable between them. According to the view of the Federal
Republic, the principle of the just and equitable share determines whether a
proposed boundary line must be accepted. Inthe evaluation of what constitutes
an equitable share, the particular geogtaphical situation will be an important
element, and no specific authority is therefore necessary ta take account of
particular geographical facts in this case.
According to the view of the Kingdom of Denmark and the Kingdom of the
Netherlands, Article 6, paragraph 2,has becorne a part of general international
law binding on the Federal Republic of Germany. If this be true, then the
question arises whether the particular geographical situation in this case is
within the realm of the special circurnstances exception.
Passingjudgment on the question whether and to what extent the particular
geographical situation rnay be taken into account under the clause, we again
have the choice of two fundamentally different approaches.
One approach might be to follow the rigid rule of equidistance and to limit
exceptions of this rule to questions of basepoints.
The other approach might beto interpret the clause ina wider sense in order
to leavethe door open todo justice in individual cases. It is the latter approach
1would advocate as appropriate, having in mind the purposes of Article 6 of
the Convention.
Mr. President, and Membersof the Court, the learned Agent for the Danish
Governrnent has said that the Federal Republic of Germany, in its Memorial,
hadnot invoked the special circumstances clauseand had done so only later on
in the Reply. He intimated to the Court that it might therefore be inferred
therefrom that the Federal Republic of Germany was not very confident that a
case of speciai circumstances could be made out, and therefore it only half-
heartedly invoked the special circurnstances clause at a later stage of the
proceedings.
This interpretation of Our written pleadingç arises €rom the erroneous
assumption that Article 6, paragraph 2, of the Continental ShelfConvention is
applicable between the Parties. The Court, 1 presume, is well aware that the
Federal RepubIichas,inits Memorial, taken the viewthat Article 6,paragraph 2,
of the Convention is not applicable among the Parties. Therefore, the Federal
Republic obviously could not rely on that clause. This expIains then, very
logically I hope, why the Federal Republic of Germany did not invoke the
special circumstances clause in its Memorial. We had, however, at that time
already referred to the particular geographical situation existing in that part of
the North Sea. 1should 1iketo quote from our Memorial, 1, page 74:
"The enclosure of the coast of a State by projected parts of the coastç
of the two neighbour States to the left and to the right hasa cumulative
geometric effect; at a relatively short distance frorn the coast the two
equidistance lines intersect, thereby cutting off the inside coast from the
highsea.The diagrams (figures17,18,page 73)demonstratethis geometrical
consequence veryclearly."
Since, however, the Kingdom of Denrnark and the Kingdom of the Nether-
lands, in their Counter-Memorials, contended that Article 6, paragraph 2, of REF'LY OF PIIOFI~SSORJAENICKE 203
the Continental Shelf Convt:ntion, or its equivalent, the so-called equidistance-
special circumstances rule, was bind.ingon tlie FederaI Republic of Germany,
the latter had reason to invoke the special circumstances clausein the event that
the Court approved of the arguments of our opponents.
Thus, the Federal Reputilic invoked the special circumstances clause as a
subsidiary defence against i:hesubmissions of the Kingdorn of Denmark and
the Kingdom of the Netherlands at the right time and in the right place. Any
inference that the Federal Republic ;tctedhalf-heartedly and belatedly, without
enough confidence to base its casr: on the special circumstances clause, is
without foundation.
In its Reply, the Federal Republic of Germany has maintained that the
North Sea presents'a special case because it covers a single continental shelf
surrounded by severalState:;,and thr Federal Republic has further maintained
that such a geographical situation niight cal1for special solutions, in order to
arrive at an equitable apportionment.
In the Reply, the Federal Republic had already more explicitly pointed to
the cornbined effect which both equidistant boundaries would have on the size
of the Federal Republic's share of the continental shelf.
The Federal Republic has referred to the rectangular bend in the Danish-
Gerrnan-Netherlands coastline that causes both equidistance lines to meet
before the German coast, tliereby rr:duçing the Federal Republic's share to a
disproportionatefy srnall part compared to the shares of the other North Sea
States. A glance at the map will make this plain to any observer, and it is the
view of the Federal Reputilic that such a geographical situation is special
enough to come within the ineaning of the special circumstances clause.
This view has been further elaborated in my address on 24 October, where
I said, at page 51, supra, of the vesbatim record of this day, that the cut-off
effect with respect to extensive areas before the German coast has to be re-
garded as a special circumst;incewitlun the meaning of Article 6, paragraph 2,
of the Convention. Thus, 1 féel,it is perfectly clear what the Federal Republic
regards as a special circurnstance in the present case. There has been no half-
heartedness in this regard.
Our opponents contend that this cut-off effect could not be regarded as a
special circumstance in the sense of Article 6 (2). They deny this for several
reasons.
First, they interpret this clause sanarrowIythat only insignificant islands or
peninsulas could perhaps be considel-edas a case of special circumstances.
Second, they contend that the bciundary lines, based on the equidistance
method, between Denmark and the Federal Republic, and also between the
Netherlands and the Federal Republic, should be viewedseparately sothat the
combined effect of both boundaries i:ould not be taken into account.
Third, they assert that the Danish as well as the Netherlands' part of the
continental shelf, within its equidistanceboundaries, is perfectlynormal, sothat
it would beunjustified to enlarge the Federal Republic'sshare at the expenseof
its neighbours.
Now as for the interpretation of the special circumstances clause, I do not
think that I should again go intothe rnatter after the arguments 1have already
advanced against such a nai'rowinte:rpretation in my address on 24 October.
However, one point in the argument of the learned Agent for the Danish
Government needs specific comment..
The learned Agent for the Kingdom of Denrnark took issue with the wider
interpretation advocated by the Federal Republic, on the ground that such an
interpretation would deprive the equidistance method described in Article 6(2)204 NORTH SEA CONTINENTAL SHELF
of any effect if a State could object to the application of the equidistance
method as inequitable under its subjective notion of what constitutes a just
and equitable share. You may find that on page 144, supra, of the verbatim
record of 31 October 1968.
1 respectfully submit that this is not the right perspective from which one
should regard the matter. Surely,the appreciation as to whether there are special
circumstances justifying another boundary line does not depend on the sub-
jective view of one of the States concerned, but depends, rather, on objective
criteria. But ifthe two States differ as to whether there are special circum-
stances or not, in the sense of Article 6, paragraph 2, this matter must then be
decided by arbitration.
It cannot be said that the one State which wants to relqon the equidistance
method has a better legal position than the other which invokes specialcircurn-
stances. It depends on the objective criteria applicable to the case whether the
particular geographicaIsituation isto beconsidered a specialcircurnstancewith-
in the meaning of Article 6, paragraph 2.
The reasoning of our opponents amounts to the thesis that the principle of the
just and equitable share could not be made the test for the presence of special
circumstances, because this wouId lead to uncertainty.
I do not think that this isa convincing argumentagainst a widerscope of
application of the special circumstances clause.
The application of the special circumstances clause necessarily involves an
appreciation of the result of the application of the equidistance rnethod. Such a
margin of uncertainty is unavoidable because the clause does not specifically
define what are special circumstances in the sense of Article 6, paragraph 2.
The learned Agent for the Danish Government admits that even under the
narrow interpretation given by him to the special circumstances clause the
clause would have to be invoked fairly often because of the presence of numer-
ous insignificantislandsal1overthe world; but what are thecriteria fordetermin-
ing whether an island is insignificant and whether such an insignificant island
should be disregarded and under what circumstances? In al1 these cases an
appreciation has to be made as to whether the presence of a particular jsland, if
taken into account in the construction of the equidistanceline, would lead to an
apportionment which seems inequitable to one of the Parties. If wejust take
the exampleof figureE, in the Common Rejoinder, 1,page 533, whyshould this
srnallisland not betaken into account? Would the case be the same ifthis island
was situated nearer to the coast, thereby causing a smaller deviation of the
equidistance line?
Obviously in al1these cases an appreciation has to be made whether the area
of the continental shelf, which bythe presenceofsuch an island willbe allocated
to the other State, assumes such dimensions that the apportionment of the
continental shelf between the two States becomes inequitable.
1 do not see what else could be taken as a basis for such an appreciation.
Furthermore, what size would the island haveto be in order that it no longer be
regarded asinsignificant,so that the diversion of the equidistance line caused by
the presence of that island must be accepted by the other State, although its
effect would be of just the same magnitude as that caused by an insignificant
island?
Take the world of scatteredislands inthe PacificOcean-on what linesshould
the continental shelf be delirnited inthisregion? Al1these questions show that
even under the narrow interpretation of the speciai circumstances clause
advocated by our opponentsonecannot dispense with an appreciation whether
the taking into account of such a geographical fact is equitable or not. REPLY OF PP.OFESSO JAENICKE 205
Therefore, 1 submit, it is no valid argument against the wider interpretation
advocated by us that the application of the clause would necessitatean appre-
ciation as to the equitableness ofthe result caused by the equidistance method.
The Federal Republic of Germany maintains that the special circumstances
clause has a much wider scope of application. According to the opinion of the
Federal Republic it is the piirpose of the special circumstances clauseto avoid
that the application of the ecluidistancernethod leads to inequitable resuIts, and
the scope of the application of the equidistance method must therefore be
defined with a view to that purpose of the clause.
In this context 1 should mention that the clause was not inserted into the
Convention, as the learned Agent for the Danish Governrnent has asserted, at a
later stage to provide agairist hardship caused by the rigid application of the
equidistance method; rather the cotribination of the equidistance method with
the special circumstances clause wa5 regarded by the members of the Inter-
national Law Commission as a necessai-yprerequisite for the adoption of the
equidistance method.
If Article 6 (2) prescribes, as Ouropponents contend, the principle ofproxi-
mity to be the rule, but aLthe sanie time, Article 6 (2) provides for general
exceptions to this rule under the heading of special circumstances; if a
legal provision contains a rule and at the same time providcs for a
general exception to this rule, there mu:;tnecessarily be some higher standard
for deciding whether the rule or the:exception applies. It would be a logical
contradiction to define the cases whe:reihe rule of proximity should not apply
by standards of proximity.
We must look for the higher standard which permeates the legal provision as
a whole, namely the rule plus its e:iception. The Federal Republic is of the
opinion that there is such a higher :standard, which governs the provision of
Article 6. This standard is, accordirig to Our view, the principle of equitable
apportionment.
This standard can be ascertained by looking to State practice as well as to
the discussions and deliberations that preceded the adoption of Article 6; even
our opponents admit that it was the purpose of the provision contained in
Article 6 to transform the ideas of etluitable principles into a legal formula. It
does not seem necessary for this purpose to prove that the principle of the just
and the equitable share is a general principle of law in the sense of Article 38,
paragraph 1 (c), of the Statute of the Court.
To interpret Article 6 (2), it is sulficient to know what was the aim of the
authors of Article 6 and the purpose of Article 6asformulated bythem tosatisfy
the dernands of equitable apportionrnent.
1would like to elaborate on this point a little further.
The Court aajburnedfrom 11.20 a.ni.ta 11.40am.
When the Court adjourned I was just about to elaborate on the point how
the principle of equitable apportionrrient could bemade the basis for the judg-
ment, whether there are special circumstances in the sense of the clause.
Our opponents contend tliat the application of the principle of a just and
equitable share would be alien to th'sfield of the law of the continental shelf
and would conflict with treaty Iaw. Equitable apportionment, however, is the
legal essence of the equidistance-special circumstances rule. The relationship
between rule and exception inust be interpreted in the light of the purposes of
Article 6, of the purpose to achieve an equitable result. We are here on
safer ground than in the field of genc:ralinternational law. Adopting the stan-206 NORTH SEA CONTINENTALSHELF
dards of equitable apportionment is interpretation of treaty law, not judicial
rule making.
We are ali aware of the changing concept of international law which mani-
fests itself not only in the substance of the rules but also in the interpretation of
these rules. The so-called functional interpretation has paved the way, in con-
trast to the orthodox interpretation due to the jurisprudence of this Court and
due to the work of eminent scholars in this field of Iaw, to mention only the
late Judge Lauterpacht.
1 would like to refer in this context to the French reservation to Article 6
of the Continental Shelf Convention. It seems that France shares the legal
position taken by the Federal Republic of Germany that under the special
circumstances clause, not only insignifiant islands or peninsulas, but also the
macrogeographical situation of a country may furnish a sufficientground for
invoking the special circumstances clause. As the wording of the reservation
shows, France regards the geographical position of its Atlantic coast in the
Bay ofBiscay, which is flanked on both sides by other countries, as a case of
special circumstances. In an article by France de Hartingh on "La position
française à l'égardde la convention de Genève sur le plateau continental",
published in the Annuaire français de droit international 1965, at page 728,
those macrogeographical factors which might divert the equidistance boundary
farther offthe coast in such a way as to "enclaver" the French continental shelf
were specificallyreferred to.
The special circumstances clausedoes not contain any specificcriteria that
must be taken into account in the appreciation of whether there is a case of
special circumstances.This decision of the authors of Article 6 of the Continen-
tal Shelf Convention was very wise, sinceno rigid formula of delimitation can
be found that wouId be applicable under al1circumstances.
Jt is not possible to establish particular specificcriteria as to the application
of the special circumstances clausesince its motivation was to provide a pro-
cedure whereby consideration could be givento the particular elements of each
case. Therefore, determination whether, in a particular geographical situation,
special circumstances are present, can only be made with a view to the under-
lying idea which is to provide for a just and equitable apportionment under al1
circumstances.
When we keep this in mind, we may be in a better position to understand
why it is hardly possible to deterrnine the manner of application of the special
circumstances clause from the examples provided by State practice and by
legal writers. The clause must rather be interpreted and applied to each indi-
vidual case with a view to its purpose to achievea just and equitable result.
We have asked the Court to appreciate the special factors prevailing in the
present case.This does not, therefore, mean that we request the Court to make
an ad hoc decision but rather to interpret and to apply the special circum-
stances nile to the concrete situation.
What do we regard to be the special circumstance in the present case? It is
the rectangular bend in the Danish-German-Netherlands coastline which
causes both equidistance lines to meet before the German coast, thereby, if 1
might use this word, "enclaving" the continental shelfof the Federal Republic.
As the combined effectofthe two equidistance lineson the sizeof theGerman
share caused by the rectangular bend of the Danish-German-Netherlands
coastline cannot be denied, our opponents, therefore,tryto spliup the evalua-
tion process. They contend that the appreciation of the equitableness or the
normality of the equidistance boundary between the Federal Republic of
Germany and the Kingdom of Denmark and the Kingdom of the Netheriands REPLYOF PROFESSOR JAE~ICKE 207
respectively can only be made with a view to the part of the coastline to the
right and to the left:of the boundary. No regard shouId be paid to the macro-
geographical situation as a whole. Cibviouslythis cannot be done.
The learned Agent for the Danish ~Governmentrelied on a statement 1made
in my address on 24 Octobe.r,when 1 referred to the hypothetical case where
both Denmark and Germany face an open sea to the Westas if there was no
bend in the Gerrnan coastline and as if the Netherlands coast did not exist,
1 said that in such a case, a.ndonly in such a case, the equidistance line con-
structed on such a Danish-German coastline might be characterized as normal
and equitable. The latter wcluld also be the case in the hypothetical situation
which assumesthat the coastline of the Netherlands and the Federal Republic
would face an open sea to the north 3sif there was no rectangular bend in the
German coastline and as if Denmark: did not exist. 1said that in such a case,
and onfy in such a case, the equid:istance boundary constructed on such a
Netherlands-German coastliriernight be characterized as normal and equitable.
It was perfectly clear from the context in which 1presented these two hypo-
thetical cases that 1 wanted to show thereby that, only under the assumption
that these countries were alone in the:world, the normality of the equidistance
boundary could be rnaintain1:d.It isperfectly clear, furtherrnore, that such an
isolated viewof each coastline does not correspond to the geographical reality.
In the case now before the Court whether the equidistance boundaries be-
tween Denmark and the Fedcraf Republic and betweenthe Netherlands and the
Federal RepubIic are just anclequitable can only beevaluated by examining the
effecteach of those boundaries has oii the size of the Federal Republic'sshare.
If therewere only a small belt of continental shelf before the coasts of Den-
mark, the Federal Republic .andthe 'Netherlands, itwould probably be legiti-
mate and sufficient to judge the eqluitableness of the boundary line by ex-
amining the relatively small area deliinited thereby. In such a case the equidis-
tance boundary would perhaps even 'beregarded as equitable. But if the equi-
distance boundary reaches fa.rout in1.othe sea it affects the apportionment of
extensive submarine areas and the evaluation of the effects of the proposed
boundary cannot be restricted to the Iocal configuration of the coast. The
whole geographical situation around the continental shelf that is to be appor-
tioned has to be taken into account. That is what 1would liketo cal1the macro-
geographical perspective.
It is a fact of geography that the liend in the Danish-German-Netherlands
coastline causes the equidistance linesto ~neetbefore the coast of Gerrnany and
thereby to cut offthe Gerrnan share lofthe continental shelf from the areas in
the middle of the North Sea. Bach of the two equidistance boundaries con-
structed on the Danish-German-Nethedandscoastline contributes to this
result.
The existence of this cut-off effect cannot be denied by asserting that be-
tween Denmark and the Fedi:ral Repirblic only one of the equidistance bound-
aries is in dispute, and, mirfafis mutandis between the Netherlands and the
Federal Republic only the equidistance Iioundary between these two States is
in dispute, and that therefore the effects of suahboundary on the apportion-
ment in general are irrelevani:.
While it is true that the Court wo~~id have to pass judgment on the equit-
ableness of the particular boundary line, either between the Federal Republic
and the Kingdom of Denmark, or the Kingdom of the Netherlands and the
Federal Republic, in the appreciatio~iof the equitableness, it must take into
account al1effects caused by this line..
The extent to which the rnacrogeographical perspective mustbe used depends208 NORTH SEA CONTINENTALSHELF
on the size of the continental shelf areas to be apportioned arnong the States.
We think that the geographical situation in which the equidistance method
causes such cut-off effects constitutes a case of special circumstances and we
leave it to the appreciation of the Court whether we are right in this respect.
1 again refer to the demonstration of the cut-ORelfect of the two equidis-
tance boirndaries shown in our Reply, 1,pages 428 and 430.
Our opponents deny the existence of such a cut-off effect by contending that
the location and configuration of the German coastline is caused by nature or
history, and that therefore the consequenceshave to be accepted as such by the
Federal Republic of Germany. That again is tantamount to saying that ap-
portionment on the principle of proximity isequitable per se. The appreciation
whether the Federal Republic's share is equitable in cornparison with those of
its neighbours must depend on a basis of a standard higher than that of mere
proximity.
The Federal Republic maintains that this basis should be the principle of the
just and equitable share applied to the particular geographical situation. It
depends very much on the size and the extension of the continental shelf area
to be apportioned between the several adjacent States whether only the local
or the macrogeographical situation has to be considered.
If-may 1 repeat that again-the delimitation in the North Sea were confined
to a narrow coastal belt of the continental shelf, the appreciation whether the
Federal Republic share would be equitable, would not lead to the same result
as in the situation in the present case where the seabedof the whole North Sea
has to beapportioned amongst the adjacent States. We have already demon-
strated that under the particular rnacrogeographical situation in the North Sea
a division by sectors amongst the adjacent States is the equitable apportion-
ment.
Judged on this basis, the cut-off effect of the two equidistance lines con-
structed on the Danish-German-Netherlands coast and its result on the size of
the FederalRepublic's share could not be regardedas equitable. Consequently,
another boundary line must be sought which would neutralize the cut-off effect
and thereby apportion an equitable share of the continental shelfto the Federal
Republic.
In order to show that the cut-off eKect of the two equidistance lines con-
structed on the Danish-German-Netherlands coastline is a special circum-
stance, which justifies a correction in favour of the Federal Republic, one has
only to visualize a different configuration of the coastline. Assuming that the
German coastline did not curve back but rather, in its rniddle part, projected
towards the centre of the North Sea-say perhaps 20 to 25 miles farther to the
sea than the Island of Heligoland is now situated-in such a hypothetical case
the share of the Federal Republic would, by application of the equidistance
method, result in the sector claimed by the Federal Republic. This wouldcorne
about without any modification of the Danish-German or the Netherlands-
German coastline. That shows that the cut-off effect is caused by the deep
indentation in the German coastline.
One might well ask whether such differences in the configuration of the
German coastlineshould havesuch an effecton thesizeofthe Federal Republic's
share. In a macrogeographic perspective, the sector claimed by the Federal
Republic of Germany under the geographical situation in the North Sea con-
stitutes an equitable share compared with the respective shares of its neigh-
bours; and, therefore, the actual coastal configurations should not be taken
into account; it should be immaterial whether the coast curves back or projects
forwards. REPI-Y OF PROFESSOR JAENICKE 209
While in the narrower belt of territorial waters the coastal configuration in
the vicinity of the boundary determines the equitableness of such a boundary,
the allocation of areas far of the coast must be determined by the macro-
geographical situation. Conjequently, indentations or projecting parts, even
if they are of larger dimensions, should not decide the allocation of continental
sheIf areas at a distance of rnore than 10û nautical miles off the coast, Jt may
then be said that such inden~ationsor projecting parts of the coastline, if they
considerably influencethe siireof a coastal State's share, should be regarded as
a special circurnstance.
The learned Agent for the Kingdoni of Denmark further contended that even
if the configuration of the German coast could be characterized as a special
circumstance, the Federal Republic still has to establish what other boundary
line would be justified thereby and ilow such a boundary line rnight be con-
structed. To the latter question we have already responded and have made
clearhow suchan equitable boundary lineshould beconstructed. But, 1helearn-
ed Agent contended that the share of Denrnark as well as the share of the
Netherlands, within their equidistance boundary lines, were perfectly normal,
so that it would be unjustifiedto ask these States to transfer part of theircon-
tinental shelf to the Federal Republic. Here again, it is no argument in support
of hiscontention that the Kirtgdom ol'Denrnark or the Kingdom of the Nether-
lands share is normal and justified, to say it comprises a part of the continental
shelf which in afl its parts is neartclsome point of their coasts rather than to
the German coast. To say tlzat the application of the equidistance niethod is
justified by the principle of proxirnity is a mere tautology, since the equidis-
tance method is nothing but the geometrical expression of the principle of
proximity. Therefore, proximity cannot possibIy provide the standard of
whether the equidistance bi~undary and the shares resulting therefrom are
normal and equitable.
in order to prove the norinality oj'their shares, our opponents have repro-
duced two different maps iri their C'ou~iter-Memorials,to which the learned
Agent for the Danish Government hiis referred, namely the one in the Danish
Counter-Memorial, 1, page 213, ancl the other in the Netherlands Counter-
Memorial, 1,page 366.Both .rnapswere designedto show that if the houndaries
were drawn according to the equidistance method, neither the Danish share
nor the Netherlands share would b: abnormal in relation to its respective
coastline. However, the two maps a.re not identical. 1 think the Court will
perceive that the one in the Danishl Counter-Mernoria1 omits the German-
Netherlands equidistance boundary, while the other, in the Netherlands'
Counter-Mernorial, omits the German-nanish equidistance boundary. There-
fore, neither of the two maps shows the sizeof Germany's share, because in the
Danish map the shares of Ciermany and the Netherlands appear as a single
share, and in the Netherlartds map the shares of Germany and Denmark
appear as a single share. This creates the impression that the Danish share as
well as the Netherlands shan: are perrectly normal.
These maps, of course, weio not drawi by our opponents to create a wrong
impression because we all kriow what the boundaries and the shares of these
countries are. But the purpoae of these maps was to show that the continental
shelves of both countries are perfectl:?norma1in reIation to their coastlines if
viewedin isolation. That is the failacy of the approach of isolating the apprecia-
tion of each share without rezard to the share of any other State, although the
continental shelf in the North Sea has to be apportioned among the States
under principles that apply to each of those States.
One cannot appreciate the equitableness of the Danish or the Netherlands210 NORTH SEA CONTINENTAL SHELF
share separately without comparison with the shares of al1adjacent States, and
if you compare them on the map-1 will once again repeat that-you will
easily perceive that there is no equitableness of the Danish and Netherlands
shares when compared to the German share with respect to their coastlines.
The Federal Republic is of the opinion that an adjustment of the boundary
line as indicated on map No. 6, which we distributed yesterday, is not un-
justified. It is a modest adjustment and it is, in our view, not unjust either
towards the Kingdom of Denmark or towards the Kingdom of the Netherlands,
in view of the length of their respective wastlines. 1do not think that it takes
away areas which are clearly the natural continuation of the Danish or the
Netherlands Coast and therefore naturally appertaining to them.
The share claimed by the Federal Republic would then still constitute only
two-thirds of the size of the shares of its neighbours if our proposa1 would be
adopted. The adjustment of the German share, resulting in a sector which
would satisfy the claim of the Federal Republic, could be made without sub-
stantial diminution of the Danish or the Netherlands share. The area involved
would be approximately 12 per cent. of the Danish and 9 per cent. of the
Netherlands equidistance share-approxiniately, The approximate figures in
square kilometres would be 7,600on the Danish side, and 5,500on the Nether-
lands side. That concludes my observation on the application of the special
circumstances clause.
Turning to our submissions, we do not add toor subtract from the wording
of the Submissions Nos. 1, 2 and 3 contained in our Reply, 1,page 435. They
are therefore hereby explicitly and formally upheld. With respect to Sub-
mission No. 4, 1 would state the following.
Sinceour opponents haveasserted that the wording of our,Submission No. 4
could be interpreted as an invitation that the Court refer the matter back to the
Parties for further negotiation, we would like to replace Submission No. 4,
without changing its substance, by the following new submission:
"Consequently, the delimitation of the continental shelf, on which the
Parties must agree, pursuant to Article 2 of the Special Agreement, is
determined by the principle of the just and equitable share, based on
criteria relevant to the particular geographical situation in the North Sea."
The full text of the subrnissions has just been handed to the Registrar.
1 assume that the Court would, in accordance with the proper procedure,
like me to read the full text of aH the final submissions that we subrnit to this
Court. These subrnissions are :
1. The delimitation of the continental shelf between the Parties in the North
Sea is governed by the principle that each coastal State is entitled aojust and
equitable share.
2. (a) The method of determining boundaries of the continental shelf in
such a way that every point of the boundary is equidistant from the nearest
points of the baselines from which the breadth of the territorial sea of each
State ismeasured (equidistance method) is not a rule of customary inter-
national law.
(b) The rule contained inthe second sentence of paragraph 2 of Article 6 of
the Continental ShelfConvention, prescribing that in the absence of agreement,
and unlessanother boundary isjustified by special circumstances,the boundary
shall be determined by application of the principle of equidistance, has not
become customary international law.
(c) Even if the rule under (b) would beapplicable between the Parties, REP1.YOF PROFESSORJAENICKE 211
special circumstances within :the menning of that rule would exclude the ap-
plication of the equidistance method in the present case.
3. (a)The equidistance niethod ciinnot be used for the deIimitation of the
continental shelfunlessit isestablished by agreement, arbitration, or otherwise,
that it will achieve a just and,equitatlle apportionment of the continental shelf
among the States concerned.
(b) As to the delimitation of the continental shelf between the Parties in the
North Sea, the Kingdom of'Denmark and the Kingdom of the Netherlands
cannot rely on the application of the equidistance method, since it uould not
lead to an equitable apportionment.
4. Consequently, the deliïnitation of the continental shelf, on which the
Parties must agree pursuant to paragraph 2 of Article 1 of the SpecialAgree-
ment, is determined by the principle of the just and equitabIe share, based on
criteria relevant to the particuiar geo,gaphical situation in the North Sea.
These are our final subrnissions in this case.
Mr. President, before concluding inyaddress, 1would like to observe that
there are two basic question:;in issut:in this case. The answers given to them
may havefar-reaching effectson the future development of the law of the con-
tinental shelf. These questioris are:
First, should thedelimitation of the continental sheIf follow the rigid prin-
ciple of proximity or rather the more flexibleprinciple of the just and equitable
share.
Second: should only local and insignificantconfigurations ofthe Coastallow
minor adjustmeats of the continental shelf boundaries, or should, also, the
macrogeographical situation of a country provide a sufficientjustification fora
more equitable delimitation.
This concludes, Mr. President, the second presentation on behalf of the
Federal Republic of Germany. 1shall not faiI to thank you, Mr. President and
Members of the Court, for listening to our arguments. Thank you.
The Court rose (I12.20 p.m. NORTH SEA CONTINENTAL SHELF
ELEVENTH PUBLIC HEARING (7 XI 68, 10am.)
Present: [Seehearing of 23 X 68.1
Professor JAENICKE: Mr. President, would you pleaseallowme to make a
short announcement for the record. In response to the request of the Court to
make available to the Court minutes, notes or reports with reference to the
negotiations which led up to the partial boundary treaties between the Parties,
1would 1iketo announce that 1shall deposit on behalf of the Federal Republic
of Germany relevant material in this respect. The material will be made avail-
able to the Court as soon as possible, but since the selection and translation of
this material takes sometime1 shall deposit this material, withyour permission,
within th: next week.l
Le PRESIDENT: La Cour prend note de la déclarationde M. l'agentde la
République fédérale d'Allemagne.
REQUEST BY JUDGE MOSLER
Judge MOSLER: Willthe Agents ofthe Parties pleaseprovide the Court with
maps showing the baselines oftheir coasts facingthe North Sea from whichthe
breadth of their territorial sea is measured.
LePR~SIDENT: Naturellement, lesParties sont invitées à produire cescartes
aussitôt que possible, mais elles pourront les présenteraprès la clôture de la
procédure orale,s'ilne leur est pas possible de le faire avant.=
REJOINDER OF PROFESSOR RlPHAGEN
AGENT FOR THE GOVERNMENTOF THE KINGDOM OF THE NETHEKLANDS
Professor RIPHAGEN: Mr. President and Members of the Court, before
commencing rny address 1 rnay respectfully inforrn the Court that the notes on
the negotiations between the Kingdorn of Denmark and the Federal Republic
of Germany, relating to the partial boundary line, have been deposited in the
Regi~try.~The notes on the negotiations between the Kingdom of the Nether-
lands and the Federal Republic will bedeposited t~day.~
We willalso deposit in the Registry the documents we have been able to find
in the archives of the Ministry of Foreign Affairsrelating to the meeting of the
Cornmittee of Experh5
Finally, 1 may announoe that the repIy to the questions put by Judge Sir
Gerald Fitzrnaurice willbe givenby Sir Humphrey Waldock in the course of the
second round of the oral pleadings.
Mr. President and Mernbers of the Court, in their respective Counter-
Memorials, in their Comrnon Rejoinder and in their oral argument, the King-
dom of Denmark and the Kingdom of the Netherlands have repeatedly drawn
the Court's attention to the rernarkable inconsistency of the Federal Republic's
See pp.339-363,infra.
See Nos. 51, 52and53, pp. 391 and 392,infra.
Seopp. 303-319, infra.
See pp. 320-338, infra.
SeeNo. 50, p. 390,infra.submissions, and of the arguments thr Federal Republic advances in support of
its submissions.
The submissions and arguments of the Federal Republic, both in their
negative part-the rejection of the equidistance principle-and in their positive
part-the introduction of the so-called just and equitable shares principle-
present a formidable attempt to coinbine two fundarnentally different, even
diametrically opposed, legal approaches into a set of alleged legal rules,
favourable to the Federal Republic in these particular cases.
The Agent of the Federal Itepublic is apparently fully awareof the hazards of
such an attempt, since he himself qualifies the result of the operation as, and
1quote from page 36, supra, of the records of the second day, "a standard . ..
pertaining only to that particular sitiiation".
Ithink 1 would abuse the patience of tlie Court were Ito discussthe question
whether the Court could apply such a?one-case standard, without precedent in,
or consequence for, other cases, under Article 38 of its Statute or, indeed,
under Article 1 of the two Special Agreements submitting the two disputes to
the Court. The answer to thiit question is only too obvious.
But 1might be allowed,inthis final:;tageof the oraIprocedure, to demonstrate
brieflythe fundamental incoiisistencyin the FederaI Republic'sarguments and
illustrate this inconsistency with a ft:wquotations from the pleadings of our
opponents. In simple terms, the legallissue before the Court could be stated in
the forrn of the following alternative,
Are the sovereign rights of a State:over a continental shelf area to be con-
sidered-first branch of the alternative-as a continuation of its sovereignty
over its land territory; or-second branch of the alternative-as a resuIt of the
distribution of comrnon prolierty, tht: sea, between States?
Mr. President and Membi:rs of the Court, we respectfully submit that the
whole German argument, as developed and rnodified in the Mernorial, the
Reply, the oral pleadings in the first iroundand again the oral pleadings in the
second round, is an attempt to escape from this alternative by using concepts
derived from the second braiich of the alternative, in order to alter the normal
application of concepts derived froni the first branch of the alternative, and
this in a direction favourable to tlie expansion of the Federal Republic's
continental shelf. Let me explain this submission by a brief reviewof both the
negative and the positive German contelitions.
According to the Federal 'Republic.,the legal rule of boundary delimitation,
the equidistance-special circumstana:~ principle, would not be applicable as
betweenthe Parties to the pri:sentdisputes, as it would not result in the Federal
Republic receivinga fair and equitable sliare. The Federal Republic, and now 1
quote from page 37, .yupro,of the record of the second day, is sitting at the
table and is "waiting to get a piece of the cake which is to be divided up".
But, Mr. President, one rnay regret it or not, the body of existing rules of
general international Lawdoes not represent a coIlectivist system designed to
distribute the world'swealth betweenthe members of the comrnunity of States.
Quite a lot of boundariesi~the world havea considerably differentshape and
location if international Jaw wereto ilecreethat each nation should have at its
exclusive disposal a total area representing a fair and equitable share of the
world, or even only of the siibmergetlparts of the world.
On the contrary, and 1repeat, whether we regret it or not,international law
as it stands today accepts the Statmrs,the size of their territories and their
potentialities as they have historically developed, and its rules in relation to
boundaries are only marginal. Thesei-uiesrefer to lines, not to the total surface
of areas, and even less to the total resources and potentialities of such areas.214 NORTH SEA CONTINENTAL SHELF
When, therefore, the Federal Republic invokes, as it does, inter alia, on
page 32, supra, of the record of the second day, a so-called principle of thejust
and equitable share as-
"an over-riding principle generally recognized in legalsystems;a principle
which governs the distribution of wealth, resources, and potentialities
among persons entitled to the same if the legislator hasnot made aspecific
rule for that purpose",
then it invokes a so-called principle which, whateverits status maybeinmunici-
pal law systerns, is manifestlynot a principle of present-dayinternational law.
The, what one might call, individualist attitude of present-day international
law relating to States'territories is aIso reflectedon the institutional plane in the
generally accepted procedures of establishing boundary lines between States.
There isno centralized world authority which, to borrow again the metaphor
employed by the Agent of the Federal Republic, cuts the cake and hands out
the pieces to the States sitting around the table.
On the contrary, it is common ground that power and authorityare decen-
tralized in the present state of international law. As a consequence,the determi-
nation of a boundary line is a matter between each group of two neighbouring
States, in other words, is always a bilateral affair. For these bilateral relations
between neighbouring States, for the determination of the line where the
sovereign rights of one State meet the sovereign rights of the other State, the
rules and principles of international law give guidance.
But wherever one Iooks in the mass of materials relating to the rules and
practices of international law, one never can find a legal concept according to
which the boundary line between State A and State B is determined or in-
fluenced by the boundary line between State B and State C.
Surely we do not overlook the fact that in history we can find post-war
settlements which are multilateral treaties, inciuding the determination of
frontiers. But these are highly special treaties and can hardly be considered as
precedents for a general rule of international law prescribing a sharing out of
areas or resources in just and equitable shares.
Nor do we overlook the possibility that, from a political point of view, a
group of States might feelinclined to come together in order to rearrange their
respectiveterritories, possiblywith a viewto arriving at a solution according to
which members of the group which nature and history have provided with
greater potentialities cede some of those potentialities to other members of the
group less favoured by history and nature. Indeed, such a possibility was one
the Federal Republic had in rnind in the earlier stages of the present boundary
disputes.
In this connection it is significant to note the present attitude of the Federal
Republic towards what they consider to bethe common continental shelf ofthe
North Sea. On page 37, supra, of the record of the second day, the Agent of
the Federal Republic States:
"1shall.now try to develop the standard for an equitabIe delimitation of
the continental shelf between the Parties step by step.
The first fact which we have to take into account is the legal situation
already existent as to the delimitation of the North Sea continental shelf.
The continental shelf of the North Sea, 1would like to stress this point, is
already divided up into three sector-like parts or slices,ifyou like to say so,
the British sector which, as you willsee, is a rather large sector, fortunately
for Great Britain, the Norwegian sector and the remaining sector compris-
ing the Danish, Gerrnan andthe Netherlands parts. This general pattern of REJOINDER OF PROFESSOR R~PHAGEN 215
delimitation has already been agreeti to by treaties between Great Britain,
the Netherlands, Denmark and l\Jorway."
But, Mr. President, al1thcisetreaties mentioned bv the Agent of the Federal
~e~ublicai presenting the legalsituation to be takeninto account in the present
dis~utes are bilateral treatiesiestablishing the common boundary line between
two States; States which, in respect of tGeircontinental shelf areas, are neigh-
bouring States; and if thosl: bilateral treaties are rightly considered by the
FederalRepublic asestablishingthelegal situation, whythen shouldthebilateral
treaty between the Netherlands and Ilenmark, establishing their common
frontier on the North Sea continental shclf, not be'a part of the legal situation?
The answer is, of course, that the I'ederal Republic tries to escape from the
alternative. It accepts and recognizes the perfectly normal biIateral determi-
nation of common boundaric:~on the continental shelfbetween two States, the
sovereign rights of which rrieetat tliat boundary, the equidistance line; but
only to the extent that those boundaries do not operate to the effectof leaving
to the Federal Republic a continental shelf area which it considers insufficient
in size.Then it turns to the oiiposite 1elpproach of a multilateral sharing out
on the basis of fair and equitable sha.resbetween North Sea States.
There are more of those glaring inconsistencies in the Federal Republic's
arguments. We have already referred, in the Counter-Memorials, in the Corn-
mon Rejoinder and in our [iresent exposé,to the persistent confusion by the
Federal Republic of resources and splce.This confusion is a necessary element
of the attempt to escape thr: legal a'lternative.Indeed, if there would be any
principle of so-called equitable apporiionment, such principle could only
apply to an apportionment cifresourses.
This is, in effect,as we have noted earlier, the way the Federal Republic
formulates that alleged principle. But, since there is no doubt that the actual
rules and principles of international lawdetermine the extent of the sovereign
rights of a coastal State over its continental shelfnot in terms of resources, but
in terms of space, the Federal Republic iç virtually forced to let us believethat
the two notions-resources and spacr:-coincide,
In the second round of the oral pleadings, the Federal Republic has once
more tried to find some support for this alleged principle of equitable appor-
tionment in the so-called Helsinki Rules on the Uses of Waters of International
Rivers. The learned Agent for the F'ederalRepublic said, and 1 quote from
page 179, sripraof the record of 4 November :
"Since the resources of the continental shelfwhich have to be distributed
among severaladjacent States are asmuch limited as arethe resources ofan
international water-basin, the law is in both cases faced with the same
problem, namely the eqiritable distribution of such resources."
Mr. President,we have in OurCouniter-Memorials,in OurCommon Rejoinder
and in the first round of the oral pleadings demonstrated that this line of
argument is entirely beside the point. Reference may bemade to paragraph 49
of theDanish Counter-Memorial and .par;lgraph43ofthe Netherlands Counter-
Memorial, to paragraphs 21 and 22 of'the Common Rejoinder and to page 128,
srrpra,of the records of the sixth day..We have remarked there:
First, that it is extremely doubtfiil whether the so-called Helsinki RuIes
really express existjng international larw;but that ia preliminary point.
Second, that the international regulation of the non-navigational uses of the
waters of a drainage basin, oxtending over the territories of several States, is
primarily necessitated by the fact of rtature that water flowsfrom one point to
another; thus that the use of the water within the territory of one State216 NORTH SEA CONTLNEN~ALSHELF
necessarily affects the use of the water within the territory of another State.
No such problem exists with regard to the continental shelf as such.
Third, that the solution adopted in the Helsinki Rules is not a redistribution
of the territories of the basin States, which remain exactly as they are, but a
system of relative priority and accommodation of the various uses of the waters
by various States.
Fourth, that the Helsinki Rules, to this effect,take into account such factors
as the economic and social needs of each basin State and the availability, in
such a State, of other resources, to mention now onlytwo factors typical for the
approach of the Helsinki Rules.
Actually, Mr. President, the so-called Helsinki Rules rather illustrate a legal
approach radically different from the one advocated in the present cases by
the Federal RepubIic for the delimitation of the continental shelf areas. The
use by a State of resources within its territoryhas nothing to do with the ques-
tion of delimitation of the boundaries of that territory. The accommodation
of the various uses of resources by various States, taking into account the
needs of those States, has nothing in comnlon with a distribution of space in
proportion to the length of an imaginary line.
It is significantin this connection that the Federal Republic, whileon the one
hnd relying heavily on the Helsinki Rules relating to the uses of water re-
sources of an international drainage basin, the location of which must neces-
sarily be known in order to be able to assessthe effect,ofuse in one State on the
use in another State, at the same time and on the other hand does not consider
the actual or probable location of known or potential resources on or in the
continental shelf in the North Sea as one of the criteria for its scheme of so-
called equitable apportionment. This, at least, seems to be the upshot of the
repIygivenby the learnedAgent of the Federal Republic to one of the questions
posed by Judge Jessup. 1 may refer here to pages 164 and 165, supra, of the
records of the ninth day. Here again the Federal Republic shifts its base from
space to resources and from resources to space, according to convenience.
But, Mr. President, it is not mere chance, or even error, which lies at the
basis of the formulation, by the rules of international law, of the extent of
sovereignrights over the continental shelfin terms of spacerather than in terms
of resources. On the contrary, the formulation of the extent of such rights in
terms of space is a corollary of the concept of the continuation of a coastal
State's sovereignty into the sea, that is, a corollary of the other branch of the
alternative.
Indeed, this concept of continuation is at the basis of the legal definition of
the continental shelf, including its outer limit, as it is at the basis of the legal
rules relating to the boundary lines between States which on the continental
shelf are neighbours.
The Federal Republic is well aware of this and therefore once again switches
over silently from the alleged principle ofequitable apportionment of resources
to the other branch of the alternative, the delimitation of areas in space, inan
attempt to alter the very basis of the latter concept to its favour.
By doingso, the Federal Republic attempts at the same time to let us believe
that the rules of international law are concerned with the total size or surface
of an area whichappertains to a Staterather than with the location of boundary
lines between two States.
The sametechnique, of attempting to use one element of one of two mutually
exclusivelegalapproaches in order to alter the basis of the other Iegalapproach
in its favour, is apparent in the Federal Republic's elaboration of the a1leged
standard of equitableness. REJODJDEROF I?ROFESSOR RIPHAGEN 217
Here again the Federal Republic started from the idea of equal shares,
invoking the principle of eqiiality of States1 may refer here, intearlirr,to para-
graph 80 of the Memorial. Surelyit is also stated in the same paragraph that-
"the existence of a community of interests does not necessarilylead to the
conclusion that every coastal State of the North Sea can claim an equal
share of the continental shelf, regardless of the differences in the geo-
graphical situations of the individual coastal States. The Federal Republic
of Gerrnany has not insisted on sui:h division in the negotiations with its
neighbour States. Nevei'theless,the FederaI Republic of Gerrnany, in view
of the extent of its maritime respi~nsibilityas coastalState of theNorth Sea,
is at least justified in hiiping tkit ancriterion chosen for the apportion-
ment of the North Sea willnot tie of a nature as to reduce the share of the
Federal Republic of Germany dlisproportionately in cornparison with the
shares of the other coastal States."
Now this is a very significant statcment, and 1may recall to the Court that
recently the Agent of the Federal Rcpublic has expressIydeclared that al1the
arguments in the written pleadings are maintained. It is a significant statement
because it clearly demonstrates the basis of the Federal Republic's clairn:
equality of States commands in priricipie equality of the shares of a11coastal
States in the continental sh8:lfundei-the North Sea. If the Federaf Republic
finally cIaims less, that is pure modesty on the Federal Republic's part.
Indeed, the aIleged principle of eqoal shares, al1through the written and the
oral pleadings of the Federal Republic, underlies the persistent distinction the
Federal Republic wishes ici make between median lines between opposite
States, and lateral equidistance Iines between adjacent States. Median lines
between opposite States are, accordirigto the Federal Republic, the summit of
justice, since they result in (:qua1shitres apportioned to those States. Lateral
equidistance lines are gross injustice, since they do not result in the apportion-
ment of equal shares.
But the statement just quoted is also significant in other respects, since it
illustrates again the atternpt i:oswitch over to the other branchofthe alternative
Iegal approaches. Indeed, tlie Federal Republic cannot, of course, deny or
escape from the fact that the actual rules of international law are based on the
concept of conlinuation of tlie coastzllState's sovereignty.
It therefore cautiously advances th'rpossible relevance of "the differencesin
the geographical situations of the individual coastal States". But how could
this difference in geographical situation, product of nature and history, pos-
siblyjustify unequal shares irian equitable sharing-out process, as international
law would demand in the vision of the Federal Republic?
I If I may once more, and for the last time, borrow the Federal Republic's
metaphor of persons sitting around a table waiting for their piece of cake:
would it be so equitable thai: the targest of those persons, who faces the cake
with a larger frontage would get a proportionally larger piece of cake?
Xnreality, of course, the Federal Rcpublic, in the face of the consistent State
practice in the North Sea, cannot inaintain its thesis that the principle of
equality of the coastal States is the principle underlying the bilateral agree-
ments concerning the delimit,ationof the continental shelf. But, nevertheless, it
uses this concept of equitable distritiution in order to alter the real basis of
these agreements tosuit the Federal l<epublic'spurposes.
The real basis of the sovereignrightj of a coastal State king the continuation
of the sovereignty of that State over its land territory, the Federal Republic
does not "insist" on equal shares but invents an entirely new concept of equit-218 NORTH SEA CONïINENTAL SHELF
able apportionment which, at hst blush, seems to take into account "the dif-
ferences in the geographical situations of the individual coastal States".
That concept of equitable apportionment is, then, that the total continental
shelf area appertaining to each coastal State should be proportional to the
breadth of that State's so-called coastal front.
No attempt is made to explain this new concept from the point of view of
equitable apportionment. There is in al1the pleadings of the Federal RepubIic
not even the siightest hint of a possible explanation why the length of the
coastal front would be of any relevance for the equitableness of the apportion-
ment. The concept of distribution in proportion to coastal frontages is an
invention which purports to reconcile the idea of distribution of common
property with the idea of continuation of national sovereignty. Surely, in the
latter approach, the continental shelf area appertaining ta coastal State must
be adjacent to its whole coastline. But this is a matter of location of the con-
tinental shelf area, and not one of the total size of that area. The total size of
the area depends upon the location of the coastlines of the coastal States
involved, and not on the length of the coastline of each of those States.
It is logically impossible to reconcile this legal approach with the legal ap-
proach of distributing a common area in just and equitable shares.
Incidentally, Mr. President,so pressing is the need othe Federal Republic to
reconcile the irreconcilable that the Agent of the Federal Republic even goesto
the length of stating-and 1now quote from page 178,supra, of the records of
the ninth day :
"... the principle of the just and equitable share follows, in our opinion,
from the concept of the continental shelf by necessary implication. The
doctrine of the continental shelf, which is now generally recognized as
part of general international law, attributes to eachcoastal State a portion
of the continental shelf for its exclusive exploitation. The learned Agent
for the Government of the Netherlands has very aptly shown how the
submarine areas of the continental shelf, which formerly, as part of the
high seas, were subject to common use, had, by the development of the
continental shelf doctrine, been transferred to the exclusivejurisdiction of
the coastal States."
Mr. President, my gratitude for the compliment is somewhat marred by the
fact that it is patently undeserved, since 1 actually wanted to demonstrate the
opposite of what the Iearned Agent for the Federal Republic is stating here.
Indeed I stated plainly-if 1may beallowed to quote from page 137,supra, of
the record of the seventh day :
"Actually, it is impossible to explain the exclusive sovereignrights of a
State over the continental shelf adjacent to its coast as the result of a
sharing-out operation of the bed and subsoil of the high seas by the rules
ofinternational law. Indeed, the only possible explanation of these rights
is the recognition by international law of the extension of the national
sovereignty overthe land into sovereignrights over the continuation of the
land under the sea contiguous to the coast. The common area is not dis-
tributed but reduced by this recognition of exclusive sovereign rights."
Having once created the appearance of taking into account the differencein
the geographical situations of the individual coastal States, which is indeed
dictated by the legal approach of the continuation of the sovereignty of the
coastal State over its land territory into the sea, the Federal Republic's argu-
ment continues the erosion of that legal approach through various devices. REJOlNElER OP PltOF13SSORRIPHAGEN 219
One deviceis the introduciion of tlie so-called sector principle, the other is
the substitution of arbitrary and irnaginary coastal fronts for the actual coast-
lines. The two devices are closely inti:r-related.
It is obvious that a principle of equality or proportionality ofthe size of an
area cannot, by its very nature, give .anyindication about the location of the
share to be allocated to a particular S'tate.Consequently, the Federal Republic
has to invent another device to arrive at a particular location of its continental
shelf area. It has to invent !Jet anotlier principle for this purpose, and that
invention is the so-called sector principle.
Now, in order to be able to divide an area in sectors, one needs a circular
shape ofthat area. And a circlepresup,poses,ofcourse, a centre or middlepoint.
Ergo, the Federal Republic pretends that the North Sea is a roughly circular
sea area. Never mind the geo,gaphical realities, the Federal RepubIic seems to
think, we want a sector-like continental shelf area, reaching to a certain point,
and therefore the North Sea is circular in shape and the centre of that circle is
the point we want to reach.
1must confess,Mr. President and hlembers of the Court, that I have seldom
seen or heard a pretention concerning a rule of law so exactIy tailored to the
desires of a particuIar State in a particular situation.
In the course ofthe second day of the oral proceedings, the learned Agent of
the Federal Republic asserted-and 1quote from page 37, supra, of the record
of that day-"Our opponent:; cannot deny the geographical fact that this part
of the North Sea is roughly circular".
WelI, Mr. President and kiembers of the Court, we have always denied it,
and we continue emphatically ,to deny it, and we trust that a mere look at the
map of the North Sea suffia:~to assess the value of the Federal Republic's
contention that the shape of the North Sea is circular. But what is the purpose
of this singular and extraordinary contention?
Here again, the Federal Rcpublic tries to combine mutually exclusive legal
approaches, this time througli a georrietricalconstruction. Indeed, it attempts
to make the North Sea look Iike a cake-which is often circular in shape-and
then it follows as a matter of course that a sharing-out operation starts in the
middle and resuIts in sector-sliaped pit:ces.But the important point in this geo-
metrical construction is that, if the North Sea were a closed circular sea and
the circle represented the actual coastlines of the States surrounding the North
Sea, then the drawing of eqi~idistancelines from the frontier points on the
coastlines of these States would givecxactly the same result.
In other words-as ure havc:already rernarked in paragraph 27 of OurCom-
mon Rejoinder:
"in such an imaginary situation [an enclosed perfectly circular sea areal
the result is the same 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 ont: shares out the sea area, taking as a
starting point the middle of that :;eaarea".
The sole purpose of this geometrical construction, therefore, is to inake us
believe that there is no fundamental opposition between the two branches of
the alternative legal approaches.
As the learned Agent for the Federal Republic said, and 1 quote from the
record of the ninth day, page 190, supra:
"In the case of the south-eastern part of the North Sea, fortunately, we
can define the coastal frcint of each State, starting from the centre, or by
proceeding from the coac,tIine,Tfie rcsult reached by using either of these
two methods is not materially different." NORTH SEA CONTINENTAL SHELF
Indeed this is so-fortunately, as they say, for the Federal Republic-but
only because the geometrical construction presented by the Federal Republic
is such that, by definition, the so-called coastal front is constructed beforehand
in such a way that it yields that result.
Indeed, if the coastal front of a State is definedas the Agent for the Federal
Republic declares on page 188, supra, of the record of the ninth day "as the
Iine whichrepresents the breadth of its Coastfacing the centre", then it follows
necessarily, from the laws of geometry, that the construction of equidistance
lines from these irnaginary coastlines mustyield in principle the same resultas
a sharing out of sectors, starting from the so-called middle of the North Sea,
Unfortunately, however, for the Federal Republic, the North Sea is not an
enclosed sea and not even remotely circular in shape. Consequently, it still
makes al1the difference whether one starts to draw boundary lines from the
actual coastlines of the North Sea States, or shares out the North Sea from a
non-existing point, called for this purpose the middle of the North Sea.
In other words we are still faced with the alternative of legal approaches.
But then another deviceis introduced by the Federal Republic. If the actual
coastlines of the North Sea States are not like the arcs of a circle,well, then we
have to forget the actual coastlines and find a substitute for those coastlines
and thus the concept of the so-called coastal front is born.
Mr. President and Members of the Court, on this concept of the so-called
coastal front we have, in principle and apart from the comments my learned
colleague will,with your permission, make Iater on regarding its application by
the Federal Republic, not much more to Saythan we did in the first round of
the oral pleadings.
If anything, the concept of coastal front, in the course of the second round of
the oral pleadings of the learned Agent and the learned counsel forthe Federal
Republic, has become even more arbitrary and nebulous, has becorne even
more a concept introduced, as the French sayinggoespour le besoinde la cause.
In my remarks on this matter, submitted to the Court on the sixth day, I
referred to "the latest version of the German coastal front concept".
In the meantime, a stilllater and again differentversion has, byOuropponents,
been presented to the Court and illustrated by map number 5 (p. 189, supra),
distributed and commented upon bythe learnedAgent for the Federal Republic
on the ninth day. The Court will no doubt have noted that the so-called
coastal fronts of Denmark and of the Netherlands, as presented on this map,
are again different from the ones mentioned in the first round of the oral
pleadings by the learned Agent for the Federal Republic.
Again these imaginary lines, the direction and length of which are essential
in the German argument, have changed in the period of a few days both in
length and in direction.
Well, Mr. President and Members of the Court, from the moment one
forgets thegeographica1realities of the actual coastlines and starts constructing
straight lines which have nothing to do with those actual coastlines, there is
obviouslyno end to it, and one coastal front is, in principle, just as arbitrary as
another. Of course, there is a reason behind this continuous change of the
arbitrary construction in the course of the German pleadings. My learned
colleague frorn Denmark will have more to Sayabout this matter.
Anyway, Mr. President, the fact that at this stageof the oral pleadings we
are faced with still another coastal front which, in the case of Denmark,
hardly touches the actual coastline and, in the case of the Nethedands, does not
touch the actual coastline at all, can only conhm the purely arbitrary char-
acter of the construction itself. REJOINDER OF PROFESSOR RIPHAGEN 221
The concept of coastal front then is a still-born child, unable to face the
realities both of geography and of the law.
Conceived for the purpose of application of the alleged principle of just and
equitable shares, the coastal front cannot serveas a basis for the application of
the opposite principle that the sovereignrights of a coastal State over its con-
tinental shelf are the continuation of its sovereignty over its land territory.
But now, in a final atternpt to escape the alternative of Iegal approaches,
the Federal Republic triesnevertheless to use the wastal front concept under
a different cloak, to wit, the cloak of special circumstances. Originally this
disguise was fairly easy to look through.
The Federal Republic, inrt!ralia, in paragraph 82 of the Reply, alleged:
"if geographical circumstances bringabout that anequidistance boundary
will have the effect to cause an unequitable apportionment of the con-
tinental shelf between the States adjacent to that continental shelf, such
circumstances are 'special'enou;:h to justify another boundary line".
Here it is easy to see that special circumstances are invoked only as a sub-
stitute for a pure sharing-out operatic~n.As such itnaturally throws overboard
the principle of equidistance, which i.sbased on the other branch of the alter-
native of legal approaches.
But, in the face of the impossibility of denying that the legal approach of
continuation of sovereign rights of the coastal State over its continental shelf
underlies the actual rules and principles of international law in this iield, the
Federal Republic attempts ta alter the consequences of this iegal approach,
the equidistance-special circiimstances rule, into a rule that would serve its
purpose.
The only way in which thi:scould t>edone is, of course, the re-introduction
of the coastal front concept ilnder th<:disguise of a correction of the baselines
from which the equidistance lines are coiistructed.
And this is indeed what is done in -theoral pleadings of the learned counsel
for the Federal Republic, Professor Clda.
In his address to the Court on the tenth day, Professor Oda traces the history
of the straight baseIinesysteni from tlie Judgment of your Court in the Anglo-
Norwegian Fisheriescase to the adoptiori of the final text of Article 4, para-
graph 1, of the Geneva Convt:ntion OIIthe Territorial Sea. In the course of the
history of Article 4,paragraph 1, the originally envisaged maximum length of
ten nautical miles for a straight basdine was dropped in favour of the more
flexible formula "joining appropriate points". From this fact Professor Oda,
so to speak, extrapolates towards his concept of coastaI front or, as he calls it,
coastal façade,as a corrected baseline from which the equidistance lines are to
be constructed. The Iearned counsel for the Federal Republic thus arrives,
through what he calls, on page 195,supra, of the records of the tenth day, "a
further abstractionfrom the actual coastal configuration", at straight baselines
before the coasts of Denmark, the Fetieral Republic and the Netherlands. But
the length ofthose straight baselines,in anycase,far exceeds 100nautical miles,
and the direction of these striiight baselines has nothing to do with the actual
North Sea coast Iines of thost: States.
Now, is this an application of the method, envisaged in your Court's Judg-
ment in the Anglo-NorwegianFi3herie.scase, for a rugged coast, namely and 1
now quote from page 129of the I.C.J. Reports 1951"the method of base lines,
which, withinreasonable limit:s,may dcpart fromthe physical line ofthe coast"?
We respectfully submit that this is not an application of the Court's Judg-
ment. We also respectfully submit that the learned counsel for the Federal222 NORTH SEA CONTINENTAL SHELF
Republic, in his search for unlimited flexibility,ovedooks that Article 4 of the
Geneva Convention on the Territorial Seacontains morethan only paragraph 1,
and also overlooks that that same Convention also contains an Article 7
relating to bays. The provisions just mentioned are an expression of what your
Court has called the "reasonable limits" of the application of the straight
baseline method. Lndeed, without those reasonable limits very little space
would be left to the international rkgime of the high seas.
Mr. President, it is significant that+evenin this line of argument, the correc-
tion of the baselines frorn which the equidistanoe lines should be constructed,
the Federal Republic still atternpts to escape from the alternative of legal
approaches.
While Professor Oda starts from the land, the line of the low-water mark,
and by a process of abstraction from the actual coastline somehow arrives at
his coastal façades, Professor Jaenicke still starts from what he calls the middle
of the North Sea in his interpretation of the special circumstances clause.
Indeed, this differencein starting point was clearly expressedby Professor Oda
in what is recorded on page 196,supra, of the records of the tenth day.
But, Mr. President and Members of the Court, there is no escape from the
ajternative of legal approaches.
The sovereign rights of a State over a continental shelf area are to be con-
sidered eitherasa continuation of its sovereigntyover its land territory, or as a
result of the distribution of the seas between States.
In al1 their written and oral pleadings the Kingdom of Denrnark and the
Kingdom of the Netherlands have consistently maintained that only the first
branch of the alternative is compatible with the existing rules and principles
of international law relating to territory and boundaries in general and to
maritime areas and boundaries in particular.
The whole philosophy of present day international law, the practice of
States to establish bilaterally their common frontier, the expression of sover-
eignrights in terrnsofspace rather than in terrns of resources,the determination
of the extent of those rights in terms of location of linesrather than in terms of
total size of an area, the accepted concept that la ferre domine la mer rather
than the other way round, and the strictlimitations of the application of straight
baselines in order to stick to the geographical realities, al1these legal elernents
point towards the equidisiance-special circumstances principle of boundary
making and point away from the alleged principle of a just and equitable
sharing out of resources,
This, we think, is the position in law and in relation to the continental shelf.
We need not repeat that in relation to the ocean floorwestand firrnlyfor an
international régimewhich retains this area and its resources within the domaine
public international for the benefit of al1rnankind.
Nor is it perhaps necessary to re-affirm that in the field of economic policy
we stand firrnly for the largest possible degree and extent of international
CO-operation.
These two points, the régimeof the ocean floor and international economic
CO-operation,are not in issue.
The two disputes atpresent before the Court are boundary disputes relating
to the extent in space of the exclusive sovereignrights of particular States,in
other words are legal disputes par excellence.
They cal1for a clear-cut answer on the basis of firrnlyestablished rules and
principles of international law.We feel confident that they will get such answer
frorn the judgment of your Court. REFOINDER OF 1dR.JACOBSEN
REJOINDER CIFMR. JACOBSEN
AGENT FOR THE GOVERNMEPIT OF THE KINGDOM OF DENMARK
. Mr. JACOBSEN: Mr. Pr'esidentand Members of the Court.
A slight change of the orcleof speaking on our side has taken place.
While during our first pre:;entatiorithe question of the special circumstances
clause as a whole, both generally antl in its application to these two cases, was
left tome, Professor Waldock willthis time givethe necessarycornmeiitson the
understanding of the clause during his discussion of the law in general.
On theother hand it is incumbent iipon me to discussthe different ideas as to
the boundary delirnitation put forth by the Federal Republic. 1 shall treat al1
of what might be called the geometly of the cases, whether this geornetry be
based on the specialcircumslances clause oron general considerations,with the
one exception that the so-called coastal fronts in thernselveshave been com-
mented upon by the leamed Agent fcirthe Kingdom of the Netherlands. 1 can,
therefore, on this part of the technicaIsideconfinemyself tocommentson these
fronts only as far as is strictly neçessaryin describingeach newgeometrical idea
developed by the Federal Republic.
At the same time 1 consicler the ltgal question as treated, or to be treated,
by rny two learned friends and I shall therefore only touch upon questions of
law when it seems necessary in order to place the different assertions of the
Federal Republic in their proper perspective.
My address will fa11in twcimain parts. First I shall follow the developments
of the assertions of the Federal Re~iublicthrough the different stages of the
cases, in order to show how the gene:ralposition is at each stage sustaineby
different consideration. FinallEhave one single, somewhat more comprehen-
sive, part regarding one single point.
In my address last week 1mentioned that the constructions put forward by
' the learned Agent for the Federal Republic in our opinion called for searching
comments. But as the fearneti Agent for the Federal Republic had promised to
demonstrate the schemes put forward Iiyhim and Professor Oda, we found
ourselves both bound and erititled to reserve our comments until this demon-
stration hadtaken place.
This has now to some extent happened, and we shall for the first time during
the oral proceedings giveour commeritsto the differentindications of solutions
put forward by the opposing !side.The solutions proposed can only beevaluated
on their rnerits if they are secn in their evolution through not only the written
proceedings, but also through these oral proceedings, That means that 1have
to present quiteanumber of different, and to some extent conflicting, projects.
1 shall, however, beas brief'as pos~.ibIc.But the Court will appreciate that
because the opposing side had to postporie, until their second presentation, the
clarification and explanation of what they really rneant, this is Our first op-
portunity fora comment.
No doubt it is a general position of'the Court that the decision wiIlbe made
on the true rnerits of the case:;and independent,of the possible short-comings of
the presentations by the Parties. But one consideration seernsto me to rnake it
mandatory just to look into the differerit assertions put forward by our op-
ponents.
These are, after all, cases between States regarding boundary delirnitation.
When casesof that kind and tietweensuch.parties are brought beforethis Court,
one would expect that each of the States concerned had made its position clear
to itself and had a clear liniof thought and argument which coulcl be put224 NORTH SEA CONTINENTAL SHELF
forward in such a way that they could be clearly understood, and which were
followed through the whole of the proceedings, written as well as oral.
In our opinion this has not been the case asfar asthe different presentations
on the side of the Federal Republic are concerned. We think that when a
State in a case like this, where not one singlenew element of fact has come up,
has several times fundamentally changed the considerations upon which its
claim is based, there isevery reason to doubt that this claim is truly justi-
fied.
Introductarily 1 should just mention that the whole line of argument on
which 1 am going to comment has come into existence as between the three
States involved with the Memorial.
During negotiations the Federal Republic discredited the equidistance
principle. And she mentioned the possibilities of joint exploitation and of
"a sectoral division in the middle of the North Sea"without giving any indi-
cation, either orally or graphically, as to what tbis was supposed to mean. The
case as presented in the Memorial was a complete surprise to both Govern-
rnents, and there has been a subsequent series of surprises.
The background for the development from the stage of negotiations to these
two cases is clearly seen from the documents handed over to the Court by my
Government according to the Court's request.
During negotiations the Federal Republic indicated that beyond the partial
boundary agreed upon, she did not want a result based on law. And then, of
course, no legal considerations could be expected.
Before, Mr. President, going into the difficulttaskofanalysing this part of
Ouropponent's case, 1have a few rernarks to make on an assertion, or hinted
assertion, which does not follow the general pattern of the changes of the
Federal Republic's position.
As 1 have mentioned before, apart from the more massive contentions put
forward by the Federal Republic, the case has been covered by a veil of as-
sertions that the equidistance delimitation in these two cases was influenced by
projecting parts of the coasts causing inequitable diversions of the boundary
line. The Court will no doubt recall this expression.
At the end of his address on the second day the learned Agent for the
Federal Republic, however, admitted the total correctness of the two equidis-
tance boundaries when seen in isolation, and thus completely retracted any
assertion that individualcoastalconfigurations playeda role in the delimitation.
The learned Agent in his second address did not try to deny that this was a
correct conclusion, drawn from his general admission.
Nevertheless, during his final address on the ninth day, for instance on
page 170, supra,of the record, the learned Agent for the Federal Republic again
implied that rnere distance from some point of the coast was of importance in
the equidistance delimitations at hand. The learned counsel, Professor Oda,
did the same.
1 can only draw the Court's attention to the fact that these repeated in-
vocations of individuaI projecting points of the coasts had relation to an
assertion which had beforehand been retracted.
Through the whole of the proceedings, the main assertion of the Federal
Republic has been that a division should take place according to the concept of
the just and equitable share.
What 1 have to comment upon is what has been put into that concept-what
more specific considerations, according to the Féderal Republic, should be
decisive when making that just and equitable division. If these more specific
considerations are too much differingfrom time to time, and, at the sarnetime, RI:JOINDEROF MR. JACOBSEN 225
partly contrasting, the concept of the just and equitable share seems with
necessity to move further and furthcc i~itothe background.
True, the Federal Republic has coilstantly declared that the ideas put forward
in order toput some content and existence into this concept are meant only as
indications for the possible agreerncnt on another boundary line. But even if
this is so, the considerations put forwartl in a general form should, if they are to
create confidence, be both coherent ancfeach by itself of such a nature that it
could with reason cause the existing general rule, the equidistance principle, to
be set aside.
When analysing the different proposals put forward by the Federal Republic,
I must necessarily base myse:lfon the ideas of our opponentsand expressmyself
in their language as to, for instance, coastal front, standards of evaluation and
the like. Need 1Say, Mr. Piresident,tha.t thisdoes certainly not mean that we
associate ourselves with those concepts:'
The development of the Ciermanargument falls into three general parts: one
presented during the writteri proceetiings, one during the German first presen-
tation in the oral proceedings, and one during the Gennan final presentation.
It is, of course, not possible to keea strict distinction betweenthe three parts.
I may have to use information from one part to clear up what has been said in
another part.
This may to some extent seern like going over known ground, but it is
essentially necessary in ortler to explain the truly remarkable developrnent
which took place, especially in the tl~irdphase.
1 now turn to the first pliase of the German case. During the written pro-
ceedings the position of the Federal Rcpublic was that the concept of a just
and equitable share should be filleclout by two general considerations. One a
was that the Federal Republic was erititledto a continental shelfarea extending
to the United Kingdom's ecluidistancelioundary in the North Sea, which was
expressed in the words that it shoultl reach the middfe of the North Sea. This
contention would giveone point in tlie North Sea decidingthe position and the
direction of the boundary lines.
The other concept was tliat the total area of the Federal Republic's con-
tinental shelf should be fouild by a proportionate division of the thtee States'
combined continental shelf areas according to the ratio between the lengths
of the coastal fronts of those three States.
On these two contentions the continental sheIf area could be indiçated and
this was, in fact, done in figure 21 in the Memorial, 1, page 85.
1shall first rnake a few remarks on the contention that this Danish-Nether-
lands-United Kingdom tripoint is a proper end point for the FederaI Republic's
continental shelfarea. What 1have hereto sayon this point coversal1comments
regarding this end point during the whole developmentby the Federal Republic
covering the following stage!;as well. The comment can best be made upon the
diagrams 1-4(pp. 183-187, :wpra) arid especially on diagram 4 (p. 187, supra)
produced by the Federal Republic of Germany on Monday of this week and
these seen in connection with the said figure 21 of the Memorial.
The contention is that a share, when the sea is circular, should reach the
centre. There is neither a circle nor a centre.
That there is no circle hsu today ben demonstrated again by the learned
Agent for the Netherlands. 'ïhat there isno centre is quite apparent from the
diagrams 1-4.
The Federal Republic was asked by the Court to show the median line as
between the Federal Republic and the United Kingdom and between the
FederaI Republic and Nonvay, the two States mentioned in each case seen in 226 NORTH SEA CONTINENTAL SHELP
isolation. The lines drawn were undoubtedly correct. The Federal Repubiic on
her own initiative added a similar isolated median line between the Nether-
lands and Norway and this Iine undoubtedly is also made out correctly.
Basing herself on diagram 4, the Federal Republic declared that this diagram,
showing the considerabIe intersection of median lines, both actual and hypo-
thetical, within a comparatively small area of the North Sea, proved that this
point was truly the middle of the North Sea as between the fiveStates. This
must mean the Netherlands, the United Kingdom, Norway, Denmark and the
Federal Republic.
This, however, is directly and cornpletely wrong. The median lines crossing
each other within this comparatively small area have been made out, as indi-
cated on each line, but no rnedian line between Denmark and the Netherlands
has been made out and no equidistance Iines between the Federal Republic
of Germany and the Netherlands and the Federal Republic and Denmark have
been made out. If that had been the case, those lines would certainly not have
intersected in the area shown in diagram 4. 1think that the hypothetical lines
have blurred the vision. No boundary line with any actual reIation to the
Federal Republic cornesanywhere near this area.
The position is, of course, exactly the sarne with regard to Belgiurn and
France, but 1do not think 1have to go into this.
This whole problem was dernonstrated very clearly by the learned Agent for
the Netherlands in his first address, in which he pointed out that of the five
different tripoints in the North Sea-record for the sixth day, pages 130-131,
supra-two of these tripoints are very near to each other, as can be seen in the
map on the wall l,but this is not the casewith the tripoint between Denmark,
O the Federal Republic and the Netherlands or any tripoint to which the Federal
Republic is part.
The Court a4ournedfrorn Ij.20 a.nt.to 11.55 am.
Before the recess 1 had just finished my comments upon one half of ouf
opponent's case in the written proceedings regarding the centre. As to the
other part of the Federal Republic's contention in the written proceedings,
the proportionate division, this can also beseen from figure 21,in the Memo-
rial, 1, page 85, and in paragraph 86 on the opposite page.
The Federal Republic takes the full area of the three continental shelves
delimited to the north by equidistance towards Norway, and to the Westby
equidistance to Belgiurn,and thus includingareas of the Danishand the Nether-
lands continental shelves very far away from the Federal Republic. This ag-
gregate area she divides in the ratio of approximately 6 : 9 : 9 given as the
ratio of lengths of the coastal fronts of the three countries. That is said in
paragraph 86.
As these wastal fronts were indicated in figureA in the Common Rejoinder,
1,page 470, the ratio between their lengths is roughly 6 : 9 : 9. This shows, in
addition to ail that the leamed Agent for the Netherlands mention& during
his first address-this is in the record for the sixthday, page 132, supra, and
following-that figureA givesa true representation ofwhat was at that time the
Federal Republic's understanding of coastal fronts.
That the areas, when the division was as suggestedin figure 21 of the Memo-
rial, were approximately in the same ratio as the lengths of these coastal fronts
is,of course, a mere chance. The continental shelf to the north of Denmark,
-- -
l See footnote 1 on p. 32,supra. REJOINDER(IFhm. JACOBSEN 227
which does not concern the FiederalR.epiiblic,could, of course, havebeen much
larger, the length of the Danish coastal frontage being the sarne if, for instance,
the coasts of Nonvay were placed fiirther to the north. 1 shall not comment
further on this part of the position talcenby the Federal Republic in the written
proceedings.
This was the case as presented by the Federal Republic in the written pro-
ceedings and the case which we expected to meet during the oral proceedings.
But the picture changed con;iderably.
The main thesis was, also during the oral proceedings, as 1have rnentioned,
the just and equitable share.,but how this concept was to be translated into
some possible kind of practicability was riowquite another matter. The Federal
Republic abandoned a material part of what she had advocated in the written
proceedings and tumed to quite different considerations. I shall first comment
upon the case made by the karned Agent and later revert to the case made by
the learned counsel, Professor Oda. These two cases were clearly different;
regarding both cases 1so far refer to the first oral presentation.
Within the concept of the just and equitable share, the learned Agent for
the Federa1 Republic practically threw the proportionate division of shelf
areas overboard, and based hirnselfsolely on the new concept of continuation
of territory as the true basis for bouiidary delimitation. This was done in the
record for the second day, rnainly on page 40, supra,and in the record for the
third day on pages 63 to 65, supra.
Thiscontinuation was said fo take placefrom the coastal fronts which should
indicate the direction of this continuation. It is apparent thata continuation
based on coastal fronts as they were indicated during the written proceedings,
and set down in figure A of the Common Rejoinder, could not possibly serve
the purposes of the Federal F.epublic. The intersection would take place some-
where outside the North Sea. Theref'orethe Agent for the Federal Republic
completely gave up the coastal front concept as indicated in the written pro-
ceedings and changed the co.asta1fronts in order to effectuate a continuation
in the direction which he wanted. However rernarkable this operation may
seem, it was, indeed, quite siinple.In the record for the third day, the learned
Agent said:
"This was the concept that 1had in mind, taking the coastal front as the
basis and also taking a.n already determined fixed point or area, the
rniddle of the North Sea, because it has already been agreed upon that
these three sectors will b.aformecl." (Supra, p65.)
This means that not only does the Federal RepubIic compIetely change the
concept of coastal fronts, but she does this informing the Court quite boldly
that the direction of those cciastalfrcints had beforehand been decided upon,
because the wanted point of intersect:ionis the given point which has already
earlier been taken as decisive:,but on.quite different considerations.
What the coastal front should be was very cIearly indicated by the learned
Agent for the Federal Reputilic in thlerecord for the second day, page 41,
supra, and the third day, page 64, supra, and it was very eficiently described
and indicated on the map by the Agent for the Netherlands during his first
address. 1 think the Court wjll clearly rernember those alleged coastal fronts,
which have not been put down in any diagram.
As the Federal Republic still rnainiained her claim to an area of quite the
sarne size and position as sh.5had done in the written proceedings, it seerns
clear that the whole idea of proportionate division of areas according to the
lengths of coastal fronts had Trieethrt~wnoverboard. 228 NORTH SEA CONT~NENTALSHELF
The new coastal fronts of Denrnark and the Netherlands were very much
shorter than the ones described by the Federal Republic in the written pro-
ceedings and shown in figureA of the Common Rejoinder. This is apparent if
they end on the coastline, but it is also the case if their coastal fronts continue
into the sea, as apparently envisaged by the Federal Republic as far as can be
seen from diagram 5, to which 1shall refer later. The whole idea of propor-
tionality had therefore collapsed at this stage, without the Iearned Agent
giving any explanation why this total change of position had been taken.
1 shall, in the third phase, revert to the revival of this idea of proportionate
division.
How the delirnitation based on continuation from the new coastal fronts
was to work out was not explained directly. But1want to stress, Mr. President,
that the idea of summing up an amount of square areas, or fractions of square
areas, of diKerent parts of the alleged Gerrnan continuation, as it was done
later on the basis of diagrarn 5, presented during the learned Agent's second
address, was not so much as hinted at.
It seemed apparent, especially when the learned Agent accepted the Court's
suggestions as to this point, that he meant continuation consisting of lines
parallel with the coastal fronts moving outwards, and that he envisaged that
the intersection would be decisiveas to the drawing of the boundary lines. And
when the learned Agent, in the record for the ninth day, that is, in the third
phase-pages 190 to 191, supra-when introducing the varying numbers of
square kilometres, said that these should show that the sector claimed "is not
only geometrically equitable", he confirrned that in his first presentation he
had envisaged a geometrical delimitation based on continuation.
It further seems apparent that when two continuations take place at angles
less than 150 degrees and consequently rnust overlap, the consequence with
regard to delirniting the boundary lines must be that the angles of the over-
lapping areas should be divided in the middle between the two adjacent States.
True, this was not spelledout, and the reason was undoubtedIy that the whole
idea of direction of continuation, based on revised coastaI fronts, was without
* any content whatever. Asthe Agent for the Wderal Republic explicitlyadmitted
in the record for the third day, page 65, supra, which 1have just quoted, the
whole thing, and that is, the direction of the new coastal fronts, had been ar-
ranged beforehand with the explicit airn of rnaking the boundary lines meet in
the point which the Federal Republic calls the rniddle of the North Sea, and
which is the Danish-Netherlands-British tripoint.
1 shaIl revert to the question of the geometrical consequences of ovcr-
lapping continuations when 1reach the third phase, where we have an illustra-
tion of a continuation, although this continuation is not the one which the
learned Agent described in his first address, and although this continuation is
used in quite a different way than the continuation concept presented in the
learned Agent's first address.
What wehere want to point out specificallyregarding this second phase being
the first oral presentation arethe following two things.
First, that the idea of proportionate division, so decisiveduring the written
proceedings, was completelyabandoned. The revised coastal fronts make any
application of this concept impossible.
Secondly, that the whole elaborate explanation regarding the revised coastal
fronts and the foliowing continuation was admittedly without any content,
either in law, equity or geometry, because the coastal fronts of Denmark and
the Netherlands were rcdirected oniy on the consideration that the intersection
of boundary lines should take place in the tripoint chosen, at a much earlier REJOMDER OF hIR. JACOBSEN 229
stage and based on other cor~siderations,as the point to which the ambition of
the Federal Republic extend!;.
That ends rny remarks on the case of the learned Agent in the second stage.
Then, Mr. President, we had on the third day the address of the Iearned
counsel, Professor Oda, whii:h address concerns us here as far as regards the
final part, pages 62 to 63, sitpra. A1i:hoilghexpressed with some carefulness,
it will be apparent that the learned counsel's point was to take the already
suggested Borkum-Sylt line-as presented by the Federal Republic in the writ-
ten proceedings and illustraied in figure A of the Common Rejoinder-as a
baseline from which to draw demarcation lines. It was not said explicitlyhow
this was to take place.
Two different approaches Imdnow ken proposed in the second phase. The
Iearned Agent had proposed a geom~:tricaldelimitation based on three over-
lapping continuations from new coastal fronts and Professor Oda iiad pro-
posed the construction of demarcation lines on the basis of the Borkum-Sylt
line. It was not explained how these propositions could possibly coincide.
To a question from the Court as to tlie clarification of this rnatter, partic-
ularly how the linesof demarcation should bedrawn on a straight line, Borkum-
Sylt, the learned Agent asked for tirneto demonstrate thisin the second round
of the oral pleadings. I took the opportunity, in my firstaddress, to stressthat
wetook it for granted that this demomtration would take the form of diagrams.
1shall now turn, Mr. President, to the third phase, consisting of the second
oral presentation of the casi: for the Federal Republic. During this phase 1
shall have to revert to some extent to the second phase, because some lighthas
now been thrown on the prqiects set forth in the second phase.
Seven diagrams were presented. Of'these, onlytwo diagrams, Nos. 5 and 6
(pp. 189 and 182) could have any possible relation to the problems treated
here, the construction put foith during the first stage of the oral pleadings. As
regards diagram 6, the Court .ni11rern€mberthat it was expresslysaid to be only
a reproduction and clarification of figi~re21of the Mernorial, produced for the
convenience of the Court, Tliat is in the record for the ninth day, page 180,
supra. This leaves diagram 5 as the only graphic demonstration put forward
in the form of a diagram, aiid this tliagram clearly only has relation to the
proposals of the learned Agen.t.No diiigram representing the ideas of Professor
Oda was presented.
No oral explanation as to i.hisdifferencebetween the two schemes has been
givenapartfrom a fewremarks from the learned Agentand from Professor Oda,
each of these remarks showing that the two proposals are different in their
concept of the starting poirit or, pt:rha.ps, starting line. Nothing real was
indicated as to the relation between the results and oonsequently 1think1 am
entitled to Saythat the Court's questions,on which wehad based somuchhope
of clarity, have not been fully answered.
1shall here again begin with the scheme of the learned Agent whichis partly
and with considerable changesas to the description given during the final oral
hearings and depicted in diagram 5. It is, Mr. President, difficult to decide
where to begin and where to end.
On page 191, supra, of the record fbr the ninth day, the learned Agent ex-
plains that the continuation may gecmetrically be expressed by a stretch of
area covered by the parallels following each other from the coastal front to-
wards the centre of the North Sea and enclosed betweentwo lines contracted at
the end points of the coastal front, perpendicular to the coastal front.
It can easily be seen that diagram 5 is not made out in this way.
The continuation of the alleged Ge:rm;incoastal front is in full agreement230 NORTH SEA CONTINENTAL SHELF
with what was said by the learned Agent and the same applies to the sides of
the continuing coastal fronts of Denmark and the Netherlands nearest to the
Federal Republic, but it certainly does not apply to the alleged continuation
withregard to the other ends of the coastal fronts of these two States. This can
most clearly be seen at the northern end of the alleged Danish coastal front.
Were the continuation is contained by the existing equidistance boundary
which is certainly not perpendicular to the alleged coastal front. If the princi-
pies described by the learned Agent were applied here, the Danish coastal front
would, to a considerable extent, advance into the Norwegian equidistance
area. The same applies, to some smaller extent, to the continuation of the
Netherlands coastal front towards the United Kingdom.
Consequently, the concept of coastal fronts must with necessity cause cor-
rections towards the United Kingdom and especially towards Norway, but the
Federal Republic has for a long time maintained that the equidistance bound-
aries towarbs these two States are perfëctly correct and equitable.This shows
very clearly how the general principles invoked by the Federal Republic are
considered appropriate towards the Federal Republic, but not towards any
other State.
Woweverrevealing this fact may be, it is reaIlynothing compared to what the
Court will see ifdiagram 5 is only superficialIyanalysed as regards the relation
Denrnark, the Federal Republic and the Netherlands.
As the Court will be aware, the learned Agent for the Federal Republic,
during his second address, left no doubt with the Court that the lines of inter-
section in diagrarn 5, if these were drawn in accordance with the geometrical
delimitation envisaged during the first presentation, would meet in the Danish-
Netherlands-British tripoint so often mentioned. It was not said in so many
words, but the implication was clear, especially from the production of dia-
gram 6, where this intersection is shown and where the proposed boundary
lines are drawn between this point of intersection and the end points of the two
agreed boundary Iines near the coast.
On the surfaceit seemsremarkable that theselinesarenot shownin diagram 5.
We have therefore exactly reproduced diagram 5-it has been distributed to
the Court and it is marked A (p. 231,infia)-and made only the one small ad-
dition that the dividing Iines based on the concept of overlapping continuation
have beenput in. Theselinesare, as 1have mentioned, thebisectors of the two
angles overlapping ktween Denmark and the Federal Republic and between
the Netherlands and the Federal Republic.
As it will be seen, they intersect in a point considerably nearer to the coasts
than the point shown in diagram 6, the point which, according to the learned
Agent for the Federal Republic, woyld be the actual point of intersection.
1can already here assure the Court that this is not a result of the diagram
not being exactly made out, it isa matter of principle.
If the Court looks carefully at diagram 5, it will be apparent, as already
pointed out today by the learned Agent for the Netherlands, that the coastal
fronts of Denmark and the Netherlands have again been rnateriaIly changed,
both of them having been turned further inwards towards the North Sea. The
Court will remember how these lines were very carefully described during the
Grst presentation where the Danish line was running true north, intersecting
the coast quite near to the place where the coast disappears from diagram 5.
Now it cuts only through a very small part of the Danish mainland.
Regarding the Netherlands, the position is even more apparent. It was
originally indicated, during thefirspresentation, that the line would run to the
lSeeNo. 49, p. 390, infra.REJOINDEROF hm. JACOBSEN232 NORTH SEA CONTINENTAL SHELF
bend in the Netherlands-British equidistance line, which can be seen at the left
bottom corner of the diagrarn, thus cutting through a considerable part of the
Netherlands. Now, on diagram 5, it is whoily placed in the North Sea.
Now, Mr. President, we have no diagram showing the intersection of the
boundary lines within the concept of continuation as expressed during the first
presentation, and with the two diEerent coastal fronts running the Danish more
to the norîh-east and the Netherlands more to the south-west. As the coastal
fronts wereafter al1onlyshown with a pointer on the map on the wall l,wehave
not thought it proper to present a diagram showing the delimitation lines in
this situation. But we have, by ourselves,gone through it and we agree that, as
was qüite apparently the point of the leamed Agent for the Federal Republic,
the boundary lines would in that case intersect roughly in the tripoint which is
the real corner-stone of the position of the Federal Republic.
It now follows from the simplest geometry that when the Danish and the
Netherlands coastaI frontages are turned inwards, the intersection point must
move nearer to the coast. The result is the one we have shown in figureA (see
p. 231, supra), amplifying the original diagram 5.
Although the learned Agent for the Federal Republic did not, with one word,
mention this very considerable discrepancy between the proposals which he
put forward at two different stages of the sarne oral proceedings, he must, of
course, have been fullyaware ofthisfact al1the time. Why then has this change,
which completelydestroys the concept of geometrical delirnitationthrough con-
tinuation, taken place?
1feelentitled to try to givethe reason because to me it seemsquite apparent.
When the learned Agent had the diagrams prepared, which were necessary in
order to answer the questions from the Court, he discoveredone fact about the
delimitation lines which made it imperative for him not to show these Iines in
any diagram which had any relation ta the continuation concept.
In this situation the Federal Republic had to speak of something other than
geometrical deiimitation and then the learned Agent came upon the idea of
completely omitting any graphic reference to the lines of demarcation, which
he was in fact going to show when answering the Court's question, and again
switch his case to a completely new concept. This became what he calls "the
quantitative standard of evaluation" as shown in diagram 5, consisting of five
areas with different numbers of square kilometres.
This had never before ken as much as hinted at. This completely new ap-
proach made it necessary to change the directions of the continuations in order
that the final result came as near as possible to the area given in figure 6, and
originally in figure 21 of the Mernorial-the area of 36,700 square kilornetres.
As, apparently the Borkum-Sylt linecould not possibly be moved anywhere,
thelearnedAgent moved thecoastalfronts of Denmark and of the Netherlands
quite considerably, until the areas concerned showed approximately the ag-
gregate number of square kilometres wanted, 36,700.
Thus, it seemsquite clear that the areas givenin diagram 5emerge as a result
of careful movement of the lines of departure, that is, the coastal fronts of
Denmark and the Netherlands, movements governed only by the aim of
reaching a result already decided upon. Therefore they are of no consequence
whatever .
A fewmore words on this willsufice. The sum of these artificiallyconstructed
square kiIometres isused to prove that the area of the sector givenin diagram 6
is equitable. This diagram, which is taken from figure 21 of the Memorial, was
l Seefootnote 1 on p. 32, supra. RElOINDER OF MR. JACOBSEN 233
said to have been distributcd for the convenience of the Court, but it is cer-
tainly also for the convenience of tlie Federal Republic, for it leaves out the
numerical indications of the correspctndingareas for Denmark and the Nether-
lands, which can befound in figure 21 of the Mernorial.
Thus, it might be forgotten that -thearea of 63,700 square kilometres had
corne into existence as the a.llegedequitable resulof a proportionate division
based on the length of the coastal fronts.
When diagram 6 was presented, these coastalfronts had been changed twice,
to an extent that makes theïn unrecognizable. The area of 36,700 square kilo-
metres, therefore, is now without any meaning.
The Court, undoubtedly, at this stage would like to know what was the fact
which must have made the learned Agent for the Federal Republic resort to
this new change of position.
It can be seen from figureA showing the lines of intersection drawn in dia-
gram 5. These two lines are simple iind ordinary equidistance lines, when the
three coastalfronts are taken asthe a:rtificialbaselinesfrom whichthe boundary
lines are constructed. This j~ollowsof necessity from the fact that these lines
can be drawn only as the bisectors of the overlapping areas, being at the same
time bisectors of the angles between the respective coastal fronts.
The Court willeasily beable to ast:ert;iinthe existenceof equidistance by the
simple use of a pair of dividers on figureA. The result is a simple consequence
of the laws of geometry, antl the resiilt would be exactly the same whether the
so-called Danish and Netherlands coastal fronts were swung outwards or
inwards on their contact points with the German coastal front. And this result
therefore also applies to the situation regarding continuation from coastal
fronts, which the learned Agent prclposed during the first hearing, when the
coastalfronts were somewhat farther out to the north and to the west.
The fact which the learned Agent. became aware of when making out the
diagram necessaryfor answeringthe Court's questionwas,simply,that through
al1his movernents through the realm of equitable division he had ended up in
giving a delimitation, being exactly i.hat which, according to the fundamental
position taken by the Federal Republic, is unacceptable. It was a lateral equi-
distance delimitation of considerable areas of high sea.
Now, this fact to our mind completely shatters the basis for the Federal
Republic's caseas a whole, and, apparently, the Iearned Agent was of the same
opinion. Otherwise he would hardly, during the second presentation, have
changed his whole approach from geometrical delimitation to delimitation
based on a quantitative standard of'evaluation, letting himself be forced, in
doing so, to once more mziterialIy change the direction of the so precious
coastal fronts.
This operation, seen as a whole, h:ld one result, and one resuIt only, that of
not showing the lines of delimitati'on, with the effect that the intersection
seerned to take place in the point indlicatein diagram 6.
The Court rnay have noticed, with perhaps some astonishment, that the
learned Agent twice, on page 186 and page 190, supra, of the record for the
ninth day, stressed very strongly that the coastal front is not a geometrical
baseline on the basis of which boundaries should be constructed. Now this can
be understood. The intention was that we must not look at the relation between
the coastal fronts and the ensuing boundary lines.
But no one can deny that the boundaries are constructed on these lines as
beingthe starting linesfor th(:three ccintinuations, and that the actual boundary
lines will be found as the bi:sectorsof the overlapping of these continuations.
Therefore, it is highly relevant to see the boundary lines in relation to these234 NORTH SEA CONTINENTAL SHELF
all-decisive coastal fronts. And in doing so, we find equidistance pure and
simple.
1 now have to leave, for one moment, the general aspects to deal with one
special thing.
The point so strangely made by the learned Agent, that the coastalfronts are
not baselines, has, however, relevancein two contexts. 1 shaIl touch upon one
of them hère.The other one is decisive as regards the scheme of the learned
counsel, Professor Oda.
If one looks at the Danish coastal front in diagram 5,it wilI be seen that it
cuts off a very small part of the Danish territory, roughly the coastal con-
figuration called Blavandshuk. To any unbiased observer, this would give the
impression that the Federal Republic is considering this configuration as a
special circumstance and is therefore cutting it off and substituting a new and
better baseljne, as we have described it wjth regard to peninsulas.
The very strong assertions by the learned Agent that these lines were not to
be considered as baselines, is, 1think, a clear indication that he does not invoke
anything of this kind.
To avoid any misunderstanding during the considerations of the Court, 1
have a few comments on this possibility of misunderstanding the alleged
Danish coastal front.
In the Danish Counter-Mernorial, paragraph 142-the Netherlands Counter-
Mernorial, paragraph 137-it was expresslysaid that the shores of both coun-
tries are "more or lessstraight with only the most normal small protrusions in
the coastline". Blavandshuk might be consideredone of those protrusions. Xt
was said in order to make the Federal Republic corneout with an explanation as
to whether the innumerable referencesto projecting points had relation to any
possible specificcoastal configuration onthe Danish or onthe Netherlands coast.
In the Reply nothing of this kind wasasserted. On the contrary, in figure 5,I,
page 430, the Federal Republic depicted the situation in a partly abstract
diagram which clearly excluded the existence of any projecting points on the
coasts of Denmark or the Netherlands.
During the oral proceedings,as 1have pointed out, the Agent forthe Federal
Republic severaltimes quite clearIy declared that the two equidistance bound-
aries, if seen in isolation, are perfectly normal and proper. As 1have indicated,
this can mean only one thing, narnely that on the coasts of Denmark and the
NetherIands no special configuration exists which can by itself-and apart
from the so-called cutting-off effect, which is something quite different-be
considered as a special circumstance.
Tt shouId be added that this configuration, Blavandshuk, is the base-point
on the Danish side for the end-point of the boundary near the coast agreed
upon by treaty. This can be seen from the German Memorial, paragraph 18,
in which is quoted the joint press communiqué,issued after the agreement,
explicitly stating that the end-point is equidistant from Kap Blavandshuk in
Denmark and the island of Sylt in Germany. The actual communiquécan be
found in the Mernorial, 1,page 115.
And as the Court wifl recall, the Federal Republic in the Reply, when dis-
cussing the possibIe legal consequences of the two boundary treaties near the
coast, in paragraph 30 expressly states that as far as these delimitations reach
out to sea, they were not yet influenced by the special configuration of the
coast so much as to cause an inequitable result.
So, in this case, where so much has happened, the Federal Republic has
explicitlydeclared that Blavandshuk as a base-point for delimitation according
to equidistance is perfectly equitable. RIZJOINDER OF MR. JACOBSEN 235
Mr. President, 1 ask the court for forgiveness for having spent some time
on this apparently-minor point. But, as diagram 5 is made there is undoubt-
edly from the diagram-though certainly not from the learned Agent'sside-a
possibility of a misunderstanding.
When questions of mathematical delimitation are treated in the way in which
they are treated by the Federal Republic, making constant changes of al1the
elements of the considerations, suc11possibilities of misunderstanding are apt
to creep in.
1 shallnow, Mr. Presidei~t,reveri:to the main Iineof my argument.
What 1 have said regarding the scheme of the learned Agent in the second
phase should reallybe enov.gh,but for the sake of good order Imust say a few a
words regarding the scheme of the learned counsel, Professor Oda.
According to what was srnaid during the last day of the second presentation
for the Federal Republic, it was apparent that there is a differencebetween his
scheme and that of the learned Agent, which 1 have had to explain so elabo-
rately.
The learned counsel cleai'lydecIared that he used the Borkum-Sylt line as a
baseline for drawing boundaries. On page 196, supra, in the record for the
tenth day, he said that he was not so much concerned with what scheme of
delimitation might beused. But th12only scheme he then mentioned was the
equidistance principle.
It should here be mentioned that the learned Agent emphatically had de-
clared that the coastal fronts, no matter how they were considered, were
certainly not baselines on which to draw demarcation lines.
Furthermore the learned counsel clearly said that he was basing himself on
considerations different frohnthose of the learned Agent.
As to the difference in 1-esults,riothing was said, but 1 shall later briefly
revert to that.
So far there apparently iia case Ixtween the learned Agent and the learned
counsel. Considering the Ir:galrelation between these two learned represen-
tatives of the Federal Repu!lic, it nlight be considered unnecessary to go into
further considerations regarding Professor Oda's scheme. This case. however,
has now been enveloped in so much obçcurity that 1think it is up to us, as far
as we can, to clarify the points which have corne up.
1seeno need to go into the 1earne.dcounseI'sdiscussionsregarding the devel-
opment of the concept of baseline:;. I have understood the situation to the
effectthat the rules of baselines as contained in the Geneva Convention on the
Territorial Sea and the Contiguous :Zoneare considered expressionsof general
international law as this had developeti in the years before the Geneva Con-
ference, especially through this Court's decision in the Norwegian Fisheries
case-at least 1understood that PrclfessorOda was of that opinion and Ishall
not contest it.
Professor Oda's point wa.sthat tfie aim of the concept of straight baselines
is to neutralize indentations-which is true. He contended that the Borkum-
Sylt line might be considered a legitimate evolution from this general under-
lying idea, and he based hiisthoughts on the fact that Article 4, paragraph 1,
of the said Convention does not giv~rany limitation as to the length of a base-
line.
The learned Agent for the Netherlands has, today, commented on the pos-
sibility of letting the rules cifthat Convention end up in the Borkum-Sylt line
and 1do not think 1 have atiy reason to add to what has been said.
1 shall here at this point just unddine again that the learned Agent for the
Federal Republic has twice emphatically declared that the coastal front is not236 NORTH SEA CONTINENTAL SHELF
a baseline. And he has in his earlier acceptance of the two true equidistance
lines laid down by Denrnark and the Netherlands, the lines on the map, when
seen in isolation, firmly subscribed to the ordinary concept of baselineswith
regard to the Gerrnan coast.
On this background the learned counsel, although not binding himself,
invoked simplyan equidistance delimitation based on the Borkurn-Syltline and
the Danish and Netherlands true coasts, as they really are, and not in the
version of coastal fronts. By doing this he has, in the same way as the iearned
Agent for the Federal Republic with his different continuation schernes, fun-
damentally invalidated the position of the Federal Republic as to the inappli-
cability ofthe useof the equidistance principle inthe two cases before theCourt.
The simple positions of the learned counsel and the learned Agent are that
the learned counsel invokes equidistance on the so-called coastal front of the
Federal Republic and on the actual coasts of Denmark and the Netherlands.
The learned Agent has ended up, in fact, in invoking equidistance on the basis
of al1three coasta1fronts.
Both have, after the long way we have gone in these two cases before the
Court and always being confronted with the assertion that equidistance is
inapplicable in tkis situation, ended up in equidistance onlyon changed geog-
raphy.
Both the learned Agent and the iearned counsel, Professor Oda-Professor
Oda in fact did something to this effect+ould be imagined to assert that they
are within their own main position regarding equidistance.
It has been asserted, time and again by our opponents, that the reason for
the principle of equidistance king inapplicable here is that special coastal
configurations influence the equidistance lines too strongly, as this line moves
outwards into the sea. And they may say that they have both, to varying
degrees, ironed out such configurations and that therefore they should be
entitled to use the equidistance principies wholly, or partly, on coastal fronts.
But it should here again be rernernberedthat the learned Agent has explicitly
agreedthat the Danish-German coast line and the Netherlands-German coast
line are cornpletely proper for constructing an equidistance line when seen in
isolation.
It istherefore admitted in advance that special circumstances influencingthe
equidistance line, or even special configurations influencing the equidistance
line, do not exist, and there can be no grounds whatever for considering the
equidistance principle more applicable on the lines chosen by the learned Agent
and the learned counsel than on the actual and proper coastlines or base-
lines.
The whole argument, when seen in its true context, has been concentrated
upon the onIy thing which was not said, that the geography is not satisfactory
andthe geography should be changed.
The point has been reached, 1 believe, Mr. President, where 1should try to
sum up the quite considerable number of possible boundary lines now to be
found in what the Federal Republic callsthe south-eastern corner of the North
Sea.
If the two proposed boundary lines between the Federal Republic and
Denrnark, and the Federal Republic and the NetherIands, are seenas a result in
combination, they will generally form a triangle or an approximation of a
triangle. I thin1 rnight illustrate the situation and shorten the presentation by
mentioning the different boundaries proposed simply as triangles.
First we have the innermost triangle, consisting of the equidistance bound-238 NORTH SEACONTINENTAL SHELF
tance triangle and the sides of the learned counsel's floating triangle must be
increasing as the two triangles move out into the North Sea on somewhat
diverging courses. But there must, by the laws of geometry and logic, be a
difference from the very beginning and this means, in simple words, that ac-
cording to Professor Oda's scheme, the boundary iines which he invokes must
be north of the treaty boundary between Denmark and the Federal Republic
near the coast and west of the Federal Republic-Netherlands treaty boundary
near the coast, or,in any event, on the wrong side of one of these boundary
lines.
The learned Agent did, with regard to his triangles, make provisions for this,
The learned counsel, whose schemeisopenly declared to be in opposition to
that of the learned Agent, certainly did not.
This means that apartfrom anything elsewhichhas regard to Professor Oda's
triangle, it is manifestly for a considerable part, a part nearest to the coast,
outside the two special agreements which have regard to the continuation of
the treaty boundaries, and in conflictwith the two existing treaties, the validity
of which has not been contested.
It rnay perhaps be supposed that the learned counsel has left the task of
solving this problem to the discretion of the Court. I shall, therefore, just
mention that if the Court were to consider a solution of this problem by com-
pressing Professor Oda's triangle, it should be remembered that there is an
indefinite number of possibilities of connecting the two end-points of the two
treaty boundaries with lines running respectively north and west of these
boundaries. It should also be remembered that the deposits found on the
Danish continental shelf are placed very near to the equidistance boundary.
Therefore, a solution by the Court of this problem, which Professor Oda has
left completely hanging in the air, might be of a practical and economic im-
portance which far exceeds any other problem in the case between Denmark
and the Federal Republic.
This is, Mr. President, apart from one singlequestion to which 1shalIrevert,
the case for the FederaI Republic. It ion these clear and constant contentions
that the Federal Republic asksthe Court to indicate the principles and rules of
international law which should militate in favour of the Federal Republic's
setting aside the equidistance boundaries and getting some other boundaries,
whatever these may be.
The Court rose ut I p.m. RWOINDER OF PdR.JACOBSEN
TWELF7E-IPUBLIC H:EARING (8 XI 68, 10 am.)
Present: [Seehearing of 23 X 68.1
Mr. JACOBSEN: Are there any other assertions bythe FederalRepublic than
those which 1 discussed yesterday?There is the simple assertion contained in
the Reply, paragraph 83, that the geclgraphicalsituation consistingin the bend
in the German coastline is"certainly specialenough" to cornewithinthe special
circumstances clause of Article 6, paragraph 2, of the Convention. The asser-
tion was repeated by the learned Agent for the Federal RepubIic in his very
last address-the record for the ninth day on page 175,supra.
One might perhaps expect that this invocation of the clause would lead to
some considerations regardi~igthe Bsrkum-Sylt line, but that is not the case.
On the contrary, the learned Agent aindthe learned counsel, who on this point
are in complete agreement as to the n:sult, even if not as to the reasons for this
result, have both emphatically and cLrarlyrejected any possibility as ro basing
any consequence of the spec:iaIcircumstances clause being applicable on the
Borkurn-Sylt Iine.
As 1have mentioned, the 11:arnedA.gent has twiceemphatically declriredthat
coastal fronts are certainly not baselines from which to construct boundary
lines. Furthermore, the result he invt~kesof the clause being applicable is the
so-called sector stretching to the tripoint mentioned so often, andhe does not
in any way consider this a boundary delimitation constructed on the Borkum-
Sylt line. This sector is his understanding of the resofthe concept ofthe just
and equitable share, no matter how this concept may be filled out with the
different considerations 1 have been going through.
The learned counseI, Proft:ssor Oda, did not want to declare what kind of
boundary demarcation he would make Liasedon the Borkum-Sylt line. But it
was crystal clear that al1those considerations regarding the Borkum-Sylt line
as suchhad regard only to the:general concept of straight baselinesas expressed
in the Geneva Convention on the Territorial Sea and the Contiguous Zone.
He positively refrained from ilsmuch as irnplyingthat this line, on which he, in
contrast to the leamed Ageni:,based lnisspecificcase, has anything to do with
the special circumstances clai~se.
Both the opposing Agent and courisel thus having clearly declared that the
Borkum-Sylt line cannot have any relevance to, the special circumstances
clause, 1 must feel rnyselfexcluded £rom commenting on this question.
We have now the quite general assertion by the leamed Agent that the bend
in the German coastline, or, another expression used, the cutting-off effect,is
as such a special circumstance, We have,as 1foresaw in my first address, this
assertion without even an att,cmpt to indicate the other boundary line justified
in any possiblerelation to the circumstances invoked.1hereby takeit forgranted
that a construction as the one shown in diagram 6, and sustained bythe various
reasons which 1 have had to go through, could not be considered the other
boundary line justified within the meaning of the Convention. This means that
the Federal Republic leavesit entirely ;totheCourt, without the leastindication,
to find out what might be the consequence of the clause of special circum-
stances possibly being applicxtble.
In considering whetherthe bend in the German coastline is a speciaIcircurn-
stance justifying another bouridary lin^, ithin the meaning of the Convention,240 NORTH SEA CONTINENTALSHELF
the first and perhaps the most important factor is to decide what is the proper
approach to this problem. What factors in this situation are the ones which are
characteristic from a legal point of view?
To our rninds, the legally decisive factor is that the special circumstances
clause in each of these two case? is invoked by the Federal Republic while in
the same breath the Federal Republic openly and clearty admits and agrees
that each of the two equidistance lines, seen by itself as a shelf boundary be-
tween the Federal Republic and each of the two States, is perfectly proper and
correct. This is not a legal characteristic--or attached especially to the geo-
graphical situation athand. Exactly the sarneproblem willexist in anumber of
other geographical cases wherethe equidistance line in itselfisquite correct and
proper and not contaminated by any special circumstance.
May 1 here again refer the Court to the diagram figure 1 in the Danish
Counter-Memorial, 1, page 200. Here again, each equidistance line is correct
and proper and uninfluenced by any special circumstance. But the general
geographic situation causes the equidistance areas to the three States lying
beside each other not to be proportionate.
Wehave, basing ourselves on our understanding of the special circumstances
clause,maintained that this clauseisinapplicable aswellinthe situation depicted
in figure1,as in the two casesat hand, because it could never be.justified, in the
words of the Convention, to change these proper equidistance lines and take
away from any of the States involved continental shelf areas quite normally
accruing to each of those States. That is our main contention regarding the
clause of special circurnstances.
If the Court, in these two cases at hand, might not accept that understanding
and give the Federal Republic sorne degree of compensation from Denmark
and the Netherlands, beingcompensation for the general geographicalsituation
betweenthe three States, what would then be the result in the case as shown in
figure l? The necessary result rnust, as far as1 can see, be that Middleland
should have compensation as well.
Where should that compensation be given?Should it be.taken from North-
land by a diversion of the median line so highly respected by the Federal
Republic? Or should it be given by changing the direction of the two equidis-
tance lines towards the two adjacent States, Leftland and Rightland? 1hardly
think either could be the result, and if ansuch diversion weremade 1think it
could be properly said that this would be a decision ad hoc ex aequo et bono.
It now, of course, could be contended that the consequences with regard to
an imaginary geographic situation, as shown in figure 1, is without interest.
But, Mr. President, this situation is not imaginary. Figure1 is, in fact, a sim-
plifieddemonstration of, for instance, the situation of Belgium,which can now
be seen on the map on the wall, France being Leftiand, Belgium Middieland,
the Netherlands Rightland and the United Kingdom being Northland.
Belgiumhas, as it has been shown inthe written proceedings,so far staunchly
adhered to the principles of the Convention of which she is, however, not a
member. Belgiumapparently does not believethat it could bejustified to change
ordinary and correct equidistance lines, and Belgium has proceeded with the
preparation for her delimitation of the continental shelf on this understanding,
which is exactly the sarne understanding as ours.
But, Mr. President, Belgium has not yet forrnally concluded a procedure of
delimitation. The preparations have been going on although the Belgian
Government, of course, is aware that Belgian interests, if seen as interests only
and not as legal convictions, are parallel to the position taken by the Federal
Republic. REJOINDER i3F MR. JACOBSEN 241
If the Court rnight decide in favour of'the Federal Republic, it could hardly
be expected that the BeIgian Governinent should not reconsider its position, it
being then established that Belgium, just as, in that case, Denmark and the
Netherlands, had been wrong in he.r understanding of the applicable inter-
national law.
Then the question of revision wouildbe raised by Belgiumand the problems
as they were shortly described based on figure 1 would necessarily arise. And
this,Mr. President, would bc the case in the North Sea itself.
How then would it be in the worltl as a whole?If the learned counsel, Pro-
fesser Oda, as the record forthe third day, page 61, supra, states, were right
that unilateral delimitations made b:yS~atesmight weIl be changed later on,
then Iraq must necessarilyraise the question of revision as well, and there will
be a number of other cases.
1have rnentioned these other bouridaiy questions because, as far as we can
see, they illustrate the relation betwetma decision based on law ana decision
ad hoc. We think that what the Federal Itepublic asks is a decision ad hoc, but
the decision given by this Court wiltiyany State in the world be considered as
a decision based on law.
The decision must therefctre be given on legal considerations which have
regard not to what is the more or less incidental geographical configuration,
which differsfrom caseto case, but to what are the true, legal characteristics of
the problem presented to the Court.
Seen in the light of these legal chairacteristics,the question presented to the
Court is, to Our minds, sirnply wheirher ordinary and accepted equidistance
boundaries as between two States tanbe put aside because a general geo-
graphical situation which ha:;no beaiing upon the equidistance boundaries by
themselves causes a lack of proportionality in the result. And that is in essence
the question, whether another boundary line is justified.
If the probfein is viewed iti this light, there should be no possibility of cor-
recting the Danish-German or the Giernian-Netherlands equidistance bound-
aries and, of course, as a consequence,no possibilityof setting aside the Danish-
Netherlands equidistance boiindary.
STATEMISNT BY' PKOFESSOR ODA
COUNSEL FOR THE COVERIdMENT 01' THE FEDERALREPUBLICOF GERMANY
Le PRÉSIDENT: M. leprcifesseurOda désirefaire une brèvedéclaration.Je
pense que MM. Ies agents (lu Royaume du Danemark et du Royaume des
Pays-Bas sont d'accord.
Professor ODA: Mr. Presiclentand Judges of the Court, the learned Agents
for our opponents were kind enough to give me the opportunity to clear up a
misunderstanding by the learned Agent for the Kingdom of Denmark as to
what 1 have proposed as bases for the delimitation of the continental shelf
boundaries. 1 did not Saythat the actual coasts of the Kingdom of Denmark
and the Kingdom of the Netherlands should be taken as bases in addition to
the Borkum-Sylt line. Rather, 1have thought that, consistent with myapproach,
the coastal façades of the Kingdom of Denmark and the Kingdom of the
Netherlands are the proper bases, as indicated in Ourmap No. 5 (p. 189nipra).242 NORTH SEA CONTINENTAL SHELF
REJOINDER OF SIR HUMPHREY WALDOCK
COUNSEL FOR THE GOVERNMENTS OF DENMARKAND THE NETHERLANDS
SirHumphrey WACDOCK: Mr. President and Members of the Court. Asthe
learned Agent for the Netherlands inforrned the Court, it falls me to state
our answers to the three questions put to the two Governments by Judge
Sir Gerald Fitzmaurice. These questions concern three separate issues raised
in the present cases1hope, therefore, that it mabe convenient to the Court if
1 answer the three questions successivelyand add, in connection with each of
them, some observations on the issues to which they relate. 1 shall then pro-
ceed to the main part of my argument in which 1propose to examine rather
more closely the bases and the implications of what I may cal1 the equitable
case presented to the Court by Our opponents.
1nowaddressrnyself,therefore,toJudgeSir Gerald Fitzmaurice's firstquestion.
In answeringthis question the two Governments feelthat they should first make
quite precise their position in regard to the effectof the 1958Convention. They
have not maintained that the Convention embodied already received rules of
custornary Iaw in the sense that the Convention was merely declaratory of
existing rules. Their position is rather that the doctrine of the coastal State's
exclusiverights over the adjacent continental shelf was in process of formation
between 1945 and 1958; that the State practice prior to 1958 showed funda-
mental variations in the nature and scope of the rights claimed; that, con-
sequence, in State practice the emerging doctrine was wholly iacking in any
definition of these crucial elemenasit was also of the legal régimeapplicable
to the coastal State with respect to the continental shelf; that the process of
the definition and consolidation of the emerging customary Iaw took place
through the work of the International Law Commission, the reaction of govern-
rnents to that work and the proceedings of the Geneva Conference; that the
emerging customary law, now become more defined, both as to the rights of
the coastal State and the applicable régime,crystallized in the adoption of the
Continental Shelf Convention by the Conference; and that the numerous
signatures and ratifications of the Convention and the other State practice
based on the principles set out in the Convention had the effectof consolidating
those principles as customarylaw.
We doubt whether, in the circumstances, any great significance attaches to
the presence in the High Seas Convention, in contrast with the Continental
Shelf Convention. of a vreambIe recitine. the desire of the Conference to
"codify the rulesofinternational law relathg to the high seas" and describing
the rirovisions of the Convention as "ae-erallv declaratorv of established
principles of international law".
The High Seas Convention did, for the rnost part, deal with long settled
principles, although it certainly contained sorne elements of "progressive
development" of the law as, for example, the introductian of the "genuine
link" in Article 5 and the definition in ArticIe 15of piracy in terms which con-
flicted with the law of piracy, as understood in common law legaksysterns.
The Territorial Sea Convention, which was also in considerable measure a
codifying convention, dealt withanumber of matters where there was a Iarger
element of controversy or of progressive development than in the case of the
High Seas Convention.
The Continental Shelf Convention, as 1 have indicated, dealt with emerging
but not yet fully fledged custornary law of very recent development.
The Fishing and Conservation Convention was essentially legislative in RWOINDER OF sw HUMPHREY WALDOCK 243
character, being concerned .withthe introduction of newlegal régimeson these
matters.
In short, in terms of codification strisensu the High Seas Convention was
on a somewhat higher plane than any of the other conventions; so much so,
Mr. President, that the question was even mooted at the eleventh plenary
meeting on 23 April 1958 as;to whether the articles on the high seas should be
cast in the forrn of a "declaration" or of a Convention. This question was
resolved by deciding to indude thr: preambular clause referred to in Judge
Fitzmaurice's question.
Neither the Territorial Sea nor the Continental Shelf Convention contains
any preamble and the reason seems to be simply that the question was never
raised in the relevant cornmittees of the Conference.
The Fishing and Conservation Convention, on the other hand, which was
essentially legislative in intention, did include a preamble which reAectedthe
legislative character of the Convention.
Thus, so far as prearnble:;are coricerned,the Territorial Seaand the Con-
tinental Shelf Conventions stand mid-way between the codifying High Seas
Convention and the legislating Fishing and Conservation Convention and we
do not think any veryfirm ccinclusio~ic;inbe drawn from the contrast between
the High Seas and the Continental :ShelfConventions on this point.
In passing from this point, 1may perhaps be permitted to point out that the
codifying High Seas Convention itself, in Article 26, refers expressly to the
right of the coastal State to explore and exploit the continental shelf and that
it does so in connection with cable:; and pipelines, one of the rnatters dealt
with in Article 4ofthe Continental Shelî Convention and with regard to which
reservations are authorized under Article .12 of that Convention.
A second point raised by Judge Sir Gerald Fitzrnaurice in connection
with the first question is the significanceto be attached to thefact that Article
1 of the Continental Shelf Conventicinii:selfopens with the words: "For the
purposes of these Articles..."
Here again, we doubt whether the point can throw any clear light on the
character of the Convention as decla.ratory of already received law.
In the first draft on the continental shelfadopbydthe Commission in 1951,
the definition in Article 1 aas prefaced by the words "As here used" which
Professor Hudson seems to have th.ought would indicate the "provisional"
character of the definition. That is iii the Yearbookof the Commission 1951,
Volume 1, page 270.
In 1953this phrase was changed to "Asused in these articles" but the records
do not show the reasonsfor what seemsto have ben a purely drafting change
(Yearbook 1953,Vol. II, p. 212).
In 1956a further change was made to the first formula, but there is again no
indication in the records of why thiswas done. Even so, Mr. President, para-
graph 65 of the Commission's Report for 1953appears to give a clue to what
was in the mind of the Commissionwhen it prefaced Article 1with the words
in question. Having explaineti in the previous paragraph of its Report that this
Article was now so formulated as not to limit the exclusiverights of the coastal
State to the continental shelf in the gt:ologicaIçense,but to extend them to the
limit of exploitability, the Ccimmissiancornrnented:
"While adopting, to that extent, the geographical test of the continental
shelf as the basis of the juridical concept of the term, the Commission in
no way holds that the existence of the continental shelf in its geographicaI
configuration as generally underijtood, is essential for the exercise of the
rights of the coastal Staie as defined.in these articles."244 NORTH SEA CONTINENTAL SHELF
In short, recognizing that it was using the term "continental shelf" in the
Articles as a Iegalterm of art not conforming to its generallyaccepted meaning,
the Commission guarded itself against criticism by the words "As used in these
articles".
In any event, Mr. President, the insertion of words such as "for the purpose
of the present Convention" is quite normal in conventions drafted by the
Commission, including such eminently codifying Conventions as the Vienna
Convention on Diplomatic and on Consular Relations, and this is true also of
the draft Convention on the Law of Treaties. The reason is that terms used in
the general law-making conventions may be found used elsewhere-ither in
other treaties or in interna1legislation-with a somewhat differentmeaning and,
as a result, it might prejudice the possibility of some countries ratifying the
Convention if the definition clause in the Convention were to have automatic
eKectson the interpretation of other instruments.
1have completed Ouranswerto Judge SirGerald Fitzrnaurice'sfirstquestion,
Mr. President. Butinconnection withit 1shouldliketo Sayaword aboutthe con-
tention of our opponents on page 56, supra, of the third day'srecord, that the
sectionsofthe Convention dealingwiththedelimitation ofboundaries were"new
and did not reflect customary law existent at that time", On this basis, we do
not seehow our opponents canjustify their recognition ofthe determining effect
of the signatures of the Convention in establishing as customary law the exclu-
sive right of the coastal State as definedin Article1, 2 and 3.
The Federal Republic in its memorandum to the Fourth Cornmittee denied
absolutely the existence of any such customary right. At the Conference, if the
Commission's draft of Article 6, which had already been found generally
acceptable by governments in their comments to the Commission, was the
subject of some discussion, it passed through the Fourth Cornmittee without
any very great difficulty. But Articles I and 2 were the subject of prolonged
discussion and controversy. The idea that the definition of the doctrine of the
continental shelf in Articles 1 and 2 was already cut-and-dried customary
law instaiu nascendiin 1958simply cannot be accepted.
The external limit of the continental shelf, the character of the sovereign
rights and the categories of natural resources comprised inthose rights were a11
matters of keen controversy at the Conference itself,In our view,therefore, the
attempt of our opponents to make a sharp distinction between Articles 1-3and
Article 6 ofthe Convention, in regard to their status as embryo customary law,
is quite unjustified.
In the same way, on page 198, supra, of the tenth day's record, we were a
little surprised to hear our opponents pointing to the problem of the deep ocean
and to the fact that the Convention contemplates its possible revision after five
years as indications that the continental shelfis not an already fixed or com-
pleted concept. We weresurprised because the deep oceanproblem concerns the
extent of the exclusiverights of the coastal State as definedin Article1 and 2,
which they themselvessay has crystallized as settled customary law. We were
alsopuzzled asto the relevanceofthe Revision Article sincethis Article appears
also in the High Seas Convention, a codifying convention admittedly declara-
tory of customary law.
I do not think that at this stage of the case the Court will wish me to Say
very much about the State practice, whichhas already been fairly wellexplored
and the implications of which it is for the Court itself to appreciate. 1shall
therefore touch only briefly on a few matters raised by oür opponents.
One is the argument of the learned Agent on page 202, supra, of the tenth
day's record, advanced by no means for the first time, that the several agree- RFJOINDER OF SI!<HtlMPHREY WALDOCK 245
rnents betweenStates in the North S,ea,and elsewhere, based upon the equidis-
tance principle, are not sufficient p.roofof the recognition by States that the
equidistance method is the only rule. We pause for nearly the hundredth time,
Mr. President, to say that il:is the equidistance-special circumstancesrule, not
the equidistance method, which is in issue before you. We cannot accept for
one moment that treaties in which tlie Parties have automatically had recourse
to the principles expressed in Article 6 of the Convention are no evidence of
opinio juris.Whether the delimitations have been the subject of no dispute, or
whether they have represeiited a compromise between confiicting points of
view, they have been made under the régime ofthe principles in Article 6 and
on the basis that those pririciples a:rein the words of the Statute, "generally
accepted as law", and this Lis beenso whether or not the States concerned were
parties to the Continental Shelf Convention.
Our opponents even go so far as i:osuggest that we have shifted Ourweight
from agreements to unilateral acts. We can assure them that this is by no
means the case, we have merely sought to underline the significance ofcertain
unilateral precedents which they haclsought to minimize.
The learned Agent was, vclethought, rather sweeping when he said that the
only relevant cases are Belgium and Iraq, for the generaI relevanw to our
argument of such unifateral acts as i:heSoviet Union's Decree,the Australian
Petroleum (Submerged Lands) Act and the Kuwait Concession would seem
evident.
Let us, however, look for a momeilt at the two cases which even the Federal
Republic considers relevant. As to Iraq, the learned Agent said on page 175,
supra, of the ninth day'srecord that the map shown in thecornmon Rejoinder,
1, page 502, "has not yet leii toan officialact of the Iraqi Government to the
effectthat it accepts the boundary lirieas shown in that map". But does he not
overlook the fact that theIraqi Foreign Rfinistryon request transmitted the map
to the Danish Embassy undr:r cover of a Diplomatic Note of 22 August 1960?
However, the learned Agent also said that "according to information we have
got through diplornatic chaiinels thi: Iraqi Government has not yet taken a
final decision in view of the proceedings pending in this case".
We feel, Mr. President, that we tan safely leave the appreciation of that
information to the Court, Inore especially as our opponent was at pains to
stress that Iraq really has no basis for going back upon its claim. "The share it
would get under the equidistance method", he said, "is not disproportionately
srnaltin view of its coastat front."
Before going on to the case of Belgium, Mr. President, 1 would like to
interpose a brief word about the positioii of Kuwait, the cornpanion precedent
to Iraq. Learned counselfor the Federal Republic,on pages 199and 200, supra,
of the record of the tenth &iy, repeated his suggestion that Kuwait's position
in regard to her equidistancr boundiiry with Iraq is not final and he referred
again to certain overlapping conceiisions affected by the so-called Neutral
Zone. We cannot seethe relevanceof these latter referencessince they are only
an indication of the complications of the Neutral Zone boundaries and
of difïering points of view as to their eflects on the continental shelf delimita-
tions.
As to the Kuwait-Iraq boimdary, i:heCourt has before it an account of the
matter in paragraph 71 of the Rejoinder and the illustration of the Kuwait-
Shell concession boundary siiperimpcised.on the map in 1, page 502. 1can only
reiterate what ï said in my first speech.
According to my understanding, and it is clear and precise, Kuwait, in
regard to this boundary as in regard to al1her other boundaries, bases herself246 NORTH SEA CONTINENTAL SHELF
upon the principles and rules embodied in Article 6. Nor wilIthe Court fail to
appreciate the importance of those principles to any small State discussing
boundary probiems with a larger neighbour.
As to the case of Belgium, Mr. President, 1need not add very much to what
my learned colleague, the Danish Agent, has already said this morning about
this precedent and what 1 said myseIfin my first address. We submit that the
automatic recognition by the BelgianGovernment, when Belgiumherself is not
a party to the Continental Shelf Convention, of the application to Belgium of
the principles and rules embodied in Articl6, is extremely cogent evidence of
opinijouris on the part of Belgium in regard to those principles and rules.
Nothing, we think, could show more clearly the status of these principles and
rules as the generally accepted law than their automatic, almost instinctive
observance by this North Sea State which has been provided by nature and
history with so inconvenient a window upon that sea.
As a ha1 comment on this question I may perhaps be permitted to retum to
Ouropponents' argument that the principles and rules in Article 6weretoo new
in 1958to be now regarded as custornary law, and to make a brief comparison
betweenthem and the baselinerulescontainedin Articles3to 13ofthe Territorial
Sea Convention. Although these baseline rules certainly contain important
elements ofpre-existingcustomary law, they also undeniably contain some new
provisions, more especialiyin regard to bays. Delimitations made bona fidein
accordance with these new provisions have never, so far as 1am aware, been
questioned. In short, the effectof the Geneva Conference,as it was the purpose
of that Conference, was to consolidate and settie the law regarding baselines.
It is our contention that exactly the same thing happened with respect to the
principles and rules in Article 6, and that a delimitation made bona fide in
accordance with those principles and rules is prima facie valid eromnes.
1now pass, Mr. President, to Judge Sir Gerald Fitzmaurice'ssecond question.
This question asks whether, with regard to Ourcontentions as to the rneaning
to beattributed to the notion of adjacency,weare tobe understood as contend-
ing that:"a givenpart of the seabed, even if it is near the coastaoparticular
country, cannot beconsidered as adjacent to it unless it is closer to that coast
than to the coast of any other country".
We recognize, and the dictionaries confirm it, that the word "adjacent" is
one which isused with slightly differentshades of meaning in different contexts.
In some contexts, the word appears to be used in a sense identical with "con-
tiguous", as in the phrase "adjacent States" in paragraph 2 of Art6.In those
contexts the word "adjacent" concerns the actual contact between two areas
and the element of proximity is thus present in its most acute form. In other
contexts,as in the phrase "submarine areas adjacent to the coast but outsi...
the territoriasea" in Article1,and in the phrase "same continental shelf ...
adjacent to the territories of tw...States" in Article 6, the term "adjacent"
seems to be used as denoting proximity-a notion which is inherent in the
word-but proximity in a somewhat broader sense.
What we contend is that when the context becomes, as it does in Article 6,
paragraph 2, a question of determining the exclusive rights of each single
coastal State over the continental shelf adjacent to its coast, the proximity
criterion fundamental to the whole notion of "adjacency" necessarily cornes
into operation and identifies al1the area nearer to one coastal State than to
any other as adjacent and appurtenant to that State, and we say that this
interpretation also folIows irresistibly from the fundamental role played by
proximity in the general rules of international law governing the delimitation
of maritime boundaries. We further Saythat thisinterpretation findsexpression RUOINDER OF SIR HIJMPHREY WALDOCK 247
in the primary role given to the equidistance principle in the delimitation of
boundaries by Article 6.
In short, and subject to the qualii5cationwhich 1 shall now mention, we do
contend that, in determinitig the respective rights of any two States, a given
part of the seabed, evenif it is near the coast of a particular country, cannot in
law be considered as adjacent to it imtess it is closer to that coast tlian to the
coast of any other country.
The qualification, of course, contzrns the special circumstances exception;
and here 1 may perhaps at the same time deal with the argument of our op-
ponents, on page 170, supra, of the iiinth day's record,that the special circurn-
stances exception is incompatible with our contention in regard to the proxi-
mity principle. The learned Agent tkieresaid:
"It seemsrather doulitful whether the exception of special circumstances
could ever have been m,aintainetl,if mere proximity would already confer a
valid title to areas nearer to sorne point of the coast."
This argument seerns to us, &th respect, quite misconceived. On what basis
does the learned Agent him~elfnow refer to the special circumstances clauseas
an exception unlessit is that he now recognizesit as an exception to the general
nile that proximity in principle detei-rtiii~etshe appurtenance oa givenarea to
aparticular coast?
In truth, the very existence of tb: special circumstances clause is a confir-
mation of the generaI validity of the proximity principle in the operation of
Article 6.
The purpose of the clause was to provide for the possibility of correcting
"manifest hardship" resulting from the application of the proximity principle
where exceptional geographical featlires have the effectof divorcing altogether
the operation of the proximity principle from the realities of the geographical
situation. In those cases, as for example in the case of an insignificantislet out
to sea, the proxirnity principle still operates but by referento corrected geo-
graphical facts.The pull of the proximity principle, Mr. President, is constant
in the law of the sea. Even iEa small islet should have tobe Ieft out of account
in delimitingthe continental shelfof i.hemainland coast, the proximity principle
will still attract to that islei:its own,territorial sea and also, perhaps, raiae
question as to its rights in the continental shelf under subparagraph (6) of
Article 1.Asan illustration of the point which 1am making, 1really need do no
more than refer the Court to the Ttalo-Yugoslav delimitation shown in our
Cornmon Rejoinder, 1, pages 563-565, where these phenornena are illustrated.
In short, Mr. President, tliere is no question of incompatibility belween the
special circumstances exception and Ourcontention in regard to the role of the
proximity principle,there iScinlya question ofthe balancebetween theoperation
of therule and the operation of the ex.ception.And wethink that in the interplay
between the rule and the exceptioiothe principIe of proximity, or greater
nearness to the coast, operates in its character as a fundamental norm of the
law of the sea.
Our opponents did me tlie honoiir, Mr. President, of seferring to an early
lecture of mine on the continental skielfpublished in Volume 36 of the Grotius
Society Transactions in 1950, where 1 stressed that "bare contiguity" has not
ben accepted in international law a:a $ legal title to territory.
As the learned Agent scrupulously pointed out, this lecture was delivered
before the idea of the ipsojure rights of the continental shelf had been accepted.
In fact, the express purpose of the lecture was to draw attention to the extreme
variations in the unilateral claims being made under the banner of the con-248 NORTH SEA CONTINENTAL SHELF
tinental shelfand to the risks which these claims seemed to involve for the
freedom of the seas.
1ventured to issue a warning against too hasty acceptance of the newclairns
until the doctrine itself had been more clearly defined and limited. In that
context, 1analysed the various legal concepts apparently invoked in support of
the clairns-and stressed that "bare contiguity" does not in itself constitute a
legal title. Needless to Say,that is a point of view whic1 still hold.
But, as the learned Agent himselfseemedto appreciate, the position in regard
to contiguity changed fundamentally when the legal title of the coastal State
over the adjacent continental shelf was recognized. Once a general title to an
area is established, contiguity has always been recognizedas an element which
may indicate the extent and limits of the title. In another, earlier article, pub-
lished in the 1948British Yearbook of International Law, 1 had in fact myseIf
stressed the role of contiguity in indicating the scope and limits of an effective
occupation. Indeed, even on page 141 of the article to which our opponents
have referred, 1 stressed the importance of proximity-the particular relation
between the coastal State and the adjacent continental shelf-as an element of
"effectiveness" which might give support to claims to appropriate the adjacent
continental shelf in the context of the law of occupation.
At that date, Mr. President, it was not clear whether the new doctrine was to
be regarded as an extension of territorial sovereignty or as some special devel-
opment of maritime jurisdiction. Today the coastal State's right over the con-
tinental shelfforms part of the genera1law of the sea where,as we have shown,
the proximity principle isan inherent, fundamental norrn.
In concluding my observations on points relating to Judge Sir Gerald
Fitzmaurice's second question, 1 shouId perhaps refer to Professor Oda's
unusual experience inking able to inform the Federal Republic how it voted in
1958concerning Article 7 of the Fishing and Conservation Convention.
We, of course, accept what he says, but we doubt whether it changes in any
matenal respect the picture whichwe drew for the Court of the position of the
Federal Republic on the question of proximity at the Geneva Conference.
If the only evidence of the Federal Republic's opposition to Article 7 of the
Fishing and Conservation Convention is to be found in the Japanese language,
we doubt very much the existence of any real misgivingsregarding the proxi-
mityprincipleitselfonthe part of theFederalRepublic,more especiallyinview of
its own advocacy ofthat principlein its memorandum on the continental shelf.
Moreover, if it had expressed any such misgivings in connection with the
Fishing and Conservation Convention-a decidedly more controversial con-
vention altogether-that would only make more conspicuous the absence of
any such misgivingson thepart of the Federal Republic in connection with the
Territorial Sea and the Continental Shelf Conventions.
Iwill now turn to the third question. This question concerns what 1 may
broadly cal1 the equality of area points. We are asked whether there is the
following difference between "median" and "lateral" equidistance lines,
namely-and 1 now quote the question:
"That apart from the distorting effectsof rocks and islands, which can be
met by the application of the special circumstances exception, a rnedian
line, as its name irnplies, does in principle always giveto the States con-
cemed areas of the same size, within the limits of their common frontage
on either side of the median line, in the sensethat in each case the distance
from the coast up to that line will be the same for both, whereas lateral
equidistance lines often cause the areas thereby attributed to the States REJOINDEROF SIILHIJMPHREYWALDOCK 249
concerned to be of difkrent sixes in a way that cannot be accounted for
merely by the length of their respective coastlines."
Before dealingwith the ei~ualitypoint, 1propose to demonstrate very briefly
that the geometrical technicluesfor determining the course of a "median" and
a "lateral" equidistance lini: are prerisely the same. And, in this connectio1, .
will be asking the Court to refer to the diagrams which are before the Court
marked B, C and D.l
Now in both cases, that is in the median line and lateral Iine cases, the
technique is at any given place to .Endthe two nearest points on the coasts
concerned and to join thosi: two neiirest points by a straight line. This line is
then bisected by a perpendic.ularline whichgives the direction of the median or
lateral line until, at another place, two other points on the respective coasts
concerned intervene to influencethe line. Then the process is repeated and the
new direction of the line is ascertained and so on ad infinirum.
Now if the Court woulcl be good enough to glance at the first diagram
which is rnarked B (seep. 250, infra and which showstwo sets of straight line
coastsit willseethe point illustrated, ifadmittedly ina highlysimplified[orm.The
top set of linesshowsa median linebctweenthree differentversions of thecoasts
of Leftland and Rightland, LI and. Ri on the diagrarn are strictly parallel
coasts; LI1 and RI1 are coasts dive:rgiiigfrom each other at the same angle
from the perpendicular, and LI11and RI11are similar, but more widely angled,
diverging coasts. The median line marked MI, MII and MIl1remains the same
for al1three cases and this is because in each case the angles of the respective
coasts are the same and tlierefore give the same point of bisection for the
perpendicular ofthe rnedian line. The bottorn set of lines does exactlythe same
for "lateral" equidistance lines, here the straight coastlines are placed at three
different anglesas in the top set of liiies.The sametechnique is used, and it will
be seen that the result in teirns of the boundary is precisely the sarne.
This is, as 1have said, a highly siniplifiedpicture and, of course, it shows no
more than that there is no essential clifferencebetween "median" and "lateral"
equidistance Iines from the point of viewof "method". In this very simple case
the areas cut off by the median and la.teriilequidistance lines are strictly propor-
tional to the length of the coastline.
1would ask the Court now to move on to the second set of diagrams which
are marked C (seep. 251, infia)Here:the coastlines of one of the States, Right-
land,has a serni-circularbulge.For simplicity,wehave reduced theexümples of
coastlines to two instead of three. In each case, the coast of Leftland is straight
and the coast of Rightland, while ai:the sarne angle as the coast of Leftland,
has the serni-circular bulge.
Now the top set of diagraïns again illustrates the rnedian linesituation and it
shows that the assumption cinwhich the third question is based, is not in fact,
quite correct. If one takes thi:LI-RI situation, the bulgehas the effectof pushing
the median line towards Lel'tlandin a nwnner which results inunequal areas.
The actual figures are 46 per cent. to Leftiand and 54 per cent. to Rightland,
a difference of 8 per cent. If you take the angled, diverging coastlines in the
LII-RI1 situation, the figures are 44 per cent, and 56 per cent., a differenceof
12per cent.
1may add that this is far from being simply an artificial construction of ours
for the present purpose. Wt: have produced these figures for sirnplicity. Sub-
stantial buIgesinthe coast in median linesituationare by no means uncommon
and I willmention one concretecase ;atittlelater. Such bulgesmayalsotake the
See No. 49, p. 390, infra. t
NORTH SEA COi'ïïïNENTAL SHELFREJOINDER1OF sm HUMPHREY WALDOCK 251252 NORTH SEA CONTINENTAL SHELF
form of substantial offshore islands which cannot be disposed of as special
circurnstances.
Now by way of cornparison we have undertaken the same kind of exercise
for lateral boundaries in the lower set of diagrams. Here the bulge in the
LILI-RI11situation defiects the boundary to some extent, giving figures of
35 per cent. to teftiand and 65 per cent. to Rightland, a difference of 30 per
cent. On the other hand, in the LIV-RIV situation, the deflection differs and
gives figures of 41 per cent. to Leftland and 59 per cent. to Rightland, a dif-
ference of only 18 per cent. This difference of course, we concede, would in-
crease as the boundary moved farther away from the two coasts.
But with those diagrams 1 hope that 1 may have satisfied the Court. But
while the percentages of differences in areas may be sornewhat larger under
lateral delimitations between adjacent States, it is not the case that median
lines necessarily result in equality.
Now if the Court will be kind enough to turn to the third of my diagrams
(see p. 253,infra),it willseethis point further illustrated in a concretecase con-
cerning two of the Parties to the present proceedings. This diagram depicts
the equidistance line in the Baltic between Denrnark and the Federal RepubIic
and also Iinesgivingthe directions of what might be considered the "opposite"
coasts of this situation, and this is a situation which the Federal Republic
itself has repeatedly asserted is a "median line" situation.
Here, on the German side, there is a very substantial bulge in the coast at
the eastern end and, off that bulge, there is a further substantial off-shore
island. The resulting rnedian line, Mr. President, works out roughly at an area
of 34 per cent. for Denmark and 66 per cent. for the Federal Republic, a dif-
ference of the order of 32 per cent. We have not heard the Federal Republic
cornplain of that, nor has Denrnark complained of it, because she thought it
was the Federal RepubliC'sIegal right. But Denmark also thinks that she is
entitled to her rights off her North Sea coasts.
The Court adjourcrnefdom 11.20 a.m. to 11.40 am.
I would like to make a few further observations in relation to Judge Sir
Gerald Fitzmaurice's third question.
Our opponents have repeatedly referred to the fact that lateral lines may
dispose of much larger areas where they giveon to the open seas and they have
invoked this fact as in itself a basis for considering the application of the equi-
distance principle as unjust and inequitable in the particular cases before you.
The learned Agent was very specificupon this point in thefinal stages ofhis
address to the Court. On page 207, supra, of the tenth day's verbatim record
he said:
"If there were only a srnall belt of continental shelf before the coasts of
Denmark, the Federal Republic and the Netherlands, it would probably
be legitimate and sufficientto judge the equitableness of the boundary line
by exarniningthe relatively srnallarea delimited thereby. In such a case the
equidistance boundary would perhaps even be regarded as equitable. But
if the equidistance boundary reaches fat out into the sea it affects the
apportionment of extensive submarine areas and the evaluation of the
effects of the proposed boundary cannot be restricted to the local con-
figuration of the coast. The whole geographical situation around the con-
tinental shelf that is to beapportionedhas to be taken into account. That
is what 1would like to cal1the macrogeographical perspective."254 NORTH SEA CONTINENTAL SHELF
This contention he reiterated in measured terms on page 208,supra,the same
record. We feel bound to recall what wehave already said in the written plead-
ings, narnely that there is no suggestion in the report of the Committee of
Experts nor in the report or draft articles of the Commission, nor in the Con-
vention adopted at Geneva, of any such doctrine. The Experts, the Commission
and the Conference treated median line and lateral equidistance boundaries on
precisely the same basis. None of these bodies ever contemplated that a lateral
equidistanceline rnightbe equitable so long as the continental shelf was not too
wide, but might become inequitable should the continental shelf extend some
farther distance out to sea.
Furthermore, Mr. President, it was after a prolonged debate resulting in the
extension of the exclusive rights of the coastal State beyond the limit of the
continental shelf proper to the lirnit of exploitability that the Conference
adopted precisely the same rule for median line and lateral line situations.
1 shall be returning a little later to the preparatory work of Article 6, whe1
shall read to the Court a passage from Mr. Boggs, a Ieading member of the
Cornmittee of Experts, which is in directcontradiction with the learned Agent's
thesis on this point.
Our opponents so run together their doctrine of the "just and equitable
share" and their version of the special circumstances clause that we are never
quite sure when they are invoking "special circumstances". But it wouId seem
from the contention of the learned Agent to which 1have referred that you are
being asked to hold that a bend like that in the German coast could not be
considered a "special circurnstance" so long as the continental shelf was not
very extensive, but would be a "special circumstance" if the continental shelf
werewider. If so, it appears to us to be a way of claiming that the area which it
is correct to consider as the continental shelf naturally and properly appurte-
nant to the Federal Republic becomes unjust and inequitable sirnply because
other areas appear over the horizon, although those areas are nearer to other
States. This does not seem to us to have any basis either in Article 6 or in
equity.
There is one further point which we wish to make in this connection and as
part of our general reply to Judge Sir Gerald Fitzmaurice's question. This is
that the equality, or inequality, of areas cannot be appreciated without refer-
ence to the contours of the continental shelf itself, Even granted that there is
this extension to the "exploitable limit", the contour depths of the seabed still
deterrnine, for practical purposes, the outward size of the areas. The particular
course of these contours may, in certain cases, though not in the North Sea,
counterbalance in some measure an apparent inequality of area resulting from
the course of a lateral equidistance line.
That co,ncludesOurexplanations of Ourposition on this question. We cannot,
however, forbear to observe that in the present cases the problem of inequality
resulting from a deflected, "lateral" equidistance line does not really anse. As
we have pointed out in the written pleadings, and as rnylearned colleague, the
Danish Agent, has emphasized in his final speech, the Danish-German and the
Netherlands-German coastlines are both quite normal and almost straight in
their general direction. In consequence, the lateral boundaries for each of these
situations, taken separately, do not sufferany great deflection.The Netherlands
equidistance line is, indeed, almost perpendicular to the coast, and such deflec-
tion as there is operates in favour of the Federal Republic. Ktisnot, Mr. Presi-
dent, the direction of the Netherlands equidistance line of which the Federal
Republic complains, it is only the fact that later this line happens to meet
another line. RWOINDIlR OF SIRHUMPHREY WALWCK 255
That, Mr. i'resident, concludes imy explanations and observations with
reference to Judge Sir GeralclFitwnaiuice's questions,and 1therefore propose,
as Iintimated in opening, to pass to rriymoregeneral argument about theequity
of our opponents' case.
Mr. President and Members of the:Court, more has been heard of "equity"
in the two cases now before you than h;is ever before been heard of equity in
al1the previous cases in this Court arid al1the previous caSesof the Permanent
Court put together. The leg;alsystein af rny,own country is famous for its
"equity". But equity in England, as iriother common law countries, is a systern
of settled legalrules and prini:iplesno lesscertainand concrete than those of the
general law. Accordingly, if a.party is heard tointhe English courts rnaking
liberal appeaIs for "equity" outside the settled principles and rules, the court
is apt to conclude that he daes so because he knows that he cannot forrnuIate
his daim within the recognizcd categciriesof legaland equitable rights. It is our
submission that this is the position of the FederaI Republic in the present pro-
ceedings.
Scattered throughout the Federal R.epiiblic'swritten pleadings are appeals to
"equity" in one form or anc~ther,though mainly in the forrn of the "just and
equitable share" and "equitrtble appi~rtionment". At the present hearings the
records show counsel for the:Federal Republic invoking equity in the form of
"general justice", "equitable apporitionment", etc., on almost every page,
except sornetimes where they may be discussing Ourcase. At this final stage of
the argument, Mr. President, we undi:rstand our opponents to be rnaking their
appeal to equity in two separate ways.
First, denying the existena: of any legal basis for applying to them the equi-
distance-special circurnstancc:srule, lhey invoke, under subparagraph (c) of
Article 38 of your Statute, the alleged principle of the just and equitableshare
under the title of "general justice."
Secondly, assurning the application of the equidistance-special circurnstances
rule, they still invoke the prii~cipleof the '3ust and equitable share" under the
name of "equitable apportionment" as wholly controlling the interpretation
and application of this nile.
Thus, the principle of the "just and equitab1eshare", if it is rejected by the
Court under the fist way of putting the Federal Republic's case, is to reappear
by the backdoor under the ;mise of the equitable application of the equidis-
tance-special circumstances rule.
As to the Federal Republic's firstlirie ofargument in support of the "andt
equitable share" based on pal-agraph (c)of Article 38, thecontentions on both
sides have aIready been very fully e:cpounded to the Court. We think, as 1
submitted to the Court on page 117, supra, of the record of the sixth day, that
the Federal Republic'sargument on this part of the case is wholly excIuded by
our own contentions regarding the priticiplesand rules applicable to the delimi-
tation of the boundaries now in issue before the Court.
We also think that there are num1:roilsfurther objections to the Federal
Republic's claim to be entitleti to invoke paragraph (cT.stated them seriatim
and succinctlyfor theCourt onpages 117ta 118, supra,of thesamerecord. We
doubt whether it would assist the Court ifwe were to revert to al1those matters
again.
The Court may indeed have noted, on page 207, supra, of the tenth day's
record, that the Iearned Agent himsi:lf zieernedto have lost sorne of his en-
thusiasm for paragraph (c) .and to be nioving over to an equally vague and
undefined assertion that the principle of the just and equitableshare is sirnply
an "interpretation of existiriglaw". The objections which we have voiced256 NORTH SEA CONTINENTALSHELF
against the introduction of the aiieged principle under the umbrella of para-
graph (c) apply with no less force to this new contention.
To contend that this principle is "recognized by the formulation of Article 6
of the Continental Shelf Convention" seems to us to disregard entirely both
the exclusivenature of the rights of the coastal State under Articles 1and2and
the legislativehistory of Article 6, whichshows the clear intention of the drafts-
men to lay down mies of boundary delimitation and not of "apportionment".
But 1need not go into the point now because 1propose in the very next part
of my speech to state cornprehensively our objections to Our opponents' at-
tempt to read the principle of thejust and equitableshare into Article 6 of the
Convention.
Since the Federal Republic now tries to bring its "just and equitable share"
claim back into the case under cover of the equidistance-special-circumstances
rule, wedo think that it may beof assistance to the Court if wesubject the legal
basis of this second limb of Our opponents' case to close examination. The
observations which we are about to make on the "just and equitable share" in
this connection necessarily have a certain bearing also on the first and main
limb of Our opponent's case, and we, therefore, respectfully ask theCourt to
take them into account also in that connection.
The principle of the just and equitable share, whether under that name or
under the name of equitable apportionment, is presented to you by Our op-
ponents as a principle of "general justice" that is over-riding in its efincany
question of the delimitation of continental shelf boundaries.
That, Mr. President, is what you find on page 32, supra, of the record
of the learned Agent's speech on the second day. True, he is there speaking in
the context of paragraph (c) of Article 38, but it is in this same over-riding
character that Our opponents invoke their alleged principle as a factor in the
application of the equidistance special-circumstances rule. On page 49, supra,
of the sarnerecord the learned Agent said expressly :
"The Federal Republic of Germany is of the opinion that under Arti-
cle 6 of the Continental Shelf Convention the criteria which determine the
presence of special circumstances excluding the equidistance Iine, are
quite the same as those which determine the applicability of the equidis-
tance method between States to whorn the Convention does not apply."
The over-riding character of the Federal Republic's alleged principle can be
seen on pages II to 12and then on pages 15 to 16,supra, of the record for the
firstday. Speaking, it would appear,primarily inthecontext of paragraph (c) of
Article 38, Professor Jaenicke said:
"The Federal Republic of Germany, on the other hand, takes the
position that the delirnitation of the continental shelf between the States
adjacent to the same continental sheif has to be achieved in such a way
that each of those States gets a just and equitable share. Al1methods,
includingthe equidistancemethod, that have been applied in State practice
to determine the boundary between States adjacent to the same continental
shelf, should be applied with a view to their purpose of effectuating an
equitable apportionment between the States concerned.
In the opinion of the Federal Republic of Germany, the justification for
the application of the one or the other method of delirnitation depends
essentialIyon the test of whetherit effectsan equitable apportionment in
the concrete case. While it does not deny that the application of the equi-
distance method may in many casesresult in such an equitable apportion-
ment, the Federal Republic of Germany takes the view that there is no REIOINDEROF SI]< ~JMPHREYWALDOCK 257
prima facie validity of the equidistance.boundary nor any rule of inter-
national law which allows a St;ite to delirnit its continental shelf vis-&-vis
another State unilaterally by ap;plicationof the equidistance method unless
the other State acquiesces in such 21boundary.
As to the delimitation of the continental shelfbetween the Parties in the
North Sea, the legal position lof the Federal Republic is the following.
First: There is no obligation on the Federal Republic of Germany to
accept the equidistance:rnethodL,if it is not established by agreement, by
arbitration, or otherwiise,that the equidistance line will achieve an equit-
ableapportionment between the:Parties. Second: The equidistance method
cannot be applied here because its application would result in boundaries
which do not allocate a just andlequitable share of the continental shelf to
Germany. Third: The Parties have to agree on another boundary line
which would apportioii a just and equitable share to both sides, taking
into account the extent of their territorial connection with the continental
shelf in the North Sea."
For the moment, Mr. Prejident, 1mei-elyask the Court to note that here the
alleged principle ofthejust a.ndequitable share takes over cornpletelyas the one
and onIy principle for the delimitation of the continental shelf. Al1else, in-
cluding the equidistance principle and, it seems, ail the general law-governing
baselines,isdown-gradedto therank of "method" sothat the6'justand equitable
share" may be left in suprerne comniand.
If the Court moves on to page 15, slrpm, of the same record, it will
see clearly enough that the Federal :Republictakes muchthe same position in
the context of the equidistiince special-circumstances provision in Article 6.
It will be enough if I reminclyou of what Professor Jaenicke said on page 15,
siipra,under the head of his fourth cornment, on the claimed customary law
status of the equidistance special circumstances rule:
"If the special circumstances cliiuse withinthat rule would be interpreted
in accordance with its Iiurpose, namely with its purpose to allowanother
boundary line when the equidistance method would lead to an inequitable
result, then such an equidistarice-special circumstances rule would not
in its substance differ materially frorn the legal position taken by the
Federal Republic of Germany. It is the position of the Federal RepubIic of
Germany that under grneral iriternational law the equidistance method
cannot be applied against the State unless it is established by agreernent-
arbitration or otherwisr:-that it wil1achieve a just and equitabIe appor-
tionment among the States concerned."
Here again, the alleged pi-incipleof the just and equitable share is made to
over-ride and virtually replace the rule actually found in Article 6.
There areother passagesin the Fedi:ral Republic'sarguments at thesehearings
which throw light on its position reg,irding the meaning and application of the
equidistance-special circumstances rtileand to which I shall corne later. But 1
want to stop here for a morrientand analyse the grounds on which the Federal
Republic seems to base the title of its "just and equitable share" principle to
over-ride and virtually replace the ruileactually stated in Artic6.
If we appreciate our opponents' argument correctly, they seem to rest their
contention as to the over-riding charatcterof their alleged principleon four legs:
First: The alleged establishment in State practice of "equitable apportion-
ment" as the applicable "standard" ,ofdelimitation before 1958.
Second: The introduction of the equidistance line by the Cornmittee of258 NORTH SEACONTINENTAL SHELF
Experts in 1953 as what our opponents cal1 "a better method of achieving
equitable apportionment".
Third: The reservation made by the Cornmittee of Experts that the equidis-
tance principle may in a number of cases not lead to an equitable solution
which should then be arrived at by negotiation.
Fourth: The introduction by the Commission and the Conference of the
special circumstances clause to provide for such inequitable cases.
We have dealt with these points in our Counter-Memorials-the Danish
Counter-Mernorial, paragraphs 60-79and the Netherlands Counter-Memorial,
paragraphs 54-73,and also in our Common Rejoinder, paragraphs 32-40.But
in this concluding stage of the case we want to recall how none of these points
stands up to close exarnination.
The Truman Proclamation of September 1945 and some other unilateral
claimsmadeprior to 1958did contain referencesto the settlernentof boundaries
with neighbouring States on equitable principles. Others did not concern
themselveswith the question. The State practice, in sofar as it did refer to the
question, dealt with it in terms of the delimitation of boundaries on equitable
principles. As to the actual delimitations, the Venezuela-Trinidad boundary
could be said tobe a delimitation on equitable principles and, as wehave shown
in paragraph 68 of our Common Rejoinder, it was significantly a modified
equidistance line. The Chile-Peru and Ecuador boundarieswere established on
the basis of the parallels of latitude of the land boundaries, a somewhat rough-
and-ready solutionin whichit isnot easyto seeanyclear or consciousapplication
of the alleged principle of the just and equitable share".
In short, the State practice prior to 1958may have shown some recognition
of the existence ofa boundary question in regard to the continental shelf and
of an obligation to delimit the boundary on equitable principles. But it was
wholly indefinite as to the basis for determining what might constitute a
delimitation on equitable principles.
1should add, Mr. President, that when 1 Saythat State practice prior to 1958
was indefinite on this point, 1mean only the State practice outside the codifi-
cation work of the United Nations; the latter was by no means so indefinite.
Our opponents seem, on pages 55 and 56, supra, of the third day's record,
to try to attach their "equitable standard", now a mere alias for equitable
apportionment, to the emergingdoctrine of the continental shelfso as to make it
the customary law rule of delimitation applicable when that doctrine eventually
crystallized at the Geneva Conference. In order to achieve this desired result
Ouropponents advance a somewhat special interpretation of the notion of the
coastal State's exclusiverights.,
"By 1958[they say] there was widespread recognition that a coastal
State is vested with exclusive sovereign rights for the exploitation of
natural resources frorn the continental shelf contiguous to its Coast. The
rights of such a coastal State over its contiguous continental shelf are
exclusivein that other Stateswho arenot contiguous to such a shelfcannot
claim or acquire rights to the part which appertains to the aforementioned
coastal State."
Mr. President, are Ouropponents asking you to believethat when the United
States, in the Truman Proclamation, declared that it "regards the natural
resources of the subsoil and seabed of the continental shelf beneath the high
seas but contiguous to the coasts of the United States as appertaining to the
United States", it meant to claim exclusiverights in the sense only that other
States not contiguous to such shelf cannot claim or acquire rights to that part REJOIND ER OF SIRHUMPHREY WALDOCK 259
which appertains to the Unii:edStates? Ifso, wethink that their argument loses
touch with the factsaf life, ïor the United States certainly meant to exclual1
States from the continental shelf appertnining to the United States.
But Ouropponents do seeInto be advancing thiscontention for they go on to
Saythat it is "This fundamerital doctiaine"which "is reflectedin the Convention
on the Continental SheIfin Article 2, paragraphs 1,2 and 3"; and from that
they argue:
"This fundamental doctrine is reflected in the Convention on the Con-
tinental Shelfin Article 2,paragraphs 1,2 and 3. In no waythen, could the
general concept of the continental shelf existent at the time of the Con-
vention, be said to ena.ble a coastal state to acquire exclusive rights to
contiguous continental shelf areas to the detriment of adjacent coastal
States whose coastline is also ccintiguousto that same continental shelf."
In other words, they seem.to be a:ikingyou to hold that the doctrine of the
ipsojure exclusiverights of the coastalState over the adjacent continental shelf
is simply an expression of the righls of other adjacent States to a just and
equitable share of the continental shelf. We can onIy wonder, Mr. President,
how the draftsmen of paragi-aph 2 oilArticle 2 of the Convention came to use
such inappropriate words:
"The rights referred to in pareigraph 1 of this article are exclusivein the
sense that if the coastal State rloes not explore the continental shelf or
exploit its naturalresources, no oiie may uiidertake these activities, or
make a claim to the continental shelf, without the express consent of the
coastaI State."
Are you then to understand that the words "no one may undertake these
activities, or make a claim" do not iricludeother coastal States adjacent to the
same shelf or their nationals?
1now tuni, Mr, President,,to whai:1called the second and third legs of our
opponents' argument, both of which concern the alleged intentions of the
Committee of Experts. First 1 would like to recall the circumstances of the
convening of the Committee of Experts.
Numerous States, and not.ablysome of the smaller States, had raised strong
objections to the Commission's proposal in 1951that disputes concerning the
delimitation of continental shelf bouridai.iesbetween adjacent States should be
settled by compulsory arbitration ex ,nequoet bono,and they had called for the
formulation of rules of lawon the sutjeci:.In other words, governmentsin their
comments had strongly opposed thr: idea that continental shelf boundaries
shouid be delimited in accortlance with nndetermined and unreguIated notions
of what is 'Ijust and equitable", even if the decision should bethat of an
independent arbitrator. Al1the more strongly, Mr. President, would they have
objected to the idea that the continenitalsheIfshould be left to be delimited in
accordance with the subjectivenotions of each State as to thejustice and equity
of its own situation.
In 1951the Commission itselfhad accepted the equidistance principle in its
median line form for opposite States. It had been led to propose arbitration
ex aequo er borro for adjacent States primarily because, asyet, it had neither
examined lateral boundaries through the territorial sea and thereforehd not
its starting point for the continental shelf, nor obtained sufficient technical
information on this wholeasl~ectof rriaritimeboundaries. It was to put itself in
a better position to deal wixhthe question of maritime boundaries that the
Commission had the Committee of Experts convened byits SpecialRapporteur.260 NORTH SEA CONTINENTAL SHELF
As the name implies and as the report itself underlines, this Committee was a
body oftechnical experts-of hydrographical and geographical experts.
Now let us se, Mr. President, what our opponents say to you about the
Committee of Experts. The main passages are on pages 13 and 14, supra, of
the first day's record. The Iearned Agent observed, on page 13, that when the
experts recommended the equidistance method and spoke of the principle of
equidistance, they did not recommend it as a "principle of law". He said:
"They wereexperts on the drawing of boundaries, butthey were not asked
to determine questions of international law. They rather understood it as
a principte of geometric construction which might be used for defining the
boundary, so 1 do not think that it could be inferred from the use of the
word 'principle' in this report of the Cornmittee of experts that they
regarded it as a 'principleof law'as our opponents will make us believe."
We are sure the learned Agent did not mean to do so, but he hasmisstated our
contention on this point, just as he has sornewhat misinterpreted the role of the
Committee.
We did not, of course, contend that the experts either were, or thought they
were, deterrnining questions of international Iaw. We thought that in their
Reply our opponents were rnaking an exaggerated and rather specious distinc-
tion between the "principle" and the "method" of equidistance. Accordingly,
in Chapter 2 of our Rejoinder, wepointedout that the equidistancecriterion, to
use a neutraI word, has thevirtue ofcontaining within itselfboth a principle and
a practical method of delimitation. We there said, in paragraph 34:
"It supplies first a principle for the 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 fa11within its boundaries rather than
within those of a more distant State; and at the sarne time a practical
geometrical method for defining the boundary in accordance with the
principle, namely the construction of a line the points of which are at
equal distance from the nearest points of the respective coastlines of the
two States."
And weadded that this doublecharacter of the equidistance criterion as both a
principle and a method was shown in the recommendation of the Committee of
Experts where they actually use the expression "according to the principle of
equidistance". But we did not clairn that the Committee was thereby determin-
ing questions of international law. Our opponents, on the other hand, do seem
to us to underestimate the significanceof the Cornmittee'srole in reIation to the
law.
The experts, we may besure, Mr. President, were verywellaware that their
opinion wasbeingsought by the International Law Commission on anumber of
specificpoints in regard to interna1waters, the territorialsea,the contiguous
zone and the continental shelf, for the express purpose of assisting the Com-
mission to formulate precise legal rules on the mattersin question.
Nor, Mr. President, were they cloistered professors: they wergovernmental
experts practised in giving advice on boundary matters arising out of the
application of international law. One of thern, Commander Kennedy, was
indeed associated with me in a case in this Court oniy th.reeyears before the
convening of the Comrnittee of Experts.
Moreover, even the most cursory glance through the Committee's report
shows that it was not unconscious of the use to which its advicewas to be put.
.Thus,in its answers to Question 2 concerningbays, the Cornmitteespeaks more REJOINDER OF SIRH.UMPHREYWALDOCK 261
than once of a bay "in the juridical sense", and refers in certain cases to the
"line interfauces terrarurn" as one .which"should constitute the deIimitation
between inland waters and the territorial sea".
Again, in its answers to Question 4 concerning the "general direction of the
coast", it spoke of "exceptional caseiiespeciallyjustified byinternational law".
No, Mr. President, we cannot accept the idea that the experts were mere
"back-room boys" unconscious of the significanceof their task and of the legal
implications of the answersu~hichthe,ywerereturning to thequestionnaire of the
Special Rapporteur of the Internatio,nal Law Commission.
1 repeat, however, that ne have iiever contended that the Committee was
engaged in "determining qurstions of international law". What we contend is
that the Committee knew that its adlvici:was being sought for the purpose of
formulation of rules of intr:rnationitl law by the Commission; that it drew
upon its expert knowledge of the methods and the principles used in maritime
and fresh-water boundary clelimitations; and that, in the light of this know-
ledge, it recommended the equidistance criterion as the most appropriate
principle and method of delimiting lateral boundaries both though the terri-
'torial sea and the continental shelf.
And we further contend that this recommendation, endorsed as it was
afterwards by the Commission and by the Geneva Conference, led to the
formulation of concrete rules for the delimitation of the continental shelf
which they whollyreplaced,ifat the sa.metime theygavecontent to, theequitable
principles of delimitation envisaged in certain of the earlier continental shelf .
proclamations.
Oddly, enough, Mr. Presiclent,on the very same page of the same record-
page 13, supra-our learned opponent seems to have had much less hesitation
in invoking the report of th,?experts as authority for the view that equitable
apportionment is the fundamental Iegalprinciple that over-rides al1else. For
he there said :
"The committee of experts, whichin 1953first proposed the equidistance
rnethod as a suitable method for the drawing of maritime boundaries in
territorial waters between adjacent States, restricted its recommendation
for this rnethod bythe fcillowingreservation: in a number of casesthis may
not lead to an equitable solution, wttich should then be arrived at by
negotiations. This c1earl:yindicated that the application of the equidistance
method for the determination of a boundary was considered dependent on
the proviso that this rnethod wciuldyield an equitable result, and that a
rule prescribing the application of tlie equidistance method would lose its
raison d'êtreif this condition were not fuIfilled."
Now, in dealing with thir; point, I must take account of a rather similar
argument advanced by the lenrned Agent on pages 35-36, supra, of the second
day's record. Asserting that it was not the idea of propinquity which had in-
spired the founders of the principle of equidistance to introduce it intri the law
of the sea, Professor Jaenicke continiied:
"What theyhad in mind wasrather to use it as a better method ofequitable
apportionment. The equidistana: method was not regarded as a principle
equitable per se, but rather aa niethod for achievinga more precise result
in allocating to each pa.rty an equal share of the waters between them.
For this 1may quote M:r.Boggs:one of the leading experts on maritime
boundaries, who was rnainly responsible for the development of the
equidistance rnethod, arid who was also a mernber of the committee of
experts which recornmer~dedthis method to the International Law Corn-262 NORTH SEA CONTiNENTALSHELF
mission. His well-known treatise on international boundaries, which was
published in 1940, treats the equidistance method-which he had 6rst
expounded and elaborated in this treatise-as abetter device to draw the
so-called 'middleline'. He states on page 179of his book that the division
into two equal areas seemed to him to be an important element of the
equidistance principle."
That, Mr. President, contains at least a very high testimonial to Mr. Boggs.
Now the point here in question is, of course, of interest in connection with
the third question addressed to the two Governments by Judge Sir Gerald
Fitzmaurice and with which 1have already dealt this morning.
Mr. President and Members of the Court, there was nothing in the question-
naire given to the experts by the Special Rapporteur of the Commission to
rnake them think that the questions put to them had anything to do with
applying any form of the alleged "just and equitable share" principle. On the
contrq, the questionnaire puts the questions before the experts exclusivelyas
technical problems of boundary delimitation. Nowhere can this be seen more
clearly than in Question 7 relating to lateral boundaries through the territorial
sea. This question was forrnulated as follows:
How should the lateral boundary line be drawn through the 'adjoining
territorial sea of two adjacent States? Should this bedone-
(a) by continuing the land frontier?
(6)by a perpendicular line on the Coast at the intersection of the land
frontierand the coastline?
(c) by a Iine drawn vertially on the general direction of the coastline?
(d) by a median line?If so, how should this line bedrawn? To what extent
should islands, shallowwaters and navigationaI channels beaccounted
for?
1shall not take up the time of the Court with the formulation of Question 6
regarding the territorial sea boundary between opposite States, except to Say
that, if shorter, it was forrnulated on similar lines.
Thus, it is evident frorn the terms of the questionnaire that the Special
Rapporteur of the Commission, a very experienced international lawyer, was
quite unconscious in 1953of the existence in maritime international law of any
such fundamental and over-riding doctrine of "equitable apportionment" in
connection with the territorial sea,
The answersof the experts are equallycouched exclusivelyin terms of bound-
ary delimitation, and the only reference to anything equitable is in the rernark
in the answerto Question 7 which Ouropponents invoke: "In a nurnber of cases
this may not lead to an equitable solution,which should then be arrived at by
negotiation." That remark, in our view, sirnplycannot bear the weight which
our opponents try to put upon it.
The question which 1 read to the Court just now, Mr. President, asked for
comments on four alternative methods of delimitation, the last of which is "a
median line". And this question was accompanied by the further specific
questions which 1 read: "how should this Iinebe drawn?; to what extent should
islands, shalIow waters and navigational channels be accounted for?"
The experts did recomrnend this method, calling it the principle of equidis-
tance, but they didnot deal in detail with the further specificquestions. Al1they
did was to make a general remark-the generai remark which is stressed by
our opponents-and, surely this was intended simply for the broad comment
upon the "specific" points mentioned in the question. Moreover, they dealt
with the speciec points mentioned in Question 6 in much the same way. True, REJOINDEROF SIILHUMPHREY WALDOCK 263
they did not there refer in any express terms to an equitable solution or to
negotiation. But they did Say,after recomrnending the median linefor opposite
States: "There may, however, be specialreasons, such as navigation and fishing
rights, which may divert the boundary from the median line."
In short, without specifyinghow the diversion from the median line is to be
determined or whether this was a question of an equitable solution, the experts
there also ventured a reservation about special factors which might influence
the median line.
As 1 have indicated, we #donot t:hink that the rernark of the experts, even
when taken at its face valulr, can possibly bear the weight our opponents try
to put upon it as evidence of afunclameutal principle of equitable apportion-
ment dominating the delimitation of maritime boundaries.
In truth, the Chairrnan of the Cornmittee, the Special Rapporteur of the
Commissjon, was so unawaie, so un(:onsciousof my such element or nuance in
the thinking ofthe experts that the di-aftrules which he prepared for the Com-
mission did not contain any provision whatever for special cases, but simply
prescribed the median line for opposite States, and the principle of equidistance
for adjacent States.
Moreover, in explaining the proposils of the experts, he merely said, on
page 106,Volume 1, of the Cornmis:;ionis1953 Yearbook:
"The experts had ageed that the rules rnight give rise to doubts in
certain specific cases, but had recognized that it would be impossible to
devise a universally applicable rnethod."
In other words, the experts had reco~nmendedwhat they thought should be the
fundamental, general rule, and that was equidistmce, but had indicated that
there might be sorne specific cases which should constitute exceptions to the
rule. This is, of course, exactly what we contend is the position under the equi-
distance-special circurnstances rule and, in our view, the sole point is whether
the present case does, or does oot, constitute an exception to the general nile.
Let us now look, Mr. President, at the writings of Mr. Whittemore Boggs,
whom Ouropponents invokod as one:of the father founders of the equidistance
principle, and in whom they believethat they ais0 seean apostle of the doctrine
of "equitable apportionment". The viorclsof Mr. Boggs on which they rely are
taken from his book on Infernational Boundaries,published in 1940,on page 179
of his chapter on Water Boundanes,. In the passage in question he said:
"The geornetricaldefinition ol"median line',as it appliesto a triangle is,
of course, very simple: it is a line drawn frorn one vertex to the middle of
the opposite side. Such a line bisects the area as well as the side of the
triangle; in fact the divi:sioninto two equal areas seemsto be an important
element of the concept. But thernedian lineasitappliesto bodies of water,
with their shoreline sinuosities iind their tributary inlets is less simple."
While Mr. Boggs was therefore speaking primarily in geometrical terrns, we
on our side naturally recognize that the principleof equidistance has within it
an element, and an important dement, of equality in the concept of equal
distance from the Coast. This, as we pointed out in Our answer to Sudge Sir
Gerald Fitzmaurice's question, doeii not necessariiy involve equality of sea
areas evenin thecase of median lines.Wiat it involvesis equality in the relation
of the boundary to the nearr:stpoint:; of the respective coasts.
Our opponents did not aslcyou, Mi. I'resident,to read on to the end of that
chapter in Mr. Boggs'book where, on pages 184 to 192he turned to the ques-
tion of lateral boundaries ttirough the territorial sea. The interesting thing is264 NORTH SEA CONTINENTAL SHELF
that, having considered on page 191the problem of "complications due to the
existence of islands or of a highly irregular coast line", he advocates an "equi-
distance principle" solution and then concludes:
"This method of delimiting and defining boundaries through the terri-
torial sea is believed to be of general applicability in relation to inter-
national water boundaries from the coastline of contiguous states to the
high sea."
Mr. Boggs' book, as 1 mentioned, was published in 1940, before the conti-
nental shelf doctrine began to emerge. We think it might have been more
apposite if our opponents had referred the Court to an article by Mr. Boggs
published in the American Journal of ItzternationnlLaw in 1951, after this
doctrine had begun to appear and only two years before the convening of the
Committee of Experts. In this article, entitled "Delimitation of Seaward
Areas", Mr. Boggsrepeated his strong advocacy for the use of the equidistance
principle and, irrteolia, urged on page 253 that the use of artificial coastlines
should be very lirnited-limited indeed to cases of prescription.
More significant,however, are Mr. Boggs'observations on pages 260and 262
concerning continental shelf boundaries. Having on the previous page recalled
his recommendation in his book for the use of the equidistance principle in
lateral boundaries through the territorial sea, he proceeds:
"If it be recognized that deveIoping technologies may bring into grasp
in the relatively near future some of the great resources of the sea and of
the sea bed and its subsoil at very considerable distances from shore in at
least a fewareas, and that states or private initiative willrequire assurance
in advance that their interests will be generally adrnitted, some principle
should be formulated for the delimitation of the contiguous zones be-
tween adjacent states. [He is there, of course, using contiguous zones in a
general sense.]The principlehere enunciated will, the writer hopes, prove
to be of universal applicability.
Where a state is actually prepared to explore or to utilize the resources
of the sea bed and its subsoil beyond the territorial sea (perhaps out to
the 'edge'of the 'continental shelf', or to a median line in a gulf or lake),
the techniques described below may be deemed so reasonable that they
will be accepted by neighboring states, or even employed by one state in
its assertion ofjurisdiction, subject to subsequent mutual agreement or to
appeal to established legal authority.
The basic principleproposed is that the lateral jurisdictional lirnitshould
be developedprogressively from the outer Zimitofsovereignty, which is the
seaward limit of the territorial sea. In this progressive development or
extension of the line of lateral jurisdiction, greater and greater stretches of
the coasts of the two adjacent states are taken into consideration, thus
taking into account al1of the sinuosities of the coast, including gulfs and
peninsulas, large and srnaII.Thatpartof the line from the low-tide coastal
tenninus of the land boundary, through the territorial sea, has aIready
been covered, and therefore we begin at the outer limit of territorial waters
in the normal sense.
The most reasonable and just line would be one laid down on the
'median line' principle-a line every point of which is equidistant from
the nearest points on the seaward limits of the territorial sea of the two
states concerned."
This passage, Mr. President, is in somewhat fundamental contradiction with
the position taken by the Federal Republic inregard to the equidistance prin- REJOINDEROF SIIH ~IJMPHREYWALDOCK 265
ciple in the present proceedings anci is in accord with Our own contentions.
Furthermore, not only did Mr. Bciggsthere speak of the equidisbnce line as
the one which would be "the most reasonable and just line", but in o footnote
he commented: .
"The method here suggested.would provide the 'equitable principles'
for accord between the United States and a neighbor state which are
referred to in Presidential Proclamiition No. 2667, signed Sept. 28,1945."
And that proclamation was of course, Mr. Fresident, the original Truman
Proclamation, the referenci: in whii:h to equitable principle was reproduced
afterwards in certain other, notabIy Persian Gulf Proclamations,
1sitnot clear that when this prom.inentrnember of the Committee of Experts
spoke of what wouId be a "just" Iine, and of "equitable principles", he was
thinking of what might be ''just" aiid "equitablein the context ofthe lawof
maritime boundaries as that Iaw wa.sknown to him? He was not thinking of
"justice" and "equity" asautonomous legal rules overriding the existing con-
cepts, techniques and rules of maritime international law.
So much, Mr, President, for the efforts of our opponents to harness the
authority of the Committee of Experts totheir notions ofjustice and equity.
3"heCourt roseut I p.m. NORTH SEA CONTINENTALSHELF
THIRTEENTH PUBLIC HEARXNG (11XI 68, 3.20 p.m.)
[Present: See hearing of 23 68, Judge ad hoc Sarensen absent.]
QUESTIONS BY JUDGES jESSUP AND PETUN
Judge JESSUP: SirHurnphrey, this isa srnall question in regard to your ex-
planation of chart D on Friday, the explanation appearing at page 252,
supra, of the record of Friday. Having in rnind,in connection with your ex-
planation, the Protocol of 9 June 1965, which is printed in Annex 7 of the
Mernorial of the Federal Republic, could you indicate whether chart D ian
officia1chart agreed by the two Governments and whether the dotted line is
mutually agreed to be the rnedian line, and whether the solid lines A-B and D-C
are baselines officialiy adopted by the Parties or set forth in any agreement
between them, or on the other hand, is thaschart constructed for illustrative
purposes?
M. PETRÉN : Il s'agitd'une questionadresséeauxagents du Danemark et des
Pays-Bas et la question est la suivante.
Est-ce que le Danemark et les Pays-Bas sont d'accord avec la République
fédéralepour considérer que les deuxcompromis permettent Ala Cour d'entrer
dans un examen de l'effetcombine des deux lignes de délimitationp~oclamées
par le Danemark et par les Pays-Bas?
REJOINDEH OF SIR HUMPHREY WALDOCK
COUNSEL FOR THE GOVERNMENTS OF DENMARK AND THE NETHERLANDS
Sir Humphrey WALDOCK: 1 believe that 1 could answer Judge Jessup's
question at once. The chart put forward was, ofcourse, a chartfor illustrative
purposes. It is not one thar is, as it were,agreed technically between the Parties.
The Court has, 1understand, been inforrned of the indispositioof my col-
league, the learned Agent for Denrnark. I would like, on his behalf, to express
his deep regret at this making it impossible for him to be present before the
Court at this final stage of the case. He has given me the necessary instructions
for the completionof the argument on behalf of Denmark, but as I Say,he is
deeply sorry he is not present here before you.
When we adjourned last Fnday I was discussing what 1 referred to as the
four legs of our opponents' equitable case. 1had completed rnydiscussion of
three of those limbs of their argument and 1now pass to the fourth argument
by whichthey try to establish the overriding effect oftheir alleged principie of
equitableapportionment in the application of the equidistance-special circum-
stances rule, and this is the introduction of the special circumstances clause
by the Commission and the Conference,
This pointwas dealt with by the learned Agent on page 46, supra, of the
second day's record. We are not in disagreement with his statement there
that the clausewas introduced "to provide for cases where the applicatiof
the equidistance line would lead to hardship to one of the States concerned".
But the question is, of course, what are the cases of hardship which the clause
was intended to cover and here we are in profound disagreement with our RUOM>ER OF SIR HUMPHREY WALDOCK 267
opponents' all-embracing interpretation of the Commission's intentions,
Indeed, when he said, at the bottom ,ofpage46,that "the clause was deliberately
left vague to cover all cases where the exigenciesof an equitable apportionment
would require its applicaticin", he was simply trying once again to get out of
the equidistance-special cir+rurnstani:esrule altogether. For "the exigencies of
an equitable apportionmeni:" is a ncitionthat would assuredly be the subject of
the most diverse and subjective intsrpretations by coastal States.
The leanied Agent seems to impljrthat there is no trace in the Commission's
records of anyrestrictiveintention regarding the categories ocases which may
bring the "special circumstances" cliiuseinto operation. This viewof the matter
is, we think, in sharp contradiction wilh the Commission's records.
We pointed out in paragraphs 127 and 128of the Danish and paragraphs 121
and 122of the Netheriandi: Counter-Memorials that the very words "unless"
and "special" stamp the clause witti the hallrnark of an exception. We further
pointed out that in the deba.ternerntiersof the Commission spoke of the excep-
tion in terrns of special cases of "nianifest hardship", "undue hardship" and
"manifest unfairness".And.we theridrew attention ta the Commissiono 'sn
considered staternent of its understanding of the clause in paragraph 82 of its
1953 Report. So contrary is this stateinent to the ideas put forward by Our
opponents at these heanngc:that we feel obliged to recall it to the Court. This
is what the Commission said:
"Moreover, while in the case of both kinds of boundaries the rule of
equidistance is the general rule, it is subject to modification in cases in
which another boundary line isjustified by special circurnstances. As in the
case of the boundaneii of coastal waters, provision must be made for
departures necessitated by any exceptional configuration of the Coast, as
well as the presence of islands or ol'navigable channels. To that extent the
mIe adopted partakes cifsome e.lasticity.In view of the general arbitration
clause of article 8, referred to 1x10~in paragraphs 86 et seq.,no special
provision was considered necessary for submitting any resulting disputes
to arbitration. Such arbitration, while expected to take into account the
special circumstances calling fcir modification of the major principle of
equidistance, is not contemplaled as arbitration ex aequo et bono. That
major principle must cimstitute the basis of the arbitration, conceived as
settlernent on the basis of law, asubjectto reasonable modifications neces-
sitated by the special circurnstances of the case."
In face of this statement, Mr. President, it really seems to us impossible to
sustain the thesis of the all-pervading role of "equitable apportionment" in
the Commission'sproposals for the deliniitation ofcontinental shelfboundaries.
Moreover, the Comrnission!~propo!;als were adopted without any substantial
change at the Geneva Conference and are now Article 6 of the Convention.
We accordingly submit that evëj singlepoint on which Ouropponents seek
LL rest their thesis of the over-ridinl: character of the alleged principle of the
just and equitable share" in the apptication of the equidistance-special circum-
stances nile fails them totally and that, when closely examined, each one of
those points only serves to confirrn ;andunderline the primacy of the equidis-
tance principle in the delimitation of continental shelf boundaries.
1 now propose, Mr. President, to turri to some other general aspects of Our
opponents' position in regard to the application of the special circumstances
clause for you have already heard imylearned colleague, the Danish Agent,
analyse their contentions as to its co~icreteapplication in the actual case before
you. At times during these hcaringswe have seemedto detect a slightniovement268 NORTH SEA CONTINE~TAL SHELF
towards us, on the part of our opponents, concerning the interpretation of the
clause. Did not the learned Agent on page 178, supra,of the ninth day's record,
after al1 the controversy in the pleadings, unmistakably concede that the
"special circumstances" clausereally isan "exception" to the equidistance rule,
as was manifestly the intention of those who framed it? And there are other
rapprochements of which 1 must speak later.
Towards the conclusion ofmy first address to the Court, on page 119,supra,
pf the sixthday's record, 1 drew attention to the learned Agent's definitionof
"special circurnstances", sayingthat he now seemedto be in general agreement
with us on this fundamental aspect of the application of the clause. That state-
ment is to be found in the second day's record and it reads as follows:
"The criterion that the special circumstances clause cannot be invoked
if the correction of the boundary is not justified with respect to a State
which loses by the correction, is on its face a simple truis1;agree [with]
what they Say, [and he meant, of course, the two Governmentsl the cor-
rectionmust also be equitable orjust to the losing Party." (Supra, p. 45.)
This statement, as the Court will appreciate, corresponds quite closely to the
explanation of the special circumstances clause whichwegavein paragraph 123
of our Cornmon Rejoinder and which was reiterated by my learned colleague,
the Danish Agent, on pages 145 to 146, supra, of the seventh day's record.
Moreover, among the many changes of front, metaphorical and literal, that
took place in our opponents' final speech, this point at least stood firrn.
Indeed, Mr. President, Our opponents at these hearings moved one small
step further towards us when the learned Agent agreed, on page 50, supra, of
the second day's record, that seen in isolation, the area claimed by Denmark
and thearea claimedby the Netherlands in theseproceedings mayberegarded as
"natural continuations of their territories into the sea". He did so in these
terms:
"Suppose you would isolate the Danish and the northern part of the
German coast and disregard the existence of al1other coasts of the North
Sea, as ifboth countries werefacingan open sea. Then it might be possible,
under this hypothesis, to regard the areas west of both countries as a
natural continuation of their territories into the sea. The equidistance line
could then be regarded as normal and equitable. You could do the sarne
with the Netherlands coast and the adjoining part of the German coast
and disregatd the other North Sea coasts, just as if both countries were
facing an open sea to the north-north west, the areas north-north west of
both coasts might then be regarded as a natural continuation of the
Netherlands or German territories into the sea. Theequidistance boundary
rnight then, in such a case, be regardedasnormal and equitable."
He added, I know, that such an approach would distort the general geography
of the situation and asserted that:
"You cannot split up the boundary question between Denmark and
Germany or betweenthe Netherlands and the Federal Republic ofGermany
as if there were no other countries adjacent to the North Sea."
But he did concede that, seen in isolation, the areas claimed by Denrnark and
by the Netherlands constitute "natural continuations of their territories into
the sea".
We cannot, of course, disregard the geographical facts, but we can look a
little more closely at the Federal Republic's position in relation to them. On REIOINC.ER OF SU<~PHREY WALDOCK 269
page 42, supra, of the same record, the learned Agent justified his claim that
the Court should leave out of accollmtthe "shares", as he calls them, of the
United Kingdom and Norway on the ground that these other North Sea
States do not profit frorn thi:applicatioti of the equidistance line at the expense
of Germany. We, therefore, are entitled to ask how Denmark can be said to
profit from the application clfthe eqiiidistance lineat the expenseof the FederaI
Republic when the areas which sheclaims are, in principle, a natural continua-
tion of her territory; and siinilarly v~iththe Netherlands.
In truth, itseems to us tliat what the learned Agent is talking about is not
geographical facts, not eveii the ms~crogeographicalfacts which wereso sud-
denly brought into our leanied opponents' arrnoury. He is really taiking about
political frontiers, as can be seen in a moment if we imaginea slight adjustment
of the political facts. The Federal Republic and the Netherlands, it so happens,
are joined together in the Eiiropean Economic Cornmunity and there are some
who urge a yet closer association. Let us, therefore, imagine that the Federal
Republic and thé Netherlandswere actually united in some form of federation.
Could it then be plausibly argued that the so-called bend in the German coast
was a special circumstance within t'herneaning of Article 6? Can Denmark's
exclusive rights over the continental shelf adjacent to her coast possibly be
dependent on the particular state of the political relations betweenthe Federal
Republic and the Netherlands?
The Court will also recall the twice-repeated statement of the learned Agent
that equidistance line bouridaries off the Danish-German and Netherlands-
German coasts rnight even tieequitable if only the belt of the continental shelf
before these coasts were srnnll. He did not sayjust how wide that belt rnighthe
before the equidistance principle would cease to be equitable, but he clearly
meant sornething wider thiin the partial boundaries. Naturally, we are in-
trigued by his staternent. Would the equidistance lines have still been equitable
if the belt of the continental shelf had reached no further than their meeting
point under the Danish-Netherlands Agreement?
At any rate, Mr. President, it seenisthat the Federal Republic will not let us
cal1Ourequidistance lines equitable merely because each of us happens to be
a separate Stateand the continental :belf is rather wider offOurcoasts than the
Federal Republic thinks proper. Aire these really good enough grounds for
taking away frorn us the natural ccintinuations of our territory in the name
either of equity or of speciaI circum!;tances?
1 would now ask you, hlr. President, to consider the Federal Republic's
position from yet another angle-the accident that the two casesare before the
Court together and that al1three Siates concerned are Parties to the present
proceedings. 1have already addressed the Court on the question of the Special
Agreements. Our opponents say th.st we are taking a narrow view of your
cornpetence. But this is not so, and b:r1touch on the question posed by Judge
Petrén. Wehave always recognized lhat the Court is fuily competent to deter-
mine in each case whether there is a special circumstance justifying another
boundary line within the mt:aning of Article 6.
In each case the two Govi:rnrnentc.for which 1appear believed that this was
the real issue for the Court. But when the Federal Republic asks the Court to
make a common pool of the area cornprjsed within the Danish-Norwegian and
the Netherlands-Belgian boundaries and distribute it in the name of equity
according to what it admits to be unprecedented criteria, we think that it runs
right outside the terms of the Special Agreements.
The learned Agent, on page 194, wrpru, of the tenth day's record, fully
recognized that the Court has &fororit two separate cases. As the Court will270 NORTH SEA CONTINENTAL SHELF
realise it is only because of the friendly relations between the th States and
their common devotion to the judicial processin international law that the two
cases are now in front of you together. This cannot, in Ourview,alter the legal
position of the Federal Republic in either of the two cases submitted to your
decision.
If, Mr. President, either Denmark or the Netherlands had insisted on the
adjudication of its case separately, what would have been the position? This
Court has held in the Monetary Goldcase that it cannot deal with a matter if to
do so involvestaking a position with regard to the rights of a State not a party
to the proceedings. Jfthe Court had had before it the Danish-German case
alone, could it possibly have listened to the Federal Republic arguing that the
function of the Court was to distribute the area cornprised within the Danish-
Norwegian and the Netherlands-Belgian boundaries between Denmark, the
Federal Republic and the Netherlands?
Could the Court equally have listened to an argument that it should deter-
mine the principles for delimitingthe Danish-German boundary on the basis of
particular assumptions regarding the determination of the Netherlands-
German and also the Nethedands-Belgian boundaries? We do not think so,
Mr. President, and we subrnit that the basis of the Federal Republic's legal
rightsvis-à-visDenmark or vis-à-visthe Netherlands cannot differaccording to
whether their cases are before the Court separately or together. Certainly it was
never the intention of the three-Party Protocol of 2 February 1967 to bring
about any such result.
We therefore persist in Our view that the whole of the Federal Republic's
argument regarding the division of a specificarea of the North Sea-the area
between the Danish-Nonvegian and the Netherlands-Belgian boundaries-
among the three Parties to the present caseson somesupposed basis ofjust and
equitable shares is outside the Special Agreements.
We consider that in this argument the Federal Repubiic is asking the Court
in the name of a supposed, and 1 may add somewhat versatile, concept ofequity
to do injustice to Denmark and to the Netherlands.
What else, Mr. President and Members of the Court, do Ouropponents ask
you to do in the name of equity?
They are asking you to decide these cases by referenceto criteria which they
Sayarenot only unprecedented but are not to form a precedent forfuture cases.
That is on pages 36 and 37, supra, of the second day's record. The learned
Agent there explained that this would not mean that you would be applying a
rule of law hitherto unknown in internationallaw; you would only beappreciat-
ing the equitableness and applicability of the equidistance boundary in the
particular geographical situation.
1willnot repeat what I said in my opening address about the adhoccharacter
of the decision that our opponents are demanding from you. Here 1am con-
cerned only with the equitableness or otherwise of our opponents' demand
from the point of view of al1the three States before the Court.
For our opponents, it has seemed to us, equity like charity begins at home,
and in listening to them we have felt that perhaps in their eyes equity is a
goddess whose beneficentrule extends only from Borkum to Sylt. In our eyes,
on the other hand, an equitable apportionment to be made by reference to
criteria unprecedented and not to bea precedent, and designedto transfer from
us to the Federal Republic substantial areas of continental shelfformingnatural
and adjacent continuations of our territories, has al1the appearance of clear
injustice and inequity,
Whatever view is taken of the equity of Our opponents' demand, it is, we REJOINDER OF SIR. UMPHREYWALDOCK 271
think, certainly not equity within the context of the law, it isequity outside the
law. 1need not repeat what was so clearly explained to theCourt by my learned
colleague the Danish Agent in his speech on the eleventh day. He showed how
our opponents in the writteri pleadings and in face of the Court had been strug-
gling to find a plausible bai;is on wliich to construct their ailegedly equitable
demand. In the process they have changed the very foundations of their so-
called criteria and have agiiin.and again shifted and tailored their so-called
coastal fronts in order to find, of al1things, an equidistancelinepointing in the
direction that they wouldwish. And those so-called criteria, fluctuating with
the ebb and flow of argun-ient, are by our opponents' own admission "un-
precedented and not to form a precedent". Is this really "equity" Mr, President?
1s it that self-evident equity of whic:hour learned opponents so often speak?
Our opponents themselves seemto have felt that they rnight be demanding
too much in calling for a decision by reference to "unprecedented" criteria.
For in their final speeches both th12learned Agent and the counsel for the
Federal Republic introduced the NorwegionFisheriescase into their arguments,
suggestingthat the present case might very wellbe decided along the same lines
of judicial reasoningas those in the Court's decision in that case. Their argu-
ments will be found on page:179of lhe ninth and pages 194and 195,supra, of
the tenth day's record. Thi:y relied on well-known passages in the Court's
Judgrnent where, referring IOthe dtrply indented and island strewn coast of
Norway, the Court set out ii:sreasons for adopting the general direction of the
coast as the criterion of the admissibility of straight baselines.
Our opponents never becameverypreçise as to which of their severalversions
of the coastalfronts has to lind its jilstification in this judicial decision, andit
may be that it was intended to provitle cover for each and al1of them. But we
have the impression that it is the Borkum-Sylt line or the line carefuIly placed
by the learned Agent a Iittle to seaward of the Borkum-Sylt line, on which
they primarily have theireye in involcingthe Court's reasoning in the Fisheries
case.
Both of rnycolleagues, thi: two Agents, have underlined some of the factors
which differentiate that case from the present cases. 1shall; therefore, confine
myself to presenting a few further observations on behalf of the two Govern-
ments.
Quite apart from anything else, hlr. President, the Court was in that case
veryfarfrom being confronted with "unprecedented" criteria. By the time the
written pleadings were completed al1of us who took part in that case were,
1think, a littIe surprised at ihe not ii.iconsiderablevolume of straight baseline
precedents concerning islanii fringei that intensive research in the pleadings
had brought to Iight.
In short, however much tlie Court's formulation of the general direction of
the coast principle for the baselines of i.heterritorial sea might appear novel,
and 1 myself so regarded that formulation, it was based upon precedents in
State practice.
Moreover, the Court was careful to guard itself against extravagant inter-
pretations of its decision such as tha.t which has appeared in the present pro-
ceedings.Thus,on page 133of the I.C:.J.Reports 1951,immediately after one of
the passages citedby thelearned Agentfor theFederal Republic, the Court said:
"Among tbeseconsidi:rations, some referencemust be made to the close
dependence of the territorial sea ,uponthe land domain. It is the land which
confers upon the coastal State a right to the waters offitscoasts.It fol-
lowsthat whilesuch a Siate musi be allowedthelatitude necessaryin order272 NORTH SEA CONTINENTAL SHELF
to be able to adapt its delirnitation to practical needs and local require-
ments, the drawing of baselines rnust not depart to any appreciable
extent from the general direction of the coast."
Consequently, the actual reasoning of the Court lendsno support to the Borkum-
Sylt concept of Ouropponents.
Nor willit have escaped the notice of the Courtthat Ouropponents' recourse
to the conception of the general direction of the coast is here somewhat arbi-
trary. Devotees, though they are, of the macrogeographical perspective, it is
the microgeographical perspective that they use when it comes to appreciating
the general direction of the coast. It needs but a glance at the map, Mr. Pres-
ident, toseethat, on any rational scaleofdistances, the North Seacoast has here
two general directions. The first is determined by the line of the Danish-
German shore and runs more or less north-south frorn the Skagerrak coast of
Denmark into the so-called bend in the German coast. There the coast changes
direction and its second general direction is west-south-west along the line of
the German and Netherlands island fringes.
But if one is to take a macrogeographical view of things, is it not quite
arbitrary for our opponents to pick upon the Borkum-SyItline as following the
general direction of the coast? True, Borkum and Sylt are where the political
frontiers may findthemselves, but what has that todo with the general direction
of the coast according to the geographical facts?No, if one is to takea macro-
geographical viewof things, surelyone should beginat the most northern tip of
Denrnark. Then, if one isgoing to think in terms of a singlegeneral direction of
the coast, surely the coastal front, according to our opponents' doctrine, would
run in a straight line from thenorth of Denmark right across to the westernend
of the Netherlands island fringe; and this, according to their doctrine, would
entitle the three States, Parties to the cases now before you,jointly to confront
both the United Kingdom and Norway with impressive new demands. We
wonder why they did not suggest this to us at the time of the negotiations. But
then, of course, the United Kingdom would have had some aces in her hand,
for she has some convenient bumps of territory protruding into the North Sea
well suited to the purposes of rnacrogeographical argument on the general
direction ofthe North Seacoast. But what has this or any of this to do, Mr. Pres-
ident, with international law as we know it?
1return therefore to the Fisheriescase and to the law of the continental shelf
as we know it. The Fisheriescase was, of course, decided before thecodification
and consolidation of the Lawof the Sea at Geneva in 1958.The principles of the
Court's decision in that case were, with sorne further definition, incorporated
in Article4 of the Territorial SeaConvention as part of the general law defining
the coast ofa Statefor the purposes of the delimitationof maritime sovereignty,
of maritime jurisdiction.
1dealt with this matter in myopening speechwhere 1showed that the rules in
the Territorial Sea Convention definingthe coastline of a State for the purpose
of delimiting the territorial sea are incorporated, expressly or irnpliedly, into
each of the other three Conventions. Accordingly, those rules do evidently
constitute general law applicable to the delimitation of daims of sovereignty
or jurisdiction over maritime areas, and the reasoning of the Fisheriescase has
been absorbed into and,made part of this general law.
Article 6, as we know, provides that in the absence of agreement, and unless
another boundary is justified by special circumstances, the boundary shall be
determined by application of the principle of equidistance from the nearest
points of the baselines frorn whichthe breadth of the territorial seaismeasured. REJOINDEROF SIR HLTMPHREY WALDOCK 273
It thus expressly makes the baseline:;of the territorial sea the criterion of the
coastline from which is to I>edeterinined the delimitation of the continental
shelf; and 1have already recalled to the Court a striking passage in the Inter-
national Law Commission'sReport for 1953, where the Commissionsaid of the
equidistance principle :
"Such arbitration, whili:expected to take into account the special circum-
stances calling for modification of the major principle of equidistance, is
not contemplated as arbitration trxaequo etbono. That major principlemust
constitute the basis of tlie arbitriition, conceivedas settlement on the basis
of law, subject to reasonable inoclifications necessitated by the special
circumstances of the case."
Now, Mr. President, the major priricipleof equidistance,there referred toand
now expressed in Article 6, is not jujt any sort of equidistance determined by
reference to any and every fanciful construction of a so-called coastal front.
It is the principle of equidistance froin the nearest points of the baselinesfrom
which the breadth of the territorial sea is measured-from the coast as it is
understood and defined genc:rallyin maritime international law. Similarly, the
"coast" by reference to which the exclusive rights of the coastal State are
recognized by Articles 1 ancl 2 of thi: Convention is manifestly the coast con-
stituted by the baselines of the territorial sea.
Accordingly, the very fat:t that our opponents etch their picture of the
application of the alleged principle of the "just and equitable share" in terrns of
"coastal fronts" wholly divoi-cedfrom the baselines of the territorial sea shows,
in our view, that they are not asking the Court for a decision within the frame-
work of the existing law. Ori this point there cannot beany shadow of doubt
concerning the position of the Federal Republic, for the learned Agent has
underlined it no less than tl~reetiwrs at the present hearings. On page 40,
suprn, of the second day's record he said:
"This criterion, the so-called coastal front, has nothing to do with
baselines used for the measurement of the territorial sea or the contiguous
zone."
And then he explained :
"Our coastal front concept mercly tries to define from what natural geo-
graphic basis the territory of thr: coastal States continues or extends into
the cornrnon continental shelf."
He repeated this explanation of the 1-ederal Republic's position with even
greater ernphasis on page 186,supra, of the ninth day'srecord and yet again on
page 190of the same record. In this fast passage he added:
"The coastal front has in this cclntextonly the function of defining in the
most plausible and ostensible way the basis frorn which the continental
shelvesconvergeinto eachother whereacontinental shelfarea issurrounded
by several States."
Why was the learned Agent so insiistentupon this point if it was not because
he considered, and rightly, that his cciastalfront criterion is completely outside
anything that could be covered by the baselines of the territorial sea.
Now, in out Common Rejoinder, we underlined that the Federal Republic
had not beenableto muster up thecourage to includeitscoastal front "criterion"
in its submissions because it knew perfectly wellthat it had no basis whatever
for presenting that so-calledcriterion asa principle or rule of international law.274 NORTH SEA CONTINENTALSHELF
Much has been heard from the Federal Republic at the present hearings about
the criterion of "coastal fronts" as the basis for its claim to a supposed "just
and equitable share" reaching out to the centre of the North Sea.But the learned
Agent has read out to the Court the final submissions of the Federal Republic
and there is still no trace whatever in those submissions of any suggestion that
their "coastal front" criterion should be applied by the Court as a principle or
rule of international law.
Indeed, Mr. President, our opponents have presented to you their alleged
principle of "the just and equitable share" as a "self-evident" principle or as
"an interpretation of the existing law", and their coastal front concept as a
criterion appropriate forthe situation in the south-east corner of the North Sea,
or for the special case of the North Sea; and they have thrown in referencesto
the reasoning in the Fisheri case in the vaguest terms.
In our view, al1this is really nothing but window dressing to givean aura of
plausibility to a demand that you should substitute for the legally recognized
coastlines of the Parties wholly novel versions of their coasts, unknown to the
law, for the sole purpose of enabling thern to stretch their claimsfarther intothe
middle of the North Sea at the expense of Denmark and of the Netherlands.
The Court willhave observed how reticent our opponents have beenconcerning
the legal relation of their coastalfront criterion to the legallyrecognized coast-
line ofthe Federal Republic constituted by the baselines of its territorial sea.
The reason, again, is that this relation simply cannot be expressed in any terms
known to maritime international law as it exists today.
To illustrate this, 1would ask the Court to imagine for a moment that itis
with meon a shipsailing along the centre of the Borkum-Sylt line or along that
line a little farther to seaward of Borkum-Sylt apparently preferred by the
learned Agent.
If the Court wereto look inwards, towards the Iegallyrecognized coast of the
Federal Republic, what would you see? You would see, inter alk, quite a
sizable expanse of continental shelflying between the so-called "coastal front"
and the German coast. But have Articles 1 and 2 of the Convention anything
to Sayabout a continental shelf lying inside as wellas to seaward of a coastal
front? Certainly not, and we can only conclude that our opponents have been
addressing you in a language which is entirely their own and quite outside the
law of the continental shelf as understood by the International Law Com-
mission and by the Geneva Conference.
And you will also recall, Mr. President, that as my learned colleague the
Danish Agent so clearly pointed out, our opponents have had to chop and
change the shape of their criterion, the coastal front, to tailor it and re-tailor it
several timesto try to make it fit their claims, to festoon it with various equidis-
tance triangles, and push it to seaward out beyond the Borkum-Sylt line losing
al1contact with the land.
Even then the learned Agent recognized that he would have to manipulate
his equidistance triangles lest otherwise they result ia manifest violation of
both the Partial Boundary Treaties and the Special Agreements. Are we not
then again entitled to Saythat this so-called criterion is nothing batformula
devisedad hoc to suit the requirements of the Federal Republic'sargument and
having no basis in the applicable principles and rules of international law?
Nor is the position much different when the matter is regarded as an alleged
application of the special circumstances exception.Quite apart from the proper
interpretation of the "special circumstances" clause,to which 1 shall revert in
concluding my address, the clause cannot possibly, we think, be understood as
envisagingdelimitations so completely detached from the actual legal coasts of REJOINDER OF S~F.IIUMPHREY WALDOCK 275
the States concerned as one based on the "coastal fronts" devised by our
opponents.
Article 6,in bothits paragraphs, aridthus both for "median line" and "lateral
line" situations, makes the baselines of the territorial sea the express basis for
the application of what the International Law Commission called the "major
principle" of equidistance.Is it then conceivable that when the Commission
provided for what it termed "reasoriable modifications" of "that major prin-
ciple" "necessitated by the special circumstances ofthe case", it contemplated
"modifications" so compleiely detached from the "major principle" as the
"coastal front" theory of our opponents? Indeed that same "major principle"
was proposed by the Commission for the delimitation of the territorial sea and
that same provision for reasonable modifications was made by the Commission
in the case of the territorial ses, and how could Ouropponents' "coastal front"
theory fit into the territorial sea at all?
No, Mr. President, whateverelserriaybesaid about the meaning of the words
"another boundary justified by special circumstances", we do not think that
they can possibly refer.to a delimitation of a territorial sea and a continental
shelf adjacent and appurten:int to "c:oasts" quite other than the legalIyrecog-
nized coasts of the States concerned.
Another sign, Mr. Presidcnt, that oui: opponents may have been becoming
uneasy about your receptiveness to the "unprecedented and not-to-be-a-
precedent" criterion of their "coastal fronts", wasthe appearance in their final
speeches of the "macrogeographical perspective". At any rate, it was really
quite remarkable how, in the dying moments of their speeches on the tenth
day, this tongue troubling phrase suddenly appeared and ran riot through
their argument. Learned counsel, it istrue, indulged himselfwith the heady wine
of this new doctrine only twice, on page 195,supra. But the learned Agent was
much Iessabstemious; for ten times clidlie have recourse to it on the last dozen
pages of his speech.
Our opponents' "macrogeographical perspective", when looked at closely,
turnsout to be no more than another, and rather grandiose, labelfor their thesis
that a lateral equidistance line ouglit to be considered as less just and less
equitable than a median line because ans deflection in the line may affectmore
extensive areas of continental shelf.
The learned Agent, as 1 have already recalIed, made his concept of the
macrogeographical perspective quit<:specific in his contention, three times
stated, that the lateral line mitybe legi!tirnateand equitable so long as the belt of
continental shelf off a Coastis comparatively narrow, but cease to be so if the
width of the klt is more extensive. 1 have already dealt with that point, when
1underlined that there is no trace whatever of such a concept in the reports of
the Cornmittee of Experts, the InterrlationaI Law Commission or in the Con-
vention adopted at Geneva.
1 have also, in answering Judge :Sir Gerald Fitzmaurice's third question,
shown that even rnedian line::by no niearisguarantee an equal division of areas
whether in a narrow or more extensive continental shelf. True, our learned
opponents have referred to an article in the 1965 volume of the Annuaire
Français by Dr. de Hartingh which, interalia, touches upon France's reserva-
tions to the Continental Shelf Converition. Butthe article, if it makes the point
about the eiTectof deflections in the division of wider areas of continental
shelf, really adds nothing to the arguments of Our opponents on the point.
1 do not, therefore, think :itnecess:iryto ask the Court to examine with me
once more our opponents' cancept of the macrogeographical perpective and its
application to the present caje. In Ourview, that concept finds no place in the276 NORTH SEA CONTINENTAL SHELF
law of the continental shelf as it was established at the Geneva Conference.
However, since our opponents have spoken so much of equity and the
macrogeographical perspective, I venture to ask the Court to dwell with me a
few moments longer in the macrogeographical world.Indeed, 1 ask you to sail
with me once more along the centre of the Borkum-Sylt line and perhaps
obtain a wider perspective of the equities of the three Parties in the two cases
before you.
If, as our opponents demand, you turn your gaze farther outwards into the
North Sea, what will you see? You will see first a not inconsiderable area of
continental shelf which is nearer to the Federal Republic than to any of its
neighbours. Next, you willseefurther areas which are nearer either to Denmark
or to the Netherlands than to any other country, but of which the Federal
Republic says that, according to the rnacrogeographical perspective, they belong
to the Federal Republic.
Then, Mr. President, having been permitted to cast your gaze that far, you
wjll immediately recall that you are not permitted by our opponents to lift
your eyes one inch beyond those areas, not one inch beyond the Danish-
Norwegian, Danish-United Kingdom, Netherlands-Belgian, Netherlands-
United Kingdom equidistance lines. No doubt this is al1just a matter of the
proper understanding of the "macrogeographical perspective", but we, on
Our side, have to confess that we are quite deficient in that understanding.
However,it isclearenough to usthat, accordingto our opponents, the "equities"
resulting from the "macrogeographical perspective" demand that you should
exclude Denrnark and the Netherlands from areas of the continental shelf
which are nearer to them than to any other State to the benefit of the Federal
Republic and giveno thought at al1to what justice and equity may demand for
Denmark and the Netherlands.
But that is only one side of the macrogeographical perspective, and now,
Mr. President, 1 would ask you to shift your gaze not outwards but inwards,
towards the land, and to consider the case of each of the States Parties to the
proceedings in turn.
What will macrogeography show you of the Federal Republic? First, as we
have already seen, it will show you an area of continental shelf inside the
Federal Republic's sa-called coastal front. Then itwill show you the legally
recognized coastline of the Federal Republic with its bend of about100 degrees
and beyond that the extensive territory of a large continental State. This State,
if it has a coast on the Baltic and its smali North Sea coast, has inland a large
area of what is essentially a continental State. Now consider, Mr. President,
how geography has treated that State. For some centuries past the territory of
the Federal Republic has ben rich in mineral and fuel as well as agricultural
resources, so much so that through the efforts of her hard-working people
Germany was able to build herself an economy of great strength, and with one
of the highest livingstandards in the world.
Turn now to the Netherlands and you will see a small, essentially coastal
State which, as was emphasized in Chapter 2 of Part 1 of the Netherlands
Counter-Memorial, has been engaged inhistory in aconstant struggleto protect
its territory from the inroads of the sea. Until recently, the Netherlands had
quite minor minera1and fuel resources and it was only by unrernitting efforts
to make the sea and its resources servethe national interest that the State was
able to build up the economy of the State and the livingstandards of its people.
Then turn north to Denmark and you will see another small State, an
essentially maritime State, if ever there was one, its territory broken by lakes
and arms of the sea. The territory of Denmark has in the past had altogether RW0INDE.ROF SIR HUMPHREY WALDOCK 277
negligible mineral and fuel rc:sources,so that the economy of the State and the
living standards of the people have tieen who1lydependent on agriculture, the
technical expertiseof its citizens and on resources won from the sea in fisheries
and maritime trade.
Nor, Mr. President, isthe ilifferenci:in the relative natural wealth of the three
Parties so very different today, as cail be seen from the information published
by the Statistical Ofice of the Depa~tment of Economic and Social Afïairs of
the United Nations.
The high level of the Federal Repitblic'seconomy today needs no emphasis
since it is a rnatter of common knoa~ledge.Of more immediate interest in the
present connection isthe fact that in t:heform of solidfuel, crude oil,natural gas
and hydroelectric energy the Federal Republic produces somewhat over 65 per
cent. of her energy needs. hioreover, her balance of trade-over four billion
dollars-is so favourable that the purchase of the residue of her energy needs
from foreign sources presents no exchange problem.
The Netherlands, it is true, has Iiad the good fortune in recent years to
uncover important sources of natural gas and some crude oil, and her position
is, therefore, considerably more favourable than it was. But, according to the
sarne source of our statistica.1information, she still produces only some 6 per
cent. of her domestic oil consumption and, in sum, produces no more than
about 40 per cent. of her doinestic eriergyrequirements.
The position of Denmark has not changed at al! on this point, except to the
extent that she maynow havi:some prospect of findingoiI or natural gas in the
continental shelf. Otherwise, she rernains as bereft of domestic sources of
energy as she ever was. She is able to produce only about 3 per cent. of her
energy needsand has to import the reinaining 97 percent. Moreover, sliesuffers
from a perennial adverseba1;inceof tirade,the cost of her irnportsexceedingthe
ilicome frorn her exports by over $6511million. And of this, some $300million,
or about 45 per cent., is accounted for by the purchase of energy from foreign
sources. Clearly, therefore, the ecc~noinicposition of Denmark might be
transformed if oil or natural ,gasnow became availableto her in the continental
shelf. In this connection the Court was informed, in Chapter 1 of Part 1,and
in Annex 7 of the Danish Counter-Mernorial, that the quite extensive ex-
ploration already carried out indicates that the only areas of promise so far
discovered liejust to the norïh, on the Danish side, of the Danish equidistance
boundary. In short, the streiching of the Federal Republic's continental shelf
to the so-calledcentre of the North Seain the manner demanded by Ouroppo-
nents may welIhave the resuli:of cuttiilg off Denmark from the one reason able
expectation which she has of'acquiring appreciable domestic sources of energy.
We do not know, 'Mr. President, whether the observations which we have
just been making properly telong to the macrogeographical perspective. We
have presented them to the Court only to indicate some of the realities of the
"just and equitüble share" in the prexnt cases. In Ourview, as urehave already
emphasized, the Federal Repnblicin tihesecasesisrealIycomplaining of nothing
more than that nature and history have given 10 her, like Belgium, an in-
convenient window on the North Sea..Slieraised no question when her Baltic
coast gave her a rather favoui-ablemeiiiariline to the disadvantage of Denmark.
She raised no question when the low-tide elevation of the Hohe Riffgave her a
quite favourable deflection of the lateral line to the disadvantage of the Nether-
lands. But when geography ;andhistory prove less convenient in the size and
shape of her own coast, the coast they have givento the Federal Republic, that
is another matter and the Federal Republic brings it to Court. Yet ~hereare
really quite a number of countries ïuhich might wish that, in regard to the278 NORTHSEA CONTINENTAL SHELF
continental shelf, geography and history had given them a more convenient
window on the sea.
With the cases of Belgiurnand Iraq the Court isalready familiar, but just by
way of illustration, and without any wish to discuss their particular situations,
wehaveput on diagramEl (seep. 279,infra) four more casesofStateswithconsi-
derable land territories butasomewhat meagrewindow upon the sea. Thefour
States are Syria, Guatemala, the Congo and Romania, and 1should perhaps ask
the Court to note that the four rnaps are not on the same scales.This is simply
because of the needto fit them into the four squares for purpose of convenient
presentation to the Court. We draw no conclusion from these other cases,
except thatthe Federal Republic isnot alone in having ben givenbynature and
history something lessthan the Coastwhichshemighthavelikedfor the purposes
of the doctrine of the continental sheIf.
The Court ad'urned from 4.40p.m. to 4.55p,m.
Before turning to the concluding part of my speech, 1must ernphasize that
the observations which 1 have just made were not put forward as part of our
own caseregarding the principlesand rulesof law whichthe Court should decide
to be applicable as between the Parties.
Ourcase, as the Court knows, is based on what we conceive to be the appli-
cable principles and rules embodied in Articles 1, 2 and 6of theConventionand
their proper interpretation and application in the situations now before the
Court. But when our opponents have made such play in their arguments with
such nebulous concepts as the "just and equitable share" and the macro-
geographical perspective, we considered ourselvesentitled to point out some of
the realities of the situation before the Court.
We are fully conscious, Mr. President, that we have directed the greater part
of this Ourfmal address to criticisrns of our opponents' case, but for this there
is a very good reason. Wetake Ourstand on what webelieveto bethe generalIy
accepted principles and rules of international law governingthe delimitation of
continental shelf boundaries; in short, upon the equidistance-special circum-
stances rule. Moreover, the stand we take within the framework of these
generally accepted principles and rules is upon the equidistance principle, a
principle which clearly appears as the generally applicablrule and which the
Commission itself referred to as the major principle. Consequently, in the cases
now before you we have believedthat our equidistanceboundaries must prevaiI
unless Our opponents can rnake out to your satisfaction some ground recog-
nized by international law for displacing Ourequidistance boundaries in favour
of some other boundaries.
Our arguments in support of the equidistance principle as the general and
"major" principle we put before you fully in the written pleadings, and these
arguments we have arnplified and reinforced at these hearings in Our first
speech. Accordinglywehave, for the rnost part, devoted this Ourfinal speechto
destructive criticisms ofthe legal basis upon which our opponents seek to rest
their case for displacing our equidistance boundaries. Now, however, in con-
cluding Our argument, we propose to restate briefly the positive grounds on
which weask the Court to uphold Oursubrnissionsand Ourright, as wethink, to
equidistance boundaries.
We have based our own case for the application of the equidistance-special
circumstances rule on three separate, autonomous grounds. We believe that
by one or other of these three routes the Court rnust come to the equidistance-
See No. 49, p.390,infra.280 NORTH SEA CONTINENTAL SHELF
special circumstancesrule asthe law governingthe decisionof the present cases.
In asking the Court to hand down this rule as the law for the Parties in the
present cases, we do not think that wecan fairly be charged with asking you to
do injustice or inequity to the Federal RepubIic.
The equidistance principle, as 1have recalled to the Court, was regarded by
one leading member of the Cornmittee of Experts as the reasonable and just
principle of delimitation for lateral boundaries over the continental shelf and
as a means of giving effect to the "equitable principles" mentioned in the
Truman Proclamation. ClearIy aIso when the internationa1 Law Commission
proposed the equidistance-special circumstances rule, it did so because it
considered this rule to provide an equitable solution within the framework of
the rules of maritime international law.
Similarly, whenthe Geneva Conference adopted the rule in the Convention, it
clearlydid so because it also consideredthe rule to provide an equitable solution
within the framework of the rules on maritime international law. And can you
doubt, Mr. President, that when the Federal Republic voted for Article 6 at
the Conference, it did so for the same reason; and yet againwhen, after careful
deliberation, it signed the Convention? No, Mr. President and Members of the
Court, there is nothing inequitable in the submissionsof the two Governments
for which 1appear. Our Iearned opponents rather suggested to the Court that
here you have a contest between rigid "proximity", on the one hand, and
"justice and equity", on the other. But that is not the position at ail. What
you have here isOurdemand forjustice and equity within the context ofthe law
and their demand for their notions of justice and equity outside the law.
Wesubmit,as 1have already indicated, that the burden clearly and unequi-
vocally rests on the Federal Republic to establish a specific legal ground for
displacing the application of the equidistance principle in the present cases.
Even our opponents were ultimately constrained to recognize that the special
circumstances clausedoes operate as an exception to the equidistance principle.
The learned Agent, it is true, tried to make the best of the matteon page 205,
supra, of the tenth day's record, by speaking of a "general exception" to the
rule, but this seernedto us altogether too facile a way of disposing of the word
"special" in the phrase "special circurnstances".
In Our view the word "unless", the phrase "another boundary line", the
phrase "is justified" and the phrase "special circumstances" individually and
in combination categorically characterize the clause as an exception to the
"general rule" or, as the Commission said, "major principle" of equidistance.
Any other interpretation would, we think, be in flagrant contradiction with the
natural meaning of the wordsin the context in which they are placed. From this
it clearly foltows, Mr. President, that the burden isupon the Federal Republic
to establish the existence in the present cases of circumstances which fall
squarely within the exception provided for in the equidistance-special circum-
stances rule. In short, in order to displacethe equidistance principle, the Federal
Republic must establish not merely "circumstances", which can be said to be
"special" from one point ofviewor another, but specialcircumstancesjustifying
another boundary line.
That the burden rests upon the Federal Republic in these cases also follows,
in our view,from the fact that we are coastal States exercisingour cornpetence,
recognizedin the Fisheriescase, to delirnittheextent ofour maritimejurisdiction,
in accordance with the generally accepted rules applicable to the continental
shelf. When we delimit our continental shelves with the bona fide intention of
conforrning tu those generallyaccepted rules,especially whenwe base ourselves
specificallyon the "major" principle which they contain, we submit that the RWOINDER OF SIRHL~MPHREY WALDOCK 281
burden rests upon any State, which seeks to challenge our delimitations, to
establish the grounds on wkich Our delimitations shouId not be accepted as
valid vis-à-vis that State.
In the same way, even independently of the actual formulation of the law in
Article 6, we submit that delimitations d na dein accordance with the proximity
principle, a principle inhereïit and fiindamental in maritime international law,
are prima facie valid erga otnnes so that again the burden rests upon any State
which seeks to challenge them.
Specialcircumstances may, we recognize, in some cases include such non-
geographical factors as a "historic title" or a prior treaty. Indeed, we have
ourselves drawn attention to the presence of thesefactors in the Soviet-Finnish
and theNorwegian-Swedishdelimitations.Butinthe presentcases, Mr. President,
the Parties are agreed that you have only geographical factors to consider. The
tearned Agent was very clear upon this point on page 193,supro, of the tenth
day'srecord in his answerto JudgeJe:jsup7squestion on thelocation ofresources
and this has been our position from the very beginning.
The Parties are also agreeclupon one cardinal aspect of the interpretation and
application of the equidistance-special circumstances rule: the legal-and 1
emphasize the word "legal"'-criterion for separating proper from improper
claims to invokethespecialcircumstances clause. Weforrnulated it in paragraph
123of our Comrnon Rejoiniier as follows:
"The legal concept of special circumstances has found expression in the
Convention in the form that special circumstances are to be taken into
account only when they justvj~ ariother boundary line. If Article 6 is
applied as a rule of law this must necessarily mean that the correction of
the equidistance principle which the clause clearly intends, can take place
only ifdeviarionfrom the equidistance line isjusrified towurds bothStares-
i.e., the Stute which 'gains' andrhr State which 'loses'by the correction.
In this consideration the two Governments find an essential guidance for
the understanding of the 'special circumstances'clause."
The learned Agent, in a statement ori page 45, supra, of the second day's
record to which 1have twicedrawn tlie Court's attention, expressedthe Federal
Republic's cornplete agreement with us on this point. Indeed, he referred to
the point as "on its face a simple truisrn".
What has the Federal Re~iublicsaid to the Court to justify the correction of
the northern equidistance t~oundarj with respect to Denmark to show that
itwould bejust and equitable with respect to Denmark as wellas to the Federal
Republic? What has he said to you to justify the correction of the southern
equidistance boundary with respect to the Netherlands to show that it would be
just and equitable with respect to th(: NetherIands? Very, very little, Mr. Pres-
ident and Mernbers of the Court. He has conceded that, when the Danish-
German coasts as far south as the bi:nd are taken in isolation, the continental
shelf comprised within the Danish equidistance boundaries appears as a
natural continuation of Denmark's ierritory into the North Sea. He has con-
ceded the same, mutatis mutandis, with respect to the continental sheIf com-
prised within the Netherlands equidistance boundaries. But then he has some-
what cavalierlyobservedthat.here there ir;no question ofany "loss" to Denmark
or to the Netherlands because they caimot ke regarded as having any con-
tinental shelfto lose whilethe court':~decision isstill pending. This seemsto US
to make nonsense of the eqilidistance-specialcircumstances clause and, above
all, of the criterion of justice and eqility with respect to both States whithe
learned Agent insists isa "simpIe truism".282 NORTH SEA CONTINENTALSHELF
TheFederal Republic, Mr. President, has done absolutely nothing to dernon-
strate to you why the correctionsfor which it asks would be geographically or
legally "just and equitable" with respect to Denmark, in the one case, and to the
Netherlands, in the other. Al1that our opponents have really done is to ask you
to look atjustice andequitythroughGerman spectaclesand to turn a biind eye
to justice and equity to the Westof Borkum and to the north of Sylt.
Furthermore, Mr. President, is it not obvious that the issue of "special
circumstances" and of justice with respect to both States arises only because
under the equidistance-special circumstances rule the "major" principle of
equidistance creates a presumption that any continental shelf nearer to one
coastal State than to any other State falls within the boundaries of the nearer
State,and that presumptionarises not onlybecauseof theparticularformulation
of the law of the continental shelf in Article 6 but also because ofthe operation
of the principle of proximity asan inherent fundamentalnorm of maritime law.
It is only in the context of that presumption that the special circumstances
exception and the criterion of justice with respect to both States have any
meaning. The Federal Republic's argument, therefore, sirnply evades the issue
of justice for Denmark and the Netherlands altogether.
Nor has the Federal Republic, in our view, really atternpted to fuifil its
obligation to justify to the Court "another boundary line". It has thrown out
suggestions of criteria, "unprecedented and not to be a precedent for other
cases"; it has thrown out various versions of "coastal fronts", themselves
unknown to thelaw; it haspointed, in the vaguest manner, to possible equidis-
tance triangles and taiked longingly of what it calls thecentre of the North Sea.
But has it reaily got down to justifying in law any specificboundary line other
than the equidistance line?"Take as you like", it has said to theCourt, and we
do not think that this was what was intended by those who framed the special
circumstances clause.
We havepersistently, ifpolitely, been charged by our opponents with taking
up positions in these cases that are contrary to justice and equity. We hope that
what wehave said at these hearings mayhaveshown the falsenessof that charge.
We have taken up positions in accordance with principles our adherence to
which we made known to the world even before the Geneva Conference. We
have taken up positions in accordance with the principIes which weunderstand
to have been accepted by the international community at the Geneva Con-
ference. We have taken up positions in accordance with principles which, since
the Conference, have been applied by the United Kingdom, by Norway, by
Belgium, by Sweden, by Finland, by the Soviet Union, by Italy, by Yugoslavia,
by Malta, by Iraq, by Kuwait, by Iran, by Saudi Arabia, by Bahrain and by
Australia. We have, indeed, taken up positions in accordance with the prin-
ciples which have applied in the Baltic in a manner not unfavourable to the
Federal Republic, and which have been applied in the Partial Boundary
Treaty with the Netherlands in amanner also not unfavourable to the Federal
Republic.
We do not think that there is any inequity in Ourasking for these principles
to be applied to the continuations of the Federal Republic's partial boundaries
in theNorth Sea. We recognize that the Federal Republic has what 1have calIed
an inconvenient window on the North Sea. But it is not for us, we think, or for
theCourt, to remake the political frontiers of the Federal Republic or to deprive
them of their normal effects in relation to the seas appurtenant to the Federal
Republic. There jsnothing whatever in the wasts of either of the countries
for which 1appear that in any way distorts the areas of continentalshelf which
the equidistance principle makes appurtenant to those coasts.We accordingly REJOINDEROF SIR HUMPHREY WALDOCK 283
submit that under the criterion for the application of the special circumstances
exception, whichhas been acixpted bjral the Parties in the present proceedings,
the Federal Republic has wholly failcd to establish any ground for displacing
the equidistance principle in either ol'the cases before the Court.
Whatweask for isthe even-handed ;ipplication bytheCourt of the established
law to Denmark and to the Netherlaridç as it has been applied to other coastal
States in the North Seaand elsewhere.It is that whichis true equity. Weoppose
utterly the idea that we should have applied to us criteria unprecedented and
not to be a precedent to othr:rs.
That, Mr. President, concludes my ar~wmenton behaif of the two Govern-
ments for whom Ihave addressed yori. It had been the intention orny learned
colleague, the Agent for Denmark, tclfollow me for the purpose of stating the
position of his Government inregard to Denmark's final submissions. In the
circumstances which 1 mentioned iri opening this afternoon, and since the
learned Agent has no wish to change .thesubmissionspresented to the Court in
Denmark's Counter-Mernorial and in the Cornmon Rejoinder, hehas instructed
me to state, on his behalf, that the (3overnrnent of Denmark confirms those
submissions.Moreover, as the submissioiisof the Government of Denmark are
identical, mutatis mutandis, with thos'sof the Government of the Netherlands,
and as these submissions of ihe Netherlands will now be read to the Court by
the learned Agent for the Netherlands, 1respectfully suggest to the Court that
this confirmation of Denmark's subnussions, made by me on the instructions
of the Agent, may sufficefor the record.
Finally,1 should like to thank the Court for its hearing of me. 1 should
further like to express once again rny senseof privilege in having been asked to
participate in these proceedings on tiehalf of Denmark and the Netlierlands,
and at the same tirneto expressmyappreciation ofthecourtesy of our opponents
which has made that participation so agreeable.
STATEMENT BY PI1OI;ESSOR RIPHAGEN
AGENT FOR THE GOVERNIHENT OF THII KINGDOM OF THE NETHERLANDS
Professor RIPHAGEN: Beforepresenting thefinalsubmissions1wouldliketo
make the foIlowingadditional observations in relation to the question posed by
Judge Petrén.
Each of the two separate SpecialAg:reementsdealswith a differentboundary
Iine. In the Special Agreement concliided between Denmark and the Federal
Republic the Court is requested to diride the following question: What prin-
ciples and rules of international law are applicable to the delimitation as be-
tween the Parties of the areaj of the continental shelf in the North Sca which
appertain to each of them t~eyondthe partial boundary determined by the
above-mentioned Conventiori of 9 Juiae 1965?
In the SpecialAgreement ctincluded betweenthe Netherlands andthe Federal
Republic the Court isrequested to docide the following question: Wliat prin-
ciples and rules of international law are applicable to the delimitation as be-
tween the Parties of the area:; of the i:ontinental shelf in the North Sea which
appertain to each of thern beyond the partial boundary determined by the
above-mentioned Convention of 1Decen~ber1964?
In the opinion of the Nei:herlands and of Denmark, as explained in Our
written and oral pleadings, the principles and rules of international law which
are applicabIeas betweenthe Partiesdo not permit the location of the boundary284 NORTH SEA CONTINENTALSHELF
line betweenDenmark and the Federal Republic to be determined or influenced
in law by the boundary line betweenthe Netherlands and the Federal Republic.
Nor do those principlesand rules of international lawpermit the location of the
boundary line between the Netherlands and the Federal Republic to be deter-
rnined or infiuenced in law by the boundary line between Denmark and the
Federal Republic.
Mr. President and Members of the Court, at the end of the oral pieadings
it is incumbent upon me to present to the Court the final submissions of the
Kingdom of the Netherlands. They are identical to those presented in the
Counter-Mernorial and in the Common Rejoinder.
These submissions are :
With regard to the delimitation as between the Federal Republic of Germany
and the Kingdom of the Netherlands of the boundary of the areas of the con-
tinental shelf in the North Sea which appertain to each of them beyond the
partial boundary determined by the Convention of 1December 1964,
May it please the Court to adjudge and declare:
1. The delimitation as between the Parties of the said areas of the continental
shelf in the North Sea is governed by the principles and rules of international
law which are expressed in Article 6, paragraph 2, of the Geneva Convention
of 1958on the Continental Shelf.
2. The Parties being in disagreement, unless another boundary isjustified by
special circumstances, the boundary between thern is to be deterrnined by
application of the principle of equidistancefrom the nearest points of the base
lines from which the breadth of the territonal sea of each State is rneasured.
3. Specialcircurnstances whichjustify another boundary finenot having been
established,the boundary between the Parties is to be determined by application
of the principle of equidistance indicated in the preceding submission.
4. If the principles and rulesof international law mentioned in Submission
1 are not applicabIe as between the Parties, the boundary is to be determined
between the Parties on the basis of the exclusiverights of each Party over the
continental shelf adjacent to its coast and of the principle that the boundary
is to Ieaveto each Party every point of the continental shelf which lies neareto
its coast than to the coastof the other Party.
Mr. President and Members of the Court, allow me to express my profound
gratitude for the patience and attention with which the Court has listened to
our arguments. CLOSING OF THE ORAL PROCEEDINGS 285
CLOSING OF THE ORALPROCEEDlNGS
Le PRÉSIDENT: Je voudrais, au nom de la Cour, remercier les agents et
conseils des Parties du concilurs qu'iIslui ont en présentant leursthèses.
Je prie les agents de se teaila disposition de la Cour pour fournir 2icelle-ci
les renseignements complém~~ntaire(dontelle pourrait avoir besoin. Sous cette
réserveet sous réservede toliordolinance ou directiveéventuellede Ia Cour,
je déclare closela procédureorale. L.aCour communiquera avec les agents de
la maniérehabituelle et les avertiraen temvoulude toute audience publique
qu'elle déciderait de tenir pour la lecture de l'aou pour toute autrefin.
Th,?Courr roseut5.30p.ni. NORTH SEACONTMENTAL SAELF
FOURTEENTH PUBLIC HEARING (20 II 69, 10a.m.)
Present:[See hearing of 23 X 68.1
READING OF THE JUDGMENT
.Le PRÉSIDENT :LaCourseréunitaujourd'hui pour rendresonarrêtdansles
affaires du Plateau continentalde la mer du Nord, portées devant la Cour
le 20 février 1967 par la notification de deux compromis conclus entre la
Républiquefédéraled'Allemagne et le Danemark d'une part et la République
fédéraleet les Pays-Bas d'autre part.
Je vais donner lecture du texte français de l'arrêt.
(Le Présidentdonne lecture de l'arrêt1.)
LePRÉSIDENT: J'invite leGreffier A donner lecturdu dispositif de l'aenêt
anglais.
(Le Gr~fier lit en anglais le dispositif de l'arrêt2.)
Le PRESIDENT : Sir Muhammad Zafmlla Khan et M. Bengzon,juges, joi-
gnent Zl'arrgt des déclarations.Le Présidentet MM. Jessup, Padilla Nervet
Ammoun, juges,yjoignent les exposésdeleuropinion individuellM. Koretsky,
Vice-Président,MM. Tanaka, Morelli et Lachs, juges, et M. Sarensen, juge
ad hoc, y joignent les exposésde leur opinion dissidente.
Afin que la décisionde la Cour soitconnue leplus tôt possibleet en raison des
retards qui seraient intervenus si le prononcé avait dû être remis jusqu'h
l'achèvementde l'impression de l'arrêet des opinions individuelles et dissi-
dentes,il aétéjugéopportun de procéder aujourd'hui iila lecture del'arrêt
d'aprèsun texte polycopié.L'éditionimprimke présentéede la maniérehabi-
tuelle sortira de presse dans trois semainesenviron.
TheCourt roseut Ip.m.
(Signed) J.L. BUSTAMAN YTEIVERO,
President.
(Signed) S.AQUARONE,
Registrar.
C.I.J. RecueiI 1969, p. 12-54.
I.C.JReports 1969, pp. 53-54.
Minutes of the Public Hearings held at the Peace Palace, The Hague, from 23 October to 11 November 1968 and on 20 February 1969, the President, M. Bustamante y Rivero, presiding