ITùTERNATIONALCOURT OF JUSTICE
PLEADINGS,ORALARGUMENTS, DOCUMENTS
NORTH SEA CONTINENTAL
SHELF CASES
(FEDERAL REPUOFGERMANY/DENMARK;
FEDERAREPUBLTCOF GERMANY/NETKERCkNDS)
VOLUME1
COURINTERNATIONALENSLICE
AFFAIRESDU PLATEAU
CONTINENTALDE LA MER
DU NORD
(REPBLIQEFGDERED'ACLEMAGNEIDANEM;RK
R~PUBLIQUEFÉDÉRALE D1ALLEMAGNE/PAYS-BAS)
VOLUME 1 COMMUN REJOINDER SUBMITTED BY
THE GOVERNMENTSOF THE KLNGDOM
OF DENMARK AND THE KINGDOMOF
I THENETHERLANDS
INTRODUCTION
1
1.This Common Rejoinder of the Kingdom ofDenmarkand of the Kingdom
of the Netherlands to the Reply of the Federal RepofGermany is sub-
mitted ro the Court in pursuance of theofthe Court dated 26April 1968.
2. TheGovernments of the Kingdoms of Denmark and of the Netherlands
note the considerations set out In the above-mentioned Order which have led
the Court to conclude that the two Governmearein a common interest In
the proceedings and to decidc that they should file a Common Rejoinder.
The two Governrnents appreciate the couvenience whthisprocedure may
havefor the Court in the present caseinaccordance with the terms of the
Order, have drawnup their comments upon thetwo Replies of the Federal
Republic of Germany aa Comrnon Rejoinder.
3. The Governments of the Kingdoms of Denmarkand of the Netherlands
at the same time emphasize that their respectcases against the Federal
Republic of Germany were instituted by separate Special Agreements and
concern the delimitation of difïerboundariesof the continental shelf to
i seawards from differcntparts of the NSeacoast of the continent of Europe.
The two Governments are thus inacommon interest in the proceedings only
inthe sensethat the issuelxforc the Court in both tis"what principles
and rules of intcrnationaareaapplicable to the delimitation as bctween the
Parties of the areas of the continental shelf in the North Sea which appertain
to each of thern" beyoncertainpartial boundarialreadydetermincd and
that the principles and ruof international law which eachGovernment
considers to bs applicable in its case correspond. In al1other respects their in-
terests in the proceedings are entirely different and, in their substance, even
divergent; for each of the two Governments is contomaintain its rights
to thareaof the North Sea continental shelfwhichappertains toomnes,ga
that is, vis-&vis each and evcry other North Sea Power, including bolk the
other two Particsto the present proceedings.
Tn this connection, it may be recalled that in its Counter-Mernoriai the
Danish Government (paras. 152-156anfig3) has taken the position Chatthe
delimitation of itscontinental sheif boundary vis-&vis the Federal Republic is
dependent on theconjïgurations ofthecousisofDenmarkandof #heFederal
Republic in their relat60each other; and that in its Counter-Mernorial
(paras. 147-151and fi.) the Netherlands Government has taken the position
that the delimitation of its continental shelf boundary vis-&FederaZ
Republic js dependeon theconfigurationsoizlyofcoastsoftheNelher1and.s
andof the Federal Republicin threlatiotoeach orherIn otherwords,the
two Governments have cach insistedupon the entirelyseparate choftheer
issues between them and the Federal Republis as wncerns the substance454 NORTH SEA CONTINENTAL SHELF
of the matters in dispute, that is, areas of continental shelf which appertain
20 the respectivecoasts of the three countries.
Xtrnay also be rfxalled in this connection that the partial continental shelf
boundarim, which already exist between, on the one hand, Denmark andthe
Federal Republic and, on the other hand, the Netherlands and the Federal
Republic and which arereferrcd to in the resp~ctiveSpecial Agreements sub-
rnitting the two cases to the Court, were agreed upon in wholly separate nego-
tiations and were delimited wholly independently of each other by reference
exclusively,in the one case,to the coasts of Denmark and the Fedaal Republic
and, in the other, to thcoasts of the Netherlands and the Federai Republic.
4. Accordingly, having separate pointsof view in regard to the substance of
the rnatters in dispute, the Governments of the Kingdoms of Denmark andof
the Netherlandshave included in this Cornmon Rejoinder certain observations
for which the Danish Government is solely responsible (para. 142)and certain
other observations for which the Netherlands Government is solely responsible
@ara. 143).
5. In its Reply the Federal Republicasit wasentitled to do, has both added
to and amended its submissions. These revised submissions willbe commented
upon Iater in so far as rnay appear nwessary. But the two Governments cannot
refrain in this Introduction frornonce drawing attention to theextraordinary
character of the new Submission 4 contained in the version of the Federal
Republic's subrnissionswhich now confronts the Court '.
The firssubmission asks the Court to say Chat thedelimitation of the con-
tinental shelf between the Parties in the North Seais governeby the principle
that each cuastal State isentitledto a just and equitable "shase". This sub-
mission is followedby a series of negative submissians, developed in two para-
graphs, which are designed to indue the Court to discard the equidistance
principle as a relevantpnnciple or rule of international law. The finalsub-
mission then reads:
"Consequently, the delimitation of the continental shelf in the North
Sea between the Parties is a rnatter whicha9 to be settled by agreement.
This agreement should apportion a justand equitable share toeach of the
Parties in the light of al1factors relevant in this respect."
The extraordinary chat-acterof this submission liesin the fact thaseems to
question the very basisofthe Special Agreements by which the two cases were
referred to the Court.
6. The Governments of the Kingdoms of Denmark and of the Netherlands,
in the submissions contained in their Counter-Memorials, have pointed out
that the prcsentcase save ken brought berore the Court precisely because in
each of them the Parties had established that in regard to the fucther course of
the boundary a disagreement existed betwcen them which could not be settled
bydetailed negotiations. They have also pointed out that this state of disagree-
ment isexpressly raorded in each Compromis and that the task-the only
task-entrusted to theCourt in each case is to decidewhat principles and rules
of international lawareapplicable to the delimitatioas between the Partiesto
the case in question, of theareas of the continentalshelfwhich appertainto
Reply, p.435,supra. COMMUNREJOINDEROF DENMARK AND THE NETHERLANDS 455
each of them. The final submission In the FederalRepublic's Reply seerns to
invitethe Court, disregarding the clear terms and express object of the Com-
promis, to laydown as a principle or rule of international Iawthat "the delimi-
tation isa matter which has to besettlcdby agreement" subject only to a rider
that "thisagrwment should apportion a just and equitabIe share to each of the
Parties in the light of al1factors relevant in this respect".
Under Article 1, paragraph 2 of the Compromis, Denmark and the Federai
Republic in the one case and theNetherlands and the Federal Republic in the
other case, have,it is tsue, undertaken thaa&er the Courr hasgiven iu decision
regarding theapplicableprinciplesandrules 01 infernarionallaw they willrespec-
tively delimit the continental shelf in the North Sea as between their countries
by agreement in pursuance of the Court's decision. But this is quita different
thing from what theFederal Republicseeks to obtain from the Court in its fina'
submission. There the Federal Republic asks the Court to decide underpara-
gragh 1 of Article 1 ofthe Compromisthat ineach casetheprinciple or rule of
law applicable tothedelimitation of the continental shelf asbetweenthe Parties
isthat the delimitation is a matter which has to be settleby agreement. This
deprivestheCompromis ofal1meaning. Inthe Compromis, aspointeclout above,
the Parties exvresslvrocordedtheir disamement. and their inabilitytosettlethis
disagreement bydetailcdnegotiations andwent on to askthe court to decidethe
applicable principlesand rules of international law inordertharfheyrnightafler-
wards beinaposition foreackagreement ipipursuanceojrhe Court's decision.
7.Nor isthe incompatibility of this submission with the Comproniis in any
way diminished by the rider attached to it, which exhorts the Parties that their
agreement should "apportion a just and quitable shareto each of the Parties
in the light of al1factors relevant in this respect". In effect, this exhortation
merely reproduca the so-called principleof the "just and equitable share",
which forrns the subjectof the first subrnission, addingto it the words "in the
light of al1factors relevant in this respect".
The so-called principle of the"just and equitable share" has already ken
subjected to stringent criticisms by thetwo Governments in their respective
Counter-Mernorials (Part TT,Çhapter 1) and will be further discussedin Chap-
ter 1ofthis CornmonRejoinder. Hereit suficesto recallits compIetelack of any
objectivelegalframe of referencebywhich to detemine what ia to beconsidered
a "'justand equitable share" in any given situation. In the context of legal
rights, what is "just" and what is "equitable" çan be appreciated only by
referenceto objective and legally recognized criteria. Tn the two cases now
before the Court the good faith of the respectiveParties isnot in question. They
are in dispute precisely because they differ in their appreciations as tu what is
"just" and "equitable" as between them under international law. Ttiherefore
serves no purpose whatever, and knocks the bottom out of the Compromis, for
the Federal Republic to ask the Court merely to direct the Parties to settb
their dispute by agreement in a manner which will give a "just and equitnble
share" to each of them.
Furthermore, the addition of the words "in the light of al1factors relevant
in this respect" merelyservesto underline the complete absenceof any objective
lepl criteria in the Federal Republic'sfirstand fourth submissionsln Section 5
of Chapter III, entitled "Conclwsions", the Federal Republic does indoed speak
of "the breadth of the coastal front of each State facing the North Sea"as an
"appropriate objective standard of evaIuation with respectto the equitableness
of a proposed boundary". lndeed in paragraph 97 the Federal Republic goes
to the length of saying that "the breadth of the coastal front of each State is
the only appropriate standard by which to dcterrnine the equitableness of the COMMONREJUINDEROF DENMARK AND THE NITHERLANDS 457
with existing practice of delimiting maritime arbutare also the çoncrete
expression of the principle of adjacency underlying Article1 to 3 in the
Continental Shelf Convention.
Chapter 3 dealing with the interpretation of the special çircurnstanoes clause
in Article 6, showing that this clause cabeoapplied in the present dispute
because a boundary other than the equidîstaoce lineisnot justzed by any
special cirçumstance within the meaning of the clause. This Chapter further
contains the individuai observations of the Kingdom of Denmarkand the
Kingdom of the Netherlandsmentioned in paragraph 4 above.
ParrII, which contains the subrnissions of each Governrnentto the Court
regarding the principles and rulesof international law applicable to the delimi-
tationas betweenthe Parties of the areasof the continental shelf in North
Sea which appertain to each of them.
Pari III, which containsthe Annexeswhich, inter alfa,set out certaiaddi-
tional information on remntState practice regarding the continental sheif. COMMONREJOINDEROF DENMARK AND THE NETHERLANDS 459
PART 1. THE LAW
THE ESSENCE OF THE ISSUE BEFORE THE COURT
10. As expiained in theIntroduction the present proceedings havea two-
fold object:
(a) the determination of the boundary line, delimitias,between Denrnark
and the FederalRepublic of Germany, the areasof the continental shelf
in the North Sea which appertain io each of them beyondthe partial
boundary determined by the Treaty concluded between Denmark and
the Federal Republic ofGermany oir9 lune 1965;
(b) the determination of thboundar Iine, defimitinasbetween the Nether-
lands and the Federal Republic of Germany,the areas of the continental
shelf in the North Seawhich appertain to eacofthem beyozidthe partial
boundary determined by the Treaty wncluded between the Netherlands
and the Federal Republiç of Germanyon 1 Decemkr 1964.
11. Thereis complete disagreement between Denmark and the Netherlands
on the one hand, and the Federal Republicon the other hand, ato what the
nilesand principles of international law, relevant foofethe two situations
-the DanishlGeman boundar and the NetherlandslGerman boundary-are.
12. Accardingto the Federal Republic the relevant niles and principlof
international law are:
(a) "Thedelimitation of the continental shelf betweenthePartiestheNorth
Sea isgoverned by the principle that each coastd Stateis entitlajust
and tquitable share" (Submission 1,p. 435, supra, of the Reply) and
(b) "... the delimitation of the continental shelf in the North Sea between
the Partiesis a matter which has to be settIby agreement. This agree
ment should apportion ajust and equitable share to each of the Parties
in the light of al1factors relevant in this respect" (Submi4,ip. 435,
supra , fthe Reply).
13. On the other hand, according to Denmark and the Netherlands, the
relevant rules andprjncipleç of internationaldeclare:
(a) that the boundary line as betwcen Denrnarkand the Fedeeal Republic
(or asbetweenthe Netherlands and the FederalRepublic,as the case may
be) istobe determined by application of the principle of equidistance from
the nearest points of the baselinesfrom which the breadth of the temitorid
sea of each State jsmeasured, untess another boundary is justifiedby
speciaIcircumstances(Submissions2,p. 221,supra, of the Danish Counter-
Mernorial and p. 375, supra, of the Netherlands Coiinter-Mernorial) and
(b) that, as between Denrnark and the Federal Republic (or asbetween the
Netherlands and the Federal Republic, as the case maybe),there areno
special circrimstances which would justify another boundaiy line (Sub-
missions 3 of the Counter-Memorials).
14. The Danjsh and Netherlands Governments respectfully submit that
there is no support whakver to be found in any sourceof rules and principles
of international lafor aset af ruleof the kind put fonvard bythe Federal
RepublIc of Germany, whereas, on the other hand, the relevantniles and460 NORTH SEA CONTINENTALSHELF
princîpIes of international lawas fomulated in the submissions of Denmark
and the NetherIands, are in full confomïty with generally secognized and
accepted international norms relating to the drawing of boundary lines in
general and to the delimitation of freswater and seaareas in particular.
Section 1.Rules and minciples ofInteniatiooalLaw reiatingta the Deter-
minationof BoundaryLinesin General
15. Before going into a detailedanalysis of the allegations of the Fedesal
Republic relating to the contents of the relevant rules and principlof inter-
national law, it may be usefulto mal1 the general spirit of the rules and prin-
ciplesof internationallaw relating to the determination of boundary lines.
The rules and principles of present-&y international law relating to the
delimitation in spaceof sovereignty or sovereign nghts are indeed "marginal"
in the sense,that they presuppose the CO-existencein fact of various States-
or centres of power-each having already a "territory", i.ea,more or less
dehed space, within which such power is Infact exercised exclusivelyby each
State. Taking their startinppoint in this factual situation theruIesof inter-
national law do norpretend to "distribute" the total space, availablefor human
activities, between the varioStates,but ratheraccept in prjnciple the factual
situation, according to which each State determines itsown exclusive sphere
of activities in spaae, and dno more than limit the discretion of Statesin
thisrespect, particularly in vieof its relations with neighbouring StatesIn
other words, It is not the territory afState as awkole, but the boiindriryline
between the territories of neighbouring States-Le., the exact points where
the extension in space ofthe sovereignrights of one State rneets the extension
in space of the sovereign rights of another Siate-which is the objact of rules
and principles of internationalIaw.
Accordingly, where, betweenneighbouring States, theexact delimitation of
their respective territories is uncertain or disputed, international law has devel-
oped criteria forthemore precisedetermination of the boundary lineand settle-
ment of such disputes.These criteriaare of various kinds, butwhatever their
nature and character, the effect of the determination of thc boundary line on
the totalsurface of the krritoryof the one State in comparison with the total
surface of the territoxof the other State, inevera legally relevant element.
Tndeedthe rules and principles of international Iawrelating to delimitation
of territory betweentwo States do notproceed in the way allegedby the Federal
RepubIic of Germany. They do not start from the assumption that the total
territories of both parties put together (thereby iincludingthe area lying be-
tween the boundary line asclaimed by the one party and the boundary line
as claimed by the other party, i.e., the disputed area) aaesingle unit to be
shared out-"equitably" or othemise-between the two States in dispute.
Nor do they consider ~hedispurcdare0 as an area tok shared out between the
States in dispute. On the contrary, the nomal process is that the claim of each
party as to the boundary Ilne is put tathe test of the niles and principleof
international law;in short, that the better claim prevajls. And evenabound-
aryline is determined which does not correspond fu'llyto either daim thjs is
because the rules and principles of international law indjcate such boundary
line. The fact that such boundary linmight be found to "divide" the "disputed
area" kcause it lies betweeuthe two boundary lines as claimed bythe parties,
isno more than an optical illusion formed a posteriori, neither of the clairned
lines-nor, consequently, the "disputed ares"-having any legal meaning
under the niles and principlesof internationallaw.
16. This process of determination of boundary lines by the rules and prin- COMMONRWOINDEROF DENMARK AND THE NEMERLANDS 461
ciples of international laon the basis of the fact of the extension in space of
the sovereign powers of eachState rather than on the bais of division of any
particnlararea between States, is obvious botinthe decisionsof international
courts and arbitral tribunals and in the practice of States in determining the
boundaries of their respectiveterritoriby agreement ktween them.
The idea of "equitable distribution" of a specifiarea is absent from the
factors which are relevantin the detemination of a boundary line by agree-
ment orby decision of an international court or arbitral tribunal. Thucer-
tain preferencefor "natural" boundaries and for other boundary lines which
can easilylx identifieby the persons concerned, a3 well as the taking into
account in the determination ofa particular boundary line of socio-economic
factors such as the traditional or historic ofresources in aparticular area
by the nationals of one State rather thanby the nationals of another State,
have no relation whatsoeverwith the alleged "principle" of equitable distribu-
tion nccordin tga crilerioof thecornparalivetotal surfacof the nrea accruing
to one State and the other.
The wishes of the population of the area, lying between the boundary lines
claimed by the respectiveStates, sornetimes plaan important role in the final
determination of the boundary line, but nbuin this obvioushaçnothing to do
with "equitable" distributionof space ktween the States conoerned on the
basis of shares of the totd surface of aarea.
17. That the starting-point of the niles and principlcs of internatiIawl
reIatingto the determination of boundary lines is the extension of sovereign
rights in space, rather than the division-"equitable" or otherwise-of the
total surface oa specificarea, is particularly apparent where fresh water and
sea areas are concerned. Here indeed the concept of the natural continuation
of the land territory ofa State into the water area, and, consequently, the
concept of propinquity, are at the basis ofjudicial settlement and State practice
relating to the dclimitation of suareas.No doubt the boundary lines hally
laid down insuch areas arenot akwaysmathematically exactequidistance Iines;
but the deviaiions frorn such mathematically exact equidistance lines are in
principle limited to specific points and founded on considerations specifically
refated to such points. Again, considerationof sharing-out the total surface
according to some numerical proportion are wholly absent,
That the concept of the natural continuation of thland territory of a State
intothe waterarea adjacent tothe land territory liatthe basisofthe practice
of States relating to the determination, vis-&-visother States, of boundary
lines in rivers, lakes, straits, territorial waters, contiguous zones, fishing zones
and other sea areas, is arnply demonstrated by the boundary treatîes quoted
in Annex 13of the Danish Counter-Memonal and in Annex 15of the Nether-
lands Counter-Mernorial, aswell as by the three Geneva Conventions relating
to the law of the sea (Annexes 1, 4 and5 of the Counter-Memorials) and the
European Fisheries Convention (Amex 6 of the Counter-Memorials).
That concept naturally leads to an application of the equidistance principle
as the sforting-poifordeterrniningwhere the continuation ofthe Iand territory
of one State rncets the continuation of the land territory of another State.
Tndeedit is clear that, some form or another, and subject to simplifications
and corrections for reasons relating to specificpothesequidistance principle
isfollowedin the practiceof States, as illustrated by the treatiesjust rto.rred
In its Reply (paras. 34-39; 56-61and hnex) the Federal Republic attempts
to minimize the importance of this evidence of consistent State practice, inter
dia, by pointing out that (Reply, para. 37)"sorne of them" (ive.,boundary
lines established by the Treaties citein Annex 13 of the Danish Counter-462 NORTH SEA CONTINENTAL SHELF
Memorial and in Annex 15 of the Netherlands Counier-Mernorial) "are not
true eguidistanoe linesin the full sensebecauseonlya limited nurnber of points
on the boundary have ben debed as being equidistant from certain coastal
points".(Sirnilarrernarks are made at various places in the Anneto the Reply.)
Now obviously in praciice every boundary line drawn in accordance with the
equidistanceprinciple is nomore than approximare al"true" equidistance litze
in the mathematical senseof the word; there isalwayssome amount ofsimplifi-
cation in order to arrive ata practicable solution.
Eurthcrmore-as developed elsewhere in the present Rejoinder-ar specljîc
poiirts deviatlons from the "true"-or everi from the "rough"+quidistanfe
line may be ampted for reasons of "hiscoricrights" in a specjficareathrough
which part of the equidistance line would run or in view of "special circum-
stances" relating to specificbase-pointfrom which the equidistance Iine would
be construed.
But the relevant fact hereis that in al1those cases the concept of the natural
contjnuation of the land territory into the fresh-wateranseaareas, asreflected
in the equidistance principle, remains the basis of the determination of the
boundary line. And equally relevant is that, whatever deviations from the
equidistance line are admitted, the reasons therefor are aor to be found in
considerations relating to the equaIityor propartlonality of the total surface
of the fresh-water orsea areas Iyingon either slde of the boundary line.
18. IRparasaph 14 of its Reply the Federal Republic of Gerrnany attempts
to nullify the differencebetween the approach of the alleged principle of "just ,
andequitable share" and the approach of the existing rules and principles of
international law relatinfo the detemination of boundary lines, by qualifying
the distinction made in the Danish and the Netherlands Çounter-Memorials
ktweea delimitation and sharing-out of areas of the continental shelf as a
"rathm artificial verbal distinction". The only reason givForthis qualification
is that "it is evident that any delimitation betweentwo States riecessarilyallots
each of them a certain share of the sheso divided". Now obviously, as already
remarked above, if oneState claims a particular boundary line andthe ather
State claims another particular boundary line, it is possibto regard the area
lying between those two lincs as a "disputed area".If then, $y agreement or
judicial settlementa third boundary line, lying between rhe two ctairned lines
is determinedas dheboundary line, it is possibIe to compare a posteriori the
total surface of the part of the "disputara" Iyingon one side of that bound-
ary line with the total surface of the part of the "disputed area" lying on the
other side of that boundary. But the questionis no1whether suchan operation
is technicallypossible, but whetheitisIegallyrelevantfor the application of the
rules and principles of internationalIaw relating to the determination of the
boundary line. As explained above, the answer to the latter question isdefinitely
a negative one, for the simple but essentiareason that the rules and principles
of international law in this field deal wirh the posiiion of the boundary line
and are not concerned with the result in terms of proportional shares of the
total surfaceofany area,let alone the "disputed area". Indeed, wliat the Federal
Republic ofGerrnany qualifies as "the rother artificial verbal distinction" is in
reality anexpression of a fundamentaldi'ererice inIegalapproach.
One couldimagine an international Iegal order which distributed the total
spaceavailable for human adivities between the various exjstingStates, thereby
aIlottingto each State a particular territory on thebasisof its needsin com-
parison with those of othcr States. But itIs obvious that this is not the legal
approach of the rules and principles of internationallaw as they exist today.
On the contrary, those riiles and principles take their starting-point in the 464 NORTH SEACONTINENTAL SHELF
I
territory into thsea .ndeed the alleged principlas f~rmulated by the Eederal
Republic of Gerrnany, is in flat contradiction to Articles I2 and 3 of the
Geneva Convention on the Continental Shelf, which, in accordance with
previous and later State practice, determines the sovereignrights of the coastal
States by referenceto a delimited space (see also Art. 6, para. 3, of the Con-
vention).
21. Pcrhaps the mixing-up of resources and space, which already appeared
inparagraphs 30 and 35 of the Memorial,isintentional. Indeed in paragraph 35
of the Memorial a cornparison is made between what is there caEled "the
problem of the division ofa cornmon continental shelf" and the "apportion-
ment" of the "limited amount of water resources" of a river basin which
extends over the territories of several States "between the basin States".
As already remarked in paragraph 49 of the Danish Counter-Memorial
and in paragraph 43 of the Netherlands Counter-Mcmorial this reference to
the use of the watersof international riverisentirely beside the point. Since
in its Reply the FederaI Republic doesnot elaborate on this matter, it might
be supeduous to devote further attention to it. Howcvcr, since the so-called
"Helsinki rules on the uses of waters of international rivers" are the only
example mentioned anywhere by the Federal Republic of Germany of applica-
tion of a concept of a "just and equitable share", a few additional remarks
might be appropriate.
At the outset it should be noted that it is doubtful, to say the least, whe~her
the so-calleciHelsinki rules, drafted and adopted by a private organization,
reaIiyexpress existing international law adl,But even aparr from that, it is
obvious that itis impossible to compare a continental shelf witha drainage
basin. The concept of "drainage basin" and "basin Stale" in the Helsinki
rulesapply only to the non-navigationaiusesof waters.The problems of non-
navigational uses of waters arisc from the fact ofnature that water Pows
from one point to another. Accordingly conduct within the boundarics ofone
basin Statein relation to the water oadrainage basin whichextends over the
territories otwoor morc States necessarily affecthe use of thewater of tlze
same drainage basin within the boundaries of another State. This simple fact
of nature underIim the concept of treating a drainage basin as an integrated
unit. Thereisno such natural foundation for treating a conririentshelfas an
integrated unit. Surely it is possible raasiirgle geological structure extends
across a boundary line on the continental shelfas it is possible thaa single
geologicai structure extends across the delimitation lines between concession
areas on the part of the continental shelf appertaining to one State. Both
municipal Iegislations and the internationai practice of States show that the
problems arising from such a situation are nat solveby a modification of the
boundaries of the concession area or of the continental shelasthe case may
be, but by different methods which do not affect those boundaries. In rhis
connection reference ismade to paragaph 18 of the Netherlands Counter-
Memorial. Indeed ifthe Helsinki rules prove anything relevant to the present
dispute, it ir;that therenosconnection at al1between the "equitable" distri-
bution of resources and the dctermination of boundary lines in space. The
Helsinki niles themselves, whilc providingthat "each basin State is entitled,
wifhinifs ferritory, ta reasonable and equitabIe share in the beneficiauses
of the waters of an international drainage basin" (italics added) and that
"what is a reasonable and cquitableshare ... is to be determined in the Iight
of alrelcvantfactors ineach particularcase",do no!at al1attach to the treat-
ment of an international drainage basias an integrated unit any çonsequences
with respect to the Gounduriesof the basin States respective territaries. COMMONRWOINDER OF DENMARK AND THE NETHERLANDB
467
isan example, is particularly suited to conditions such as those which prevail,
intedria,in regard to the continental shelf. Morcover, unless the lineisto he
more or lessarbitrary, the precise limits to which sovereign righof a State
extend in spaçc could-in relation to the sea-bed and subsoil-hardly be
determincd in any other way than by the equidistance method if similar rights
of other States are Invulved.
The effective exercise of sovereign rights by a State in a particular area
cannot be acriterion, it bcing generally recognized thaas stated in Article 2,
paragraph 3, of the Geneva Convention on the Continental Shelf, the rights
of the coastal State doizofdepend on occupation, effectiveor notional, or an
any express proclamation.
Nor-the question of sedentary fisheries apart-could the rcgular use of a
particular area by nationds of one State rather than by nationals of another
State-"trüditional" or "historie rightsm-provide a criterion. Such "tra-
ditional" use for the purposes of exploration and exploitation of the natural
resources of sea-bed and subsoil dues not exist, and, even if it existed, is
excluded as a title to the continental shelby paragraph 2 of Article 2 of the
Geneva Convention on the Continental Shelf. Other traditional uses, such as
fishingin particular areas, cannot affectthe boundary line, those activitiesbeing
safeguarded by other provisions of the same Convention.
The ~Memorialand the Reply suggest considerations of "equity" ascriteria
for the delimitation.
Nom, obviously, such considerations, if atal1 valid, could only lead ta a
correcrioriof lines, drawn according to oiher criteria. These considerations, in
other words, could apply to the resulfof the drawing of boundaries according
to other criteria.
lndeed the whole argument of the Federal Republic b that the application
of the equidistance method in the particular case now before the Court results
in acomparatively small surface of the area belonging to the Federal Republic.
But the Mernorial and the Reply fair cornpletely to indicate for what reason
and on the basis of what considerations this result would be "hiequitable",
In plain words: why should the Federal Republic's continental shelf have a
larger total surface? And where should this additional surface be located?
And why shauld such additional surface be provided by Benmark andlor the
Netherlands rather than by other countries adjacent to the North Sea? And
why should only the Federal Republic receive additional surface andnot other
countries adjacent to the North Sca?
" The truth of the matter is that there issimply no basis, either in faw or in
equity", for thc Federal Regublic's claim for additional surface.
25. In this respect it is significant that the Fedcral Republic requests the
Court to recognize and declare that:
"4. ... the delimitation of the continental shelf in the North Sea
between the Parties is a matter which has to lx settled by agreement.
This agreement should apportiona just and equitablc share to cach of the
Parties in the Hght of al1factors relevant in this respect." (Reply, p. 435,
sripro).
Now, first of al], it an esiablished fact that neithcr the Federal Republic
and Benmark, nor the Federal RepubYicand the Netherlands, have been able
to reach agreement on the delimitation, since both pairs of States are in dis-
agreement on the basis for such agreement.
Consequently thc dispute could oniy be settled by the Court indicating on
what basis the boundary lines must be drawn.408 NORTH SEA CONTINENTAL SHELF
Apparently the Federal Republic requests the Court to declare that this
basis is: "apportjoning a just and equitable share to the Federal Rcpubliç of
Gerrnany, Denmark and the Netherlands in the light of al1 factors relevant
in this respect."
Clearly, as already pointed out jnthe Introduction, such a declaration of
the Court would be absolutcly useless for the settlement of the boundary
disputes between the Federal Republic and Denmark on the one hand, and
the Federal Republic and the Netherlands on the other hand. It would be a
thinly disguised non Iiqtreunless ir werc accompanied by a statement why,
where and to what preciseextent the equidistance lines should bc deviated
from in the detemination of the boundav Iines.
SectionTIR.The Alleged Standardof "the Coastal Front"
25. In its submissions in Part 11of the Reply the Federal Republic does not
indicate why, where and to what precise extent the equidistance lineç should
be deviated from or displaced in the detcrmination of the boundary Iinesof the
continental shclves appertaining to Denmark, the Federal Republic and the
Netherlands respmtively.
By failing to do so, andby introducjng instead the notion of "proportionali-
ty" of the surface ofthecontinental shelf appertaining toa State, to the length
of what is called "the coastal front" of that State, the Federal Republic once
again rnoves out of the realm of existing rules and principles of international
Iawinto the field of arbitraryconstructions.
As dernonstrated earlier inthe present Rejoinder there isno rule or principle
of international law requiring the application of any standard of "equitable-
ness"to the rcsult, in terrns of total surface, of the drawing of boundary lines.
Indeed the Federal Republic inifs submissions carefullyrefrains from in-
dicating what, in itsopinion, would be the content ofsuch a "standard ofequi-
tableness". In the Reply iisclfhowever, the Federal Republic maintains that
"the breadth of the coastal front of each State is the only appropriate standard
by which to determine the eq~iitablenessof the apportionment effected bythe
proposed boundary" (para. 97 of the Reply) (italics added).
Now-lcaving aside the fact, that the notion of "proportional shares" is
wholly alien to the rules and principles of international law relating to bound-
aries-the concept of "coastal front" isacornpletelynovelinvention in the field
of rnaritimelaw. As pointed out in paragraph 17 of the present Rejoinder, the
existingrules and principles of international law relating to the delimitation of
sea areas are based on the concept of continuation of the land territory of a
State intothe sca. Obviously,thjs continuation starts fromthe actual coastline.
Accordingiy, asconfirmed in Article 3 of the Geneva Convention on the Ter-
ritorial. Sea and the Contiguous Zone, the normal baselinefor deiermining the
extent of seaareas is the low-water line along the CoastIn particular localities
and undcr certain conditions straight baselines may be drawn with the effect
of movingseawards the outer Iimitsof the seaareas involved.But this "straight-
ening-out" ofthe baseline shalI not resuIt in a Iine which bears no relation at
al1to the actual Iow-waterline and the land-domain bhind it (cf. Art. 4 of the
Geneva Convention on the Territorial Sea}.
Ncither in the Geneva Conventions and the travaux prkparaioiresnor in the
practice of States can any tracek found of the concept of a "coastal front",
the length or breadth of which would determine the extent in space of the
rights ofa coastalState. Apart from the dcscription in the Reply, paragraph 94,
of the Borkum-Sylt line the Federal Republic of Germany has not in somany
words described the so-called "coastaI fronts" of the States involved in this COMMONREJOINDEROF DENMARKAND THE NETHERLANDS 469
dispute. And although the Federal Republic has in the Mernorial and the
Reply-not counting what is contained in the Annexes-presented no les han
26 charts and diagrams, no graphic description of the "coastal frontsw-a
concept to which the Federal Republic attaches the utmost importance-has
been given. Inthese circumstances the two Govcrnments feeljustifieciin trying
to show in figureA(on p. 470, infra)what the "coastal fronts" of the three States
appear to be asFar as this concept can be deduced£romthe text of the Memorial
and the Reply and from some abstract diagrams presented in the Reply. A
simple glane at this figure is suficient to show that the concept of "coastal
front" has no basis whatever either in geography ot in law.
In paragraph 97 of the Reply, it is stated that "the Fcderal Republic main-
tains that not the distance from some single point on thecoast but rather the
breadth of the coastal front of each State isthe only appropriate standard by
which to detemine the equitableness of the apportionment effected by the
proposed boundary" (italics added).
In itself the statement just citeisremarkable in the sense that it compares
criteria of an essentially different kind. Whereas the equidistance principlor
method i~meant to determinethe boundaries of an areaeverysi~lepoirit wi~hin
whichis nearer to the coastline (i.e., obviously a poinon the coastline) ofone
State than to the coastlin~[i.e., obviouslnny point on the coastlin~of anorher
State, in other words,the locafionof the lirnitsof the arca, the allegcd criterion
or standard of"the breadth ofthe coastalfront" (at other placesinthe Memorial
and in !he Reply also called"coastal frontage") isa criterion for the distribution
of the tucolsurfme of the area exprcssed ina number of square miles or kilo-
metres, the shares Io be proportionate to the length or breadth of an artificial
line representing "the general direction of the coast".
Now, one simply cannot compare a criterion for the location of the limits of
an area with a criterion for the size of the shares of the total surface cifan area.
As already remarked before, the only criterion compatible with the concept
of the continuation of the land territory isa criterion based on the location of the
actual coastline.
Criteria of total surface are irrelevant within rhe context of the continuation
of land territory. Equally irrelevant for the concept of continuation is the
length or breadth of an artifîcialine representing "the general direction of the
coast", quite apart from the fact that in rnany cases the total coastline OCa
particular State simply does not have one "general direction". It should also
be noted that even if, in the abstract, ii may for some purpose make sense to
reduce and simplify a particular actual liiie to onc or a serics of straight lines,
caIled "the gerieradirecclott"of the actual line, the [eng~hf such an ariificial
line has no reiationship whatever with the length of theactualline or with any
other reality.
Ti is therefore confusing to compare "the distanoe from some single point
on the coast" to "the breadth of the coastal front". This wayof presenration
seems to suggest that points on the wastline which deviate considerably from
the "gcneral direction" of the coastline should ixleft out of account in deter-
rnining the equidistance line. However,this suggestion isnot borne out by the
remainder of the sentence justquoted. In the remainder of the statement ilis
nul the direction,but thc lei~grhof the artificial Iine called "coastal frontage"
which is considered the only appropriate standard by which to determine the
total surface-not the location of the lirnits-of the continental shelf to be
allotted toa given State.Figure A COMMONREJOINDEROF DENMARK AND THE N~RLANDS 471
SectionIV. The So-Calied "Sector-Thmry"
27. The attempt of the Federal Republic to get away from the necessity of
indiçating preciselywhy, whereand to what extent the equidistance linesshould
ix deviated from in the determination of the boundary lines on the continental
shelf culminates in the construction of the Noreh Sea area as a "roughly cir-
cular" area, to be divided in "sectorsIn this constmction any and every con-
nection with the realities of the situation-thactual location of the coastlines
and the form of the North Sea-is completely thrown overboard.
Jt is significantthat onlythrough such a construction canlink be established
between the location of the limits in the area, the total surface of that area and
the length of the imaginary coastline.
Jndeed if an interna1 seaarea is perfectly circular, that is if there is no land
within that circle and no sea outside that circle, lines could be drawn from the
centre ofthat sea area to the frontier points on the coastline, whichlines could
then be taken as the dividing lines on the-equally circular-sea-kd. Jf the
whole sea-bed is continentak shelf or if the configuration of the continental
shelfissuch that ils nateira1outer lirnit (the 200 metres isobath] runs exactly
paralleto the coastline, the result would thbe that for each coastal State the
total surface of the continental shelf appertaininto it would k exactly pro-
portionale to the length of its coastline as it would beexactly propcirtionate Co
the length of the straight line connecting its froniier points. At the same tirne
the boundary lines thus dram would be exact equidistance lines!
In other words,insuchan imagiriarysituation the result is tsame whether
the boundary lines are drawn taking as a starting-point the land territory
and its continuation into the sea from the actual coastline, or whether one
shares out the sea area, taking asa starting-point the "middle" of that sea
area.
Inany acttrasituation, however, and in particular in the case of the North
Sea, the choice of a point "in the middlof the sea9*,as wellas the drawing of
boundary linesfrom such point to the frontier points on the actual c~astlines,
would be pureIy nrbitrary even in the sharing out approachadopted br the
Federal Republic. There js simply no escape from the fact that any test of
"equitableness" in terms of total surface of an area cannot determine the
location of thelincsdclimiting thatarea.
28. In its Reply the Federal Republic states (para92):
"The Federal Republic has not attempted to regard the North Sea as a
casewhere the delimitation of the continental shelf between the adjacent
States could be effcctcd by application of the sectoral division purand
simple; it has considered the construction of sectors as a 'standard of
eilaluafionby whichato judge whether a certain boundary delimitation, in
particularby the piinçiple of equidistance, could be regarded as equitable
under the circumstances of the case." (Ttaliadded.)
But how could the rnnfhematicad fact that ia perfectly circular intemal sea
the drawing of boundaq lines according to the equidistance principle results in
sectors, the surface of which is proportional to the lençth of the coastline,
provide any standard of evaluation in law for the drawing of boundwy lines
in sea areas of a cornpletely different shape, which are not fully surrounded
by land, wherethe configuration ofthe coastlines ifarfrom circular, and where
the length ofeaçh coastlinehas no relationship whatsoeverwith the length of an
arc ofcircleor straight linejoining its frontier points?472 NORTH SEA CONTINE~AL SHELF
Indeed, if the Federal Republic "has considered the construction of sectors"
only as a "standard ofevaluation" ofthe "equitableneçs" of the total surface of
the continental shelf which appertainç to the Federal Republic under the
principle ofequidistance, the whole so-called "sector theory" hasno indepen-
dent meaoing and boils down to a somewhat elaborate way of askingfor more.
29. On the ooter hand it appas from the statement in the RepIy, just
quoted, that the Federal Republic has givenug the-indeed untenable-claim,
put fonvard in paragrapb81 of its Mernorial, to the effectthat-
"in an apportionment of maritime areas which are surrounded by a
number of States, it would bean equitaMe principle of division for every
coastal Slate to receiva portion which extended fothe rniddo lethe sca"
(itaIicsadded).
Actually the Federal Republis-in paragraph93 of the Reply-recognizes
that "the circle line in figure21" (of the Mernorial) "may indeed have beena
little misleading .." and "might have been drawn with a different radius or
omitfed alrogether" (italicsadded). This admission rather underlines the purely
arbitrary character of both the so-called "sector theory" and the concept of
"coastal front" as appliedto theNorth Sea.
Ttis obviously always possiblete choosea point in the sea as representeon
a map, anddraw a circle having that point as its centre. But if the map faith-
fully represents the North Sea nosuch circle lincan be construed that bears
any relationship to the actual coastiines of the NorSea countries!
The Federal Republic's claim to "the middle of the seamindicated at least
one-be it fictitious-pointof theboundary line as it should run in the view
of the Federal Republic. Now that this claim is abandoned the thesis of the
Federal Republic iswduced to one reIatingto the total surface only of the con-
tinental shelfappertainimgto itAs such it does not, and could not, specify at
which point or points a deviation ftam the equidistance lines is considered
justified by the Federal RepubIicnor, afortiorw ih,at are the considerations
relating to those points, whicouldpossiblymiliratein favourof suchdeviation.
Section V. The FederalRepubiic's Concept of "Speciai Circumstances"
30. Contrariwise, Denmark and the Netherlands, whiIe admitting that the
rules and principles of international Iawprovidforthe possiblejustification of
a boundary line other than the equidistance line, maintain that there areno
special cjrcumstancesw, hich, in the relationship between the Federal Republic
and Denmark, or in the relationship betwen the Federal Republic and
the Netherlands, wouEdjustify a deviation from the equidistance line.
As amply demonstrated in the Counter-Mernorials and in the present Rejoin-
der, such "special circiimstances", in order to quahfyfor thc possiblejustifica-
tion of another boundary line, should relate to specificgeographic points and
the corresponding specificarea.
Thus, in particular withrespect to the application of the equidistance prin-
ciple in the delimitatioof nvers, lakes and territorial waters, deviation from
the exact equidistance lines is sometimes bwd on the consideration that at
specificpoints those equidistance lines would insuficiently take into account
the traditional use of a specific area crosscd by such equidistance line (cf.
"historic title" in ArT2 of the Geneva Convention on the TerritoriaSea).
Again, in the application of the equidistancc principle, there mighreasons
to a certain extenttodisregard particular points of the baselines of one State,
which-taking into account their position with respect to the baselines of the COMMONRWOINDER OF DENMARK AND THE NETHERLANDS 473
other State-deviate extremely from otherwise relevant points in their neigh-
bourhood on the baselinesof the former State. But these types of circurnstances
arefuridamen~ally dtfferenrfrom the type of circumstances which the Federal
Republic of Gesmany attempts to invoke in the present dispute.
The Federd Republic-in paragraph 82 of the Reply and at various other
places in the Mernorialand in the Reply-alleges:
"if geogaphicd circumstances bring about that an equidistance boundary
will have the effectto cause an unequitable apportionment of the con-
tinental shelf ktween the States adjacent to that continental shelf, such
circurnstancesare 'special'enough to justify another boundary line".
Now it is obvious that theboundaries, esiaMishedon land,arriveat acertain
point at the coastlinand that, from thereon, the equidistance boundary in the
seaarea isex kypathesi the result of "geographiml circumstances'',Le., of the
configuration of the coastline. If such configuration of the coastlwere to be
qualifiedas a "special circumstance" in any and everycasewherethe determina-
tion of boundary lines in the sea area by application of the equidistance prin-
ciple were said to resultin an "unequitable share" in the lotal surface of sea
axa, the connection betweenthe location of the boundary line inthe sea area
and the configuration of the coastline would be completelysevered.
In otherwords, and asalready remarkedbefore, itis logically impossible to
combine the idea of "equitable distribution" of the total surface oa sa area
with the ruleof determination of baundary lineswith rcferenceto the configura-
tion of the coast.The latter rule necessarilyrequires,for the possible justifica-
tion of adeviation from theequidistance line, that there is something "special"
inthe location of spocificpoints of the coastline.
As amply demonstrated in the Counter-Mernorials the FederalRepublic did
not-and, indeed, cannot-indicate any "special" point or points in the con-
&ration of the coastlinof the three States involved in the presentdispute
which could possiblyjustify a deviation from the equidistance lines.474 NORTH SEACONTINENTAL SHELF
THE APPLICABlLlTY OF THE PRiNCLPLESOF DELIMITATION
EMBODIED IN ARTICLE 6 OF THE CONVENTION ON THE
CONTINENTALSHELF
Section1. The PrinciplesandRdes of Law Invoked byDenmark md the
Netherlands
31. The Governmentsof Denmark and of the Netherlands, in presentirig
theirsubmissionsin their respectiveCounter-Memorials, asked the Court when
fulfilling its task under Articlof1the Compromis to adjudge and deçlare
(Submission 1):
"nie delimitationas between the Parties of the saareas of the con-
tinental shein the North Sea is governed by the principles and rules of
international law which are expressedin Article 6, pwagraph 2of the
Geneva Convention of 1958on the Continental Shelf."
The principles andrulesof international law expressein that paragraph,as
the Court is aware, are:
"Where the samecontinental sheif isadjacent to thterritories otwo
adjacent States, the boundary of the continental shelf shd be determined
by agreement between them. In the absence of agreement, and unless
another boundary line is justifiby specialcircurnstances, the boundary
shall be determined by applicationofthe principle of equidistance from
the nearestpoints ofthe baselinfrom whichthe breadth of the territorial
seaof each State is measured."
On thebasisof these principlesthe two Govements n5ke.dthe Courtfurther
to adjudgeand declare(Submission 2):
"TheParties beingin disagreernc~it,unless anothboundar is justiiied
by special circurnstances, the boundary betwthem is to be determined
by applicationofthe principIeof equidistancfrom the nearestpointsof
the baseIjnesfrom which the breadth of the territoseaof each Stateis
measured." {Italicsadded.)
EinalIy, they asked the Court to adjudand declare(Submission 3):
"Speciaclircumsiances whichjwstifr amilter boundary lirinot hoving
beenestublished,the boundarb yetween the Partieistobe determined by
application of the principIe of equidistance indicated in the preceding
submission." (Italics added.)
32. InLhapter 11of the Reply (gara. 20) the FederalRepublicprofesseto
findthat the Counter-Mernarials a"not veryclearon the substanceof thelegal
ruIc''(italicsin the original) which the two Govemrnents considershould oblige
the Federal Republic to acceptthe principlofequidistanoe with regard to the
boundarïes of itcontinentalshelf.It claims that "the necessarydistinction
between the rnerhadof drawing the boundary liaccording tothe principle of
equjdistancefrom the nearest points each coast, and the allegedrule law
whkh prescribesthe appijcationof thrnerhodunder certain or, as the Counter- COMMONREJOLNDEROF DENMARK AND THE NETHERLANDS 474
Mernoriai interprets it, under nearal1circumstances, ismissing" (italics in the
original).
33. The submissions in the Counter-Memorials, however, are crystalclear
as to the substanceof the legal rule which the two Governments consider
should oblige the Federal Republic to acrept the p~incipleof equidistance with
regard tothe boundaries of itscontinental shelf. It is the legal rule cxpressed in
Article 6, paragraph 2, of the Continental Shelf Convention which, when ap-
plied to the circumstances of the present cases, lads logicallyto the result that
the Federal Republic is obligea to accept the determination of its boundaries
"by application of Ihe prinçiple ofequidisfancfrom the nearest points of the
baseIinesfrom which the breadth of the territorial sea of each Stateismeasured"
(italics added). Furthermore, the precise substance of the legal rule invoked by
the two Governments against the Federal Republic was repeatedly indicated
and underlined in their respectiveCounter-Memorials.
34. Nor js there any "necessary distinction" between the method of drawing
the boundary line according to the principle of equidistanand the ruleofIaw
invoked by the two Govemments against the Federal RepubIic. The supposed
"necessary distinction" is nothing but a dogma introdiiced by the Federal
Rcpublic in Par tI, Chapter11,of the Mernorial. Assertinginthe opening para-
graphof that Chapter thatthe principleofequidistance was adopted in Article 6
of the Continental SheIfConvention and in Article 12of the Territorial Seaand
Contiguous Zone Convention as a rnethodfor drawing maritime boundaries,
the Federal Repuhlic thereafter tenaciously referred to the principle of equi-
distance asthe "equidistance method" oras a mere "techniquefor the drawing
of maritime boundaries" (para. 46). But that isnot how the matter appears
either in its substance or in the work of the InternatioLaw Commission or
in the Continental Shelf Convention itself.
The delimitation of maritime boundaries between either "opposite" Or
"adjacent" States raises botha problern of the principle bywhichtodetermine
the course of the boundary and aproblem of the mefhodby which, the principle
king settled, the course of the boundary is actually to be delimited. It is one
of the virtues of the equidistance principle that it provides the basis for the
solution of both problernsat one and the sametirne.It supplies firsfaprinciple
forthe delimitation of the maritime areas in question, namely the principle that
areas nearer to one State than to any other State are to be presumed to fall
within its boundaries rather than within those of a more distant State; andat
the same time a practical geornetrical method for defining the boundary in
accordance with the principle, namely the construction of aline the pointsof
which are at equal:distance from the nearest points of the respectiveçoastlines
of the twoStates.
This double character of the equidistance criterion as botha principle and
amedhodis shown in the rwommendation of the Cornmittee of Experts in their
Repart of 18May 1953(Danish Courtter-Mernorial, Annex 12 A and Nether-
landsCounter-Mernorial, Annex 7):
"After thoroughly discussing different methods the Cornmittee decideci
that the (lateral) boundary through the territorial sea-if not already
fixedotherwise-should be drawn according to theprînc@le ofequidistance
from the respectivecoastlines." (Italics added,)
If the Cornmitteeasa body of technicians,mayhave approaçhed the problern
ptimarily from the pointofviewof "methods", itisclear that they at the same
time recognized itscharacteras a "principle". Not oniy did theyspeak ofitas476 NORTH SEA CONTINENTAL SHELP
l
such but they occupied themselveswith the question whether or notit would in I
al1casesgive an eguitable result.
In the Commission itselfthe SpeciaIRapporteur (M. François) at once trans-
lated the recommendation of the Experts into provisions which manifestly
expressed the equidistance criterionas aprincij7leand asa Iegalrule:
"2. Where the same continental shelf is contiguous to the territories
of two adjacent States, the boundary ofthe continental shelf appertaining
to each Siate should be drawn according to the principle of eqtridistance
from the respectivecoastlines of the adjacent States.
3. If the parties cannot agree on how the lines areto be drawn in ac-
cordatice wifh fhe princigles set forth in the preceding paragraphs, the
dispute shdl be submitted to arbitration1."(Ttalicsadded.)
Inthe subsequent proceedings in the Commission itwas in the character of
a principIe and legal rule that the equidistance criterion was discussed, not of
a mere "rnethod" or "technique". Nor can itbe seriouslyquestion4 that it was
in the character ofaprinciple and rule of Iawas wellas of a inethodof delimi-
tation that the equidistance criterionwas embodied in the Continental Shelf
Convention at Geneva in 1958.
35. Curiouslyenough, the Federal Republic seernsitself in paragraph 36 of
the Reply to have admitted the duaI character of the equidistance criterion as
both a "principle" and a "rnethod". Riding its hobby horse of an alleged
fundamental djfference betwaen median lines between "opposite" States and
equidistance lines between "adjacent" States, it there said:
"However persistently the Counter-Memorial may refuse to admit it,
there can beno doubt that ~hefuric~ioonf maritïme boundariesis not a mere
'delimitation'of the inarifin~earea each Store controls, but also, nul
primarily, nnequitablepartition ofthe maritime area berween the States
conceraed."(ItaIics added.)
Even if this proposition could be assunied to be true, it seerns pertinent to
ask the Federal Republic whether the 63 States, ineludir~fheFederalRepublic
itseK which voted in favour of the text of Article 6 of the Continental Shelf
Convention at Geneva arenotto be presumed to have adopted the equidistance
criterion in paragraph 2 not as a mere mefhodof delimitation but "also iynot
primarily", as "an eqiciiablepnriitioof the rnaritittte area beiweeit the States
conccrned" (italics added).
In any event it isclearthat any partition of maritime areas cannot be com-
pletely detached from al1 the accepted principles governing delimitation of
maritime areas,as the Federal Government maintains.
36. In short, the Federal Republic's attempt to separate the equidistance
criterion as a princkle of delimitation from the equidistance criterion as a
mefhodofdelimitationjs cornpletelyunjustjfiedinthe context of the Continental
Shelf Convention. The alleged "necessary distinction" is clearly non-existent
andcannot serve the Federal Republic's purpose of trying to undermine the
status of the equidistance principas a generallyrecognized rule of law for the
deIimitation of continental shelf boundaries as betweenadjacent States.
37. Chapter IIof the RepIy further containsa generalattack on the subrnjs-
sipnsof the Danish and Netherlands Govmments conceming the prjnciples and
mles of internationalIaw appIicable to the dclimiiationofthe boundaries now
YeaearboookftheI.L.C., 1453, ol. 1, para37,p. 106. COMMUNREJOINDEROF DENMARK AND THE NETHERLANDS 477
in question. This attaçk takes the fora seriesof related, if disjoinary-
rnents which the two Governments propose to examine under two main hm&:
(1) the status of the equidistance-special circumstances ruasa generally
recognized rule of internationallaw; and (2) the position of the Federal
Republic of Germany in relation to that rule.
Section11.The Statusof theEquidistance-SpecialCircumstancesRule asa
genemlly RecognizedRuleof International Law
A. THEARGUMENT O F THE DANISH AND NETHERLAN GOSVERNMENTS
38.In Chapter II of the Reyly,as in the Mernorial, the arguments of the
Federal Republic are in some measurernisdirectebecause it persists in repre-
senting thatthe kgal ruIe invoked by the two Governmentisthe "equidistance
'
li~ie"pure and simple whereas iis,of course, the application of the "equi-
distance princele unlessanofherboundar iyjusr$ed by speciacircumsfunceY"'
In paragraph 21 it further distorts the legal position takup by the two
Governments in their Counter-Mernorials by asserting:
"The Counter-Mernorial regards the equidistance Iine as the 'general
rule' for al1sorts of maritime boundaries (Dan. C.-M., paras. 61, 84-90,
115; Neth. Ç.-M., paras. 55, 78-8109) as if it had the same legd validity
for al1 situations, irrespective of whether the boundary line hato be
drawn betwcenadjacent or opposite coasts, whether theywere boundarjes
in Straits, in waters near the Corsin the wider regions of the open sea,
or whether the delimitationwas made for the purposes of custom and
fishery control or for the division of subrnarine resources. By treating the
existing maritime boundaries aljke the specificfactors relevant to the ap-
plicability the equidistance line for delirniting continental shelf bound-
aies rnight be disregarded."
Thc paragraphs in the Counter-Mernorials mentioned by the Federal
Republic in no way bear out the assertion, by whichthe Federal Repuseems
to suggest to the Court that in their Counier-MemoriaIs the two Governments
have invoked the equidistance principleas a general rule of customary law
governingthe delimitation of nll maritime boundaries bjndingsiichupon the
Federal Republic.
If that is the meaningthe assertionit ian inadmissiblepresentationofthe
argumeiits of the two Govcrnments in their Counter-Memorials, where they
expressly stated: Tt is nat here a question of establishthe "equidistance
prjnciple" as a principle universally binding in boundary delimitation.
39. The arguments, rneticulouslydevelopedstep by step in Chapterof Part
II of the Counter-Memorials, may be summarized asfoilows.
In the State practice prior to the definitiveestablishment of the coastal State's
rights in the continental shelf at the Geneva Conference of 1958 the tendency
was to refcr in general terms to the delimitation of continental shelf boundaries
on "equitable principles". But the conccpiaodelimitation on equitable prin-
cipleswas afterwards converted, through the work of the International Law
Commission and through the Geneva Conference into the rules set out in
Article 6 of the Continental SheConvention which accept the equidistance-
special circumatances principforthe delimitation of continental shelf bound-
ariesas a rule of law (Danish Counter-Memonal, para. 61; Netherlands
Caunter-Memorial, para. 55).This development took place between 1951and
1958through the work of the Cornmitteeof Experts and the International Law
Commission and through the endorsement of their views ai the Geneva478 NORTH SEA CONTINENTAL SHELF
Conference (Danish Courater-Mernorial, paras. 63-71 and 75-79; NetherIands
Counter-Mernorial, paras. 57-45 and 69-73).
Thughout the period during which the codification and progressive
development of the law of the seawasunder consideration by the International
Law Commission the whole doctrine of the coastal State's rightsover thcon-
tinental shelfwasstiIlin course of formation. The iiniIateral claims which had
been made by individual States varied in their natura end extent; and many
coastal States, încluding all the Parties tothe present disputes, had not yet
promulgated any claims, although Denmark had made her position clear
(Danish Counter-Memorial, paras, 12 and 13).The work of the Commission
and of Gouernments in theu repliesto theCammission both klped to consoli-
date the doctrine in international law and to çlarify its content. This it did
no less in regard to the delimitation%of boundaries between States on the
continental shelf than it did in regard to the nature and extent of the legal
rightrof coastal Statesover the continental shelf. Thus,just as the work of the
Commission and the contribution to the work made by governments were
important factors in deveIoping a consensus as to the acceptability of the
doctrine, so also werethey important factors indeveloping a consensu assto
the acceptance of the equidistance-special circumstances principle as the
general rule for the delimitation of continental sheIf boundaries (Danish
Counter-Mernoriai, para. 72; Netherlands Counier-Mernorial, para. 66).
The equidistance-specid circurnstanoesrule wasembodied in the Continental
Shelf Convention at Geneva by analmost unanimous vote. Furthermore, the
equidistance principle which is its basisstifat+frorn king a novelty in 1958,
was a principle which atready had wide roots in the Statepractice concerning
sea and fresh-water boundaries. State practice, as demonstrated in an Annexto
the Counter-Mernorials (Danish Annex 13; Netherlands Annex 151,showed
Shat in 1958there already existed a very considerable number of examplesof
recourse to the equidistance principlor same variant ofit for the delimitation
of differentkinds of seaand fresh-water boundaries. In short, the rules for the
delimitation of continental shelf boundaries embodied in Article 6 ofthe Con-
vention were an expression of n principlealready hown and accepied in State
prricticeinrelnfionto maritimehoundaries and were #lausirzfulharmony with the
exisrit~gpracficeand concepis of mcnritime internationallaw (Danish Counter-
Mernorial, paras8 .4-90; Netherlands Counier-Mernorial, paras. 75-84).
State practice since the Geneva Conference, by the numerous ratifications of
the GencvaConvention and bythe numerous delimitations of continental shelf
boundaries on the basis of the principles expressedin Article 6, amply confirms
that today those principles possess the status of the generally recognized rules
of international law appIicable to the delimitation of continenta1 shelf bound-
arjes. Thoseprinciples have &en applied not only by the States parties to the
Continental SheIfConvention butalso byStates, includingthe Federal Republic
which have not yet become parties. It iswith regard to the present boundaries
alone, and this only with reference to "thejr further course" beyond partial
boundaries already determined on the basis of the equidistance principle, that
an example of a State's resisting the normal application of the principIe of
Article 6 isto be found.
Finally, the pnnciples expressed in Article 6are Eullyconsonant with, and
even demanded by, the radio Iegisof the Continental Shelf Convention. Under
Articles 1 and 2 each wastal State isrecognized to posscss ipsojure sovereign
rights ofexploration and exploitation ouer the sea-bed and subsoil of the sub-
marine areas adjacent to its coasts. Inherent in this concept is the principle
that areas nearer to one State than to any other State ato be presumed to fa11 COMMONRWOINDER OF DENMARK AND THE NETHERLANDS 479
1
within its boundaries rather than within those oamore distant State; and the
applicationof this principle isrealized aydelimitationin accordance with the
equidistance principlc (Danish Counter-Mernorial, para. 115; Netherlands
1 Counter-Mernorial, para. 109).
40. Such, in outline, is the case presented by the two Governments intheir
respective Counter-Mernorials regarding the status of the principles çontained
in Article 6 of the Convention as the generally recognizedrule today for the
delimitaiion of continental shelf boundaries. They have not asked the Court
to decide that the equidistance principle or evcn the equidistancespecial
circurnstances principleia general rule of customary law governing the delimi-
tation of al!forms of maritime boundaries, Impressivethough the evidencemay
be in favour OF the equidistance principle asa norrn for the;delimitation of
maritimeboundaries, the Court is here concerned with a narrower question-
the question of the principles andrulesof international law applicable to the
delimitation of the boundaries of the areas of continental shelf appertaining to
coastal States. What the two Govcrnments have asked the Court to decide is
that the rapid development and general recognition of the coastd State's righrs
in the exploration and exploitation of the continental shelf adjacent to its
coasts has beenattended by a parallel development and general recognition of
the equidistance-special circurnstances principle as the general nile, in the
absence of agreement, for the delimitation ofb~undariesbetween the areas of
continental shelfappertaining to differentcoastal States;and that this principle,
being an integral part of the lanow generallyrecognized as the law governing
the continental shelf, is binding upon any c~astal State which claims areas of
continental shelfas appertaining to it under that law, whether under thCon-
tinental Shelf Convention itself or under a cnstomary right recognized and
defined in that Convention.
41.ln attempting to undermine the above arguments the Fedecal Republic,
as alrcady indicated, makes considerable play with its supposed "necessary
distinction" betweenequidistance as a mefhodCora boundary and asa principle
prescribing the application of this rnethod. The spurious charactof thisso-
called "necessary distinction" hasbeenpointed out above (para. 36): thequi-
distance criterion is at onaernethodof limitation and a pritxciplof division,
namelyequality of distance from the ncarest points of the respectivecoasts of
the States conoemed, In the Reply, however, as in the Mernorial, the Fedcral
Republic places its main emphasis on a further distinction: a supposed difler-
enceinthe validityoftheeqwidistancccriterion as a principleforthe delimitation
of a boundary between "opposite" Statesand between "adjacent" StatesHere
itsobjectivesappear to be four-fald: (todiminish the significanceof the State
practice addiiced bythe two Governrnents as showing the wide recourse tothe
equidistance principle in delimiting sea and fsesh-water boundaries; (2) to
provide a plausible reason for questioning the general applicability of the equi-
distance principlas between "adjacent" States, i.e., of tlie provisions in para-
graph 2 of Article of the Convention; (3)to provide a plausible reason for its
acceptance of the use of the equidistance principle in the delimitation of
al1other continental shelf boundaries in the North Seabut not its own; and
(4) to providea plausible reason for its acceptance of the equidistance prin-
ciple in the delimitatioof its own continental shelf boundary in the Baltic
Sea.480 NORTH SU CONTINENTAL SHELF
42. The preoccupations of the Federal ~epdblic concerning these rnatters
are easily understood. The Federal Rcpublic has taken the position before the
Court that there is anly ane-very broad-principle which is binding as law
upon all North Sea States, including itself, in the delimitation of their con-
tinental shelf boundaries: the principle that "eachçoastalState is entitledtoa
just and equitable sharel". This so-called principle oflaw,as has already been
pointed out and is indeed evident from its mere formulation, lacks any objective
criteriaor standards for its application. Accordingly, the Federal Republic is
apprehensive that, even il the Court were CO admit that entirely vague formula
as an applicable principle of law for the purposes of the presencase, ifniight
very wll tki~tkit Iogical, on [liebcisisof thepririciplesstatiriArticle6 ofthe
Conventiori,of fhe deliwiitaiionof nurnerouscoiiiipie~rshev boundaries it~con-
formity with those principles and ofthe wide use of the equidistanceprinciple
in the o'EIimirafioof olhersen andjresh-water boundaries,still to laydown thar
ivrbhecontext ofmaritime areas a jus8and cqlrifablesliare istkai whichresults
fromthe applicatiorr of the equidistanceprinciple unlessirisafirrnalivelyestob-
lishedchar ano~fierboundaryisjustiJiedby specialcircumsf~nces.Tnother words,
the Court might very well find in the numerous precedents of the use of thc
equidistance principle inState practice the objectivecriteria and standards oa
"just and equitable" delimitation which the Federal Republic's very broad
formula so evidently lacks.
43, The Federal Republic, it would seem, had made up its mind that, having
regard to the extensive acceptanceof median Iinesin State practice, including
its own acceptance of median liirdelimitations of the continental shclf in the
North Sea and the Baltic, the Court is almost certain to concludt that rnedian
line delimitation-equidisdtea lmcitation between "opposite" States-is
today generalIyrecognizedas the legallyappropriate expression and application
of the concept oFa ''justand equitable share" for maritime areas in the absence
of special circurnstances. For this reason it has ,sought in its Mernorial and
Reply to make a sharp distinction betweenthe use of the equidistance principle ,
-in itsmedian line form-for delimitation of boundaries between "opposite"
States and its use-io its lateral Iine form-for delimitation of boundaries be-
tween "adjacent" States. But for this distinction no hasis is to be found in
State practice.
44. In seeking, as it dms in paragraph Zt of the Reply, tu drive a wedge
between "median line" boundaries for "opposit~" States and "equidistance
line" boundaries for adjacent States the Federal 'RepubIic has the narrowest
limits within which to manauw. It finds itself gravely ernbarrassedby the
fact that neither the TerritoriaSea and Contiguous Zone Convention aor the
Continental Shelf Convention itself makes the slightest difference ktween the
&O types of case. The argument by which it attempts to escape From this em-
barrassing fact appears to the two Governments to be wholIyartificialand un-
convincing.
Aftcr accusing-quite gratuitously-the two Governments of treating al1
maritime boundaries alike, the Federal RepubIic proceeds in paragraph21 te
argue as Follows:
"By trcating the existing maritime boundaries alike the specific factors
relevant to the applicability of the equidistance line for delimiting con-
tinentalshelf boundaries might be disregarded. This is in contradiction
not only tu the practice of States but also to the wording of the Geneva
lReply, Submission 1.482 NORTH SEA CONTINENTAL SHELF
guidance in the matter to States whose coasdswere opposite to each other,
but gave none to adjacent States, because fhe Cominissioti had nu1 yel
reached any decisionon the dcllttiitationthe ferriforiaseu ofsuch Sfafes.
In the absence of any rules of law, the Commission had decided that
disputes on the delimitationof the continental sheIf should be submitted
to strbitratiex aequo etboizo.In viewofthe objections raised bynumerous
governrnents ta that proposal, however, he had suggested inhis fourth
report that disputes should be submitted to conciliation procedurc. But
since the completion of the fourth report, the conclusions of the Com-
mittee of Experthsad becorneavailable and had prompted hirn ta prepare
a new text for articl7." (Italicsadded.)
I
These observations of the SpecialRapporteur makeit plain that the Çomniis-
sion had corne to separate cases of "adjacent" States from cases of "opposite"
States largely because in rheformer cases ihe bouridarymmus ie Iinked to the
lalerai boundary dividiiithe ierritoriol seaO/ adjacent Siafes and it had not
yet reached any conclusion in regard to the territorial sea boundary. This
purely technical factor made it perfectly naturai that the Special Rapporteur
also should frame his draft in two paragraphs stating the rule separately for
"opposite" and "adjacent" States. There is no trace whaiever either in the
Special Rapporteur's draft article or in his explanatianto the Commission of
any inherent differencebetween the cases of "opposite" and "adjacent" States
which mightrender the equidistanceprincipleeither lesssuitableor lessgenerally
applicable for ihe delimitation of boundaries between "adjacent" States than
ktween "opposite" States.
In the Commission itselfthe main focus of the discussion was the question
whether the equidistance principle should be qualified by making provision
for "special circumstances" which might justify anothcr boundary line. This
question was discussed by the Commission ind~ferentlywiih reference to boih
"oppusite" and "adjacerit"Siafes; and the outcorne of the discussion was that
the Commission did add this qualifying provision in fIisaine terms to Borh
cases. SimiIarly, theGeneva Conference itself adopted the two paragraphs of
Article 6 of the Convention providirigiaCmost identicaltermsjor theapplicafion
of rhe eqriidisiairpririciplein boih iypeof cases1
In short-the iravarcrpdparatoires of Article 6 aiîord nowarrant whatever
for the fundamental differencesof substanoe and principle which the Federal
Republic seeh to establish between "median", equidistance Iines between
"opposite" States and "lateral" equidistance lines between "adjacent" States.
On the contrary, both the Commission and States at the Conference treated
the quidistance principle as equally suitable Forboth cases and applicable
to both cases under precisely the sawe conditions!
46. This being so, the Federal Republic, before trying to drive a wedge
between "median" and "lateral" equidistance lines for the purposes of irs
arguments should have asked itself the far more pertinent question: why did
the Commission and the Conference treat "opposite" and "adjacent" cases on
grecisely the same bais? This question, it is obvious, has the rnost serious
implications for the whoIeof the Federal Republic'scase.The Federal Republiç
has maintaincd in its pleadings that the only generally recognized principle
which is binding upon al1 States, including itself, is the principle that cach
coastal State is entjtled ta "just and equitable share". The Federal Republic
has Iikewise rnaintained in its Reply that "there can be no doubt that the
function of maritime boundaries is not a mere 'ddlirnitationof the maritime
area each State controls, but also, if not primarîly, an equitable partition of COMMON REJOINDER OF DENMARK AND D HE NETHERLANDS 483
the maritime area between the States concernedl". It has further conceded
expressly in its pleadings that, in nearly al1cases, at least, a "median" equi-
distance line constitutes a just and equitable delimitation between "opposite"
States. What then is the Court to think in regard to the action of the Com-
mission and of the Conferencc in prescribing the equidistance-special circum-
stances rule for both "opposite" and "adjacent" States? Did these two res-
ponsible bodies have in mind what is "just and equitable" and what would
constitute "an equitablepartition" when they were endorsing the equidistance-
special circumstances rule as the rule of delimitation for "opposite" States?
Presumably, the Federal Republic must think so; for the whole of its argument
favours that view. But if that be the case, is it really conceivable that those
responsible bodies were irresponsibly obliviousof what in law would be "just
and equitable" and constitute "an equitable partition" when they turned their
attention to the case of "adjacent" States?Or is the Court asked to think that
those two responsible bodies wereirresponsibly oblivious of these considera-
tions in both cases and onlyby good luckfailed to lay do~vnan inequitablerule
for "opposite" States in thefirst paragraph of Article 6?
However the matter is put, it is obvious that the position of thc Federal
Republic is highly delicate even on the basis of its own thesis of the "just and
equitable share". The concept of the codifying organ of the United Nations
and the concept of the international community of States at the Geneva
Conferenceas to the Iawto be applied in order to achieve a "just and equitable
share" and "equitable partition" is the equidistance-special circumstances
rule which is found in Article 6 of the Convention. The Federal Republic's
position under its own view of the law becomes al1the more delicate if it is
asked what was in the mind of the Federal Republic's owndelegation at the
Conference when it voted in favour of the whole of Article 6 without any
semblance of a differentiation between paragraph 1 and paragraph 2. 1s the
Court to understand that the Federal Republic's delegation voted for the
article despite a belief that the application of paragraph 2 would not achieve
a "just and equitable share" or an "equitable partition"? If so, there is no
indication of any such belief in the records of the Conference.
And if the truth bas it obviously is-that the International Law Com-
mission and the community of States at the Conference endorsed the equi-
distance-special circumstances rule because they conceived that in the cases
both of "opposite" and "adjacent" States this rule would achieve what in law
wouId be a "just and equitable share" and "an equitable partition", then the
two Governments arc, indeed, entitled to pose another question to the Federal
Republic: why should Denmark and why should the Netherlands not be
entitled to delimit their continental shelf boundaries on the basis of the
principles which the International Law Comn~ission and the delegates
at the Geneva Conference, including those of the Federal Republic, appear
to have accepted as the embodiment of what is "just and equitable" in this
regard?
47. Whatever may be the Federal Republic's answer to that pertinent
question, it is clear that the legislativehistory of Article 6 of the Convention,
in the Commission and in the Geneva Conference,is wholly incompatible with
the sharp cleavage which the Federal Republic seeks to establish between
"median" equidistance lines and "lateral" equidistance lines.
lReply,para. 36. COMMONREJOINDER OF DENMARK AND TWENETHERLANDS 485
the continental shelf boundaries.When,however, the draft for the territorial
seawas eventually taken up by tlie First Cornmittee, Nonvay pointed out that
the Commission's draft did not take account of the complication that the
States concemed in a delimitation might beclairningdifferentbreadihs for their
territorialseas.Norway further pointed out, as ind~ed did also the Federal
Republic, that some coastal Stateshad "'historic"claimsto aparticular breadth
of the territoriasea which might in certain cases entirle them to extend their
boundary beyond the equidistance Iine (OBcial Rccords, Vol. 111,pp. 187-188).
At the sametime,sayingthat the problemsregarding "opposite" and "adjacent"
States were "so closcly interrelatedasin some cases to be indistinguishable",
Norway proposed that the provisions dealing with these two types of cases
shauld be combined (ibid. Th. Norwegian proposais found favour with the
First Cornmittee and led toa recasting of the Commission'sdraft in anegative
form and asa single provisioncoverjng both types of cases;and thcy also lcd to
the inclusion ofan explicit referençe in Article 12 of the Territorial Con-
vention io a "histocic titleas a form of "specinl circumstance'hhich might
"necessitate" a departure from the equidistance rule.
50. The Federal Republic has not attempted in the Reply to challenge the
staiements of the two Governments in the Counter-Mernorials that-
"There isno indication in the records of the Conference that the dif-
ference in the formulation of the territorial sea and continentai shelf
provisions was due to anything else than the difficulty brought up by
Norway and the vjcissitudesof drafting in different Cornmittees l."
Tthas rnerelyreasserted jts contentionthatthe different formulations of the
relevant provisions in the two Conventions shows that the "impact of special
circumstances" is treated differentlyinthe two Conventions and has attributes
this to "special factors" found "in eachof those distinct situations".
Undoubtedly, as has just been explained, the Conference did have some
special factors in mind when it formulated Article 12 of thc Territorial Sea
Convention in differentIanguagcfrom that in which ithad forrnulated Article 6
of the Continental Shelf Convention. They were the possihility of territorial
seas'having dimerentbxeadth and the possibility of a State's having a historic
title ta particular breadth,But, apartfrom thesepoints, there is nQindication
in the records thatthe Conferericeconsidered that there would be any essential
difïcrcnccs in the impact of "special circumstances" in the delimitation of
territorial sea boundaries from their impact on the delimitation of continental
shelf boundaries. Indeed, the Conference seems, if anything, to have envisaged
that "special cisçumstances" might have a larger impact in the case of the
territorialseathan in that of the continental shtlf.Nor is it in the least sur-
ptising that the Conference should have vitwed the matter in that light, The
Federal Republic's statement in the Memorial (para. 64) that "the equidistance
line has a far usiderscopeof application in the delimitation of territorial waters
than in thc deliniitation of continental shelf areas"aipure ass~imptionwhich
lacks any ioundation not only in the records of the Conference but also in
Staie practice. Specialfactors are jusas likelytocorne into play in areas near
the shore than in more distant areas. mis can be seen,e-g.,in the U.S.S.R.-
Finland Treaty of 1965where the near-shore boundary reflects provisions of
earlier peace treaties between the two countrics (Danish Counter-Mernorial,
para. 102; Netherlands Counter-Mernorial, para. 96) and also in the recently
' Danish Counter-Mernorial, para. 123; Netherlands Counter-Mernorial,
para. 117.488 NDR~ SEA CONTINENTAL SHFLF
54. Thc Danish and Netherlands Governments set out certain State practice
in their Counter-Memorials, invoking this practice from Iwo points of view
(Danish Counter-Mernorial, paras. 84-112 and Annexes 13, 14 and 14 A;
Netherlands Counter-Mernorial, paras. 78-106and Annexes 13 A, 14, 14A and
15). First, they referred ta considerable number of precedents as showing
that the provisions of Article 6 of the Continental Shelf Convention adopted
aE Geneva in 1958were in harmony with the psinciplcs underlying the delimi-
tation of other types of maritime and fresh-water boundaries. From this
Statc practice they drew the conclusion that the equidisiance-special circum-
stanccsrule found in Article was nota new conceptand that, on the contrary,
it was an expression oa principle already known and accepted inState practice
in relation to maritime boundaries. Secondly, the two Governments invoked
a substantial body of prccedents in the period after the Geneva Conference
which relate specificallyto the delimitation of continental shelf boundaries and
which confirm the general acceptance today of the rules set out in Article 6 as
represcnting the modern law governing continental shelf boundaries. In
regard to these precedents thetwo Governments pointed out that al1the con-
tinental shelf boundaries, including those of the Federal Republic, so far
established in the North Sea as well as in the Balti-the two seas which
concern thc Federal Republiç-reflect the principle of Article 6 of the Geneva
Convention.
1. State Fractice inregard tu the DelimitarionofFreslt-Waier Boundariesand
Mariiime Bounduriesopartfrom Boundariesofthe CoririnentalShew
55. The Federal Republic, in seeking in the Reply to dispose of the SiaPe
practicerelating to boundaries other than continental shelfboundaries, advances
certain arguments of a general chasacter (paras. 34-39)and alsornakes certain
specificcriticisms of some of the individual precedents (Annex, Section B).
These speci6c criticisms are confincd to practicc concerning territorial sea
boundaries and it will be convenient to consider them first.
It was pointed out in the Counter-Mernorials that in 1947, when it was
necessaryto definethe territorial sea boundaries of the Free Territoryof Trieste
in Articles 4 and 22 oa major collective treaty, the ltalian Peace Treaty, the
States concerned significantlyfixed the boundaries of the Frae Temitory both
with Ttaly and with YugosIavia by application of the equidistance ptinciple.
The Federal Republic seeks to dispose of these precedents merely by saying
that, the Free Territory having ceased to exist, the provisions in question
are no longer in force. But the relevant pointisnot whether these provisions
are still in force; it is the evidence which thcy furnish of the understanding of
States concerning the principles to be applied under the international law
of today for delimiting territorial sea boundaries between adjacent States.
The fact that, owing to the disappearance of the Free Lcrritory, the provisions
are no longer in force in no way diminishes their value as evidence of the con-
victions of States onthis matter.Moreover, it seems clear, from the informa-
tion available, that the existing territorial sea-boundary between Italy and
Yugoslavia, which replaces the Peace Treaty boundaries, is also basedon the
equidistance principle.
The same observation applies to the Treaty between Norway and Finland
,of28April 1924defining the boundary betweentheir two States inthe Varanger-
flord. The fact that it isna Ionger in fordoes not alter its character as evi- COMMONRWOINDER OF DENMAKKAND THE NEWERLANDS 489
dence. The new boundary between Norway and the Soviet Union may not
followthe equidistance line in the samcway;but italso reflectsthe equidistance
principle.
Threc examples of reliance on the equidistance principlc the Federal Republic
seeks to dispose ofby the observation that thcy are unilaferaand caitnor can-
stitutea precedenrfor inter-State pracfice: the Mexico-Belice, Mexico-United
States and Tanzania-Kenya territorial sea boundaries. This observation seems
quite out of place sincethere is not the slightesr suggestion that the applica-
bilityof theequidistance principle was in any wayin disputeinany of the ihree
cases. Indeed, in the two first-named examples al1 the States concerned-
Mexico, the United Kingdom and the United States-were parties to the
TerritorialSea and Contiguous Zone Convention, Article 12of which provides
for the application of the equidistance-special circumstances rule. The thiré
cxamplea Proclamation of the Prcsident of Tanzania-is significantfor
Tanzania is not a party to the Convention and yet appears to haveconsidered
itnatural to applythe principlesof delimitationwhi~htheconvention prescribes.
As to another precedent, the Italo-Turkish Treaty of 1932 delimiting the
territoriasea boundary between Anatolia and the Esland of Castellorizo, the
Federal Republic comments that "this line contains only a few points of
equidistance connected by straight lines'". But it isnot uncornmon for two
States, in applying the equidistance principlto #grecfor mutual convenicnce
to sitripl~vthe line by joining straight tines between. The resulting boundary
neverthelessremains one based essentiallyon the application of the eqiiidistance
principle.
Two other precedents cited in the Counter-Mernorials as examples of the
equidistance principle, Treatiesof 1908 and 1925 delimiting United States-
Çanadian boundaries, are contested in the Reply on the basisof a "suggestion"
thai boundarics "running along the rniddle of two channels" are rather ex-
amples of a thalweg boundary. In facr,the term "channel" in these casesseerns
to refernot to the navigational channel but simply to tlie waters intervening
between the two shores, as in the expression "English Channel"; and the
principle of delimitationthus would appear to be essentially that of equidis-
tance.
56. The two Governments, inthe above-mentianed Annexesof their Counter-
Memorials, noted four precedcnfs in which methods othcr than the equidis-
tance line had been uscd for dctermining the territorial sea boundary. The
Federal Republic observes in this connection that "many others could bc
added". Certainly, some furtber prccedents of the same kind could beadduced,
more particularly from somewhat earlier tirnes, such as the Norwegian-
Swedish boundary which was the subject of the well-known Grisbadarna
arbitratioil.But it remairis true that the cquidistance-spccial circurnstances
rule, adopted by the lntcrnational Law Commission and by the Geneva Con-
ference for the delimitation both of the territorial sea and the continental shelf,
was by no means a new concept thouglit up by the Committce of Experts in
1953. On the contrary, it was a naturai evolution from an existing principle
of boundary dclimitation which had manifesteclitself often enough in the prac-
tice of States in the delimitation of various forof maritime and fresh-watcr
boundaries. Indeed, in paragraph 35 of the Reply the Federal Republic itself
concedes that "Obviozrslytheauahors of theCoir~DfentaSl Pie(fÇonve~itioii would
not have framed the rules on the delirnftotionof continnital sheIf boundaries
wifhoutrefaud to rhe experience made wfrIisuch rnethods in Store practiceand
Reply,Annex,Sec. B, 3. COMMON REJOINDER OF DENMARK AND THE NETHERLANDS 491
continental shelf boundary Treaty of 9 July 1965, pending its final determina-
tion later through an agreement between the two Governments. Furthemore,
in connection with these negotiations the Federal Republic expressly stated in
an Aide-Mémoireof 16 March 1967:
"Although the Convention is not, as yet, in force for the Federal
Republic of Germany, it is expected that the Federal Republic's instru-
ment of ratification will be deposited during this summer, possibly before
1 July 1967. The delay in the ratification procedure is due to purely
technical reasons.
Already today, the Federal Republic of Germany considers herself
bound by the provisions of the European Fisheries Convention of9 March
1964 '."
Accordingly,the two Governments cannot regard the comment of the Federal
Republic in its Reply as in any way affectingthe significance of the European
Fisheries Convention as an example of the application of the equidistance
principle in the delimitation of maritime boundaries. Indeed, it remains as yet
another instance of the recognition of the equidistance principle by the Federal
Republic in the North Sea.
2. State Practice irrRegard to the Delimitation
of the ContineritalShelf
58. In Annexes to their Counter-Memorials the two Governments set out
12precedents of delimitations of continental shelf boundaries al1of which have
occurred since the Geneva Conference of 1958 (Danish Counter-Memorial,
Annex 13; Netherlands Counter-Mernorial, Annex 15); and, analysing this
practice in Chapter 3,Part II of the Counter-Memorials, they showed that in
al1the precedents, includingthree in whichthe Federal Republic was concerned,
there was an application of the equidistance principle (Danish Counter-
Memorial, paras. 100-110; Netherlands Counter-Memorial, paras. 94-104).
The sole exception, they further pointed out, was the Federal Republic's
claims in the present case.
The Federal Republic has made certain comments on this practice in para-
graphs 37 and 47-55 of the Reply and in Section A of the Annex thereto; in
addition, it has drawn attention to certain further precedents which it puts
forward as incompatible with the recognition of the equidistance principle.
59.In regard to the North Sea, the Federal Republic questions the reference
in the Counter-Memorials to the Denmark-Netherlands Treaty of 31 March
1966 on the ground that its validity will entirely depend on the ruling of the
Court in the present case. But this Treaty is not cited as a precedent bindingas
slrchirponthe Federal Republic.It iscited merelyas part of the general evidence
of the conviction of States that the applicable principles and rules of inter-
national law in force today for the delimitation of the continental shelf are
those expressed in Article 6 of the Continental Shelf Convention; and it is
similarly cited as part of the evidence that al1the North Sea States, with the
singleexception of the FederalRepublic, havesought to delimittheir continental
shelfboundaries in accordance with those principlesand rules.In those contexts,
the Treaty is fullyrelevant, even if it may do little more than confirm an opir~io
juris on the part of Denmark and the Netherlands whichwas already ir?iplicit
in tlreirpreviorrsratificationsof the CorrtinentalShelf Convention.
' Annex 3 to thisRejoinder.492 NORTH SEA CONTINENTAL SHELF
The Federal Republic also questions the reference to the "partial boundary"
treaties of 1December 1964betweenthe Federal Republic and the Netherlands
and of 9 June 1965 betweenthe Federal Republic and Denmark, because "the
Federal Republic of Germany upon signing these treaties, made it clear that
it did not recognizethe equidistance rnethodas determining the further seaward
course of the boundary line l". Here again it is not a question of a precedent
binding as such upon the Federal Republic but of evidence of recourse to the
principles of delimitation whichare found in Article 6 of the Continental Shelf
Convention. This aspect of the Treaties was gone into by the two Governments
with somethoroughness in the Counter-Mernorials(Danish Counter-Memorial,
paras. 105-109; Netherlands Counter-Mernorial, paras. 99-103), and the
Federal Republic does not really seem to make any new point in paragraphs 29
and 30 of the Reply. Al1it seems todo is to clarify a little in paragraph 30 its
explanation of its acceptance of the "partial" equidistance boundaries. It
there says that the treaties "prove nothing more than the fact that the equi-
distance line may bc employed for the delimitation of the continental shelves
between adjacent States in the vicinity of the Coast where the direction of a
boundary line based on the equidistance method is not yet it~jlitencedby the
special configurationof the Coast so rnuclias to cause atl inequitable result"
(italics added). The interesting thing about this explanation is that it really
seems to be indistinguisliablefroni an invocation-liowever tttglrstified-of the
"special circtrmstances"clausewhichfortns an integralpart of the rulecontained
in Article 6 of the Convention.That it is completely unjustified will be shown
later in Chapter 3. Lnthe present connection it sufficesto point out that the
Federal Republic isableto rationalize itsacceptanceof the "partial" boundaries
only by recourse to a thinly disguised version of the equidistance-special
circumstances rule.
60. On four other North Sea delimitations-the treaty between Denmark
and Norway of 8 December 1965and the treaties betweenthe United Kingdom
and respectivelyDenmark, the Netherlands and Nonvay-the Federal Republic
rnakes the comment that they "contain one or several points of equidistance
which are connected by straight lines 2".This comment, if it is intended to
suggcstthat thefour treaties in question do not establish boundaries determined
by application of the principle of equidistance, merely serves to underline the
decidedly forced character of the Fedcral Republic's arguments on this aspect
of the case. All four Treaties expressly proclaim themselvesas based on the
application of the equidistance principle; and al1four go as close to establishing
an actual equidistance line al1along the boundary as is consistent with the
practical requirements of a definition of the line by referencc to geographical
CO-ordinates.
61. As to the last of the North Sea precedents, the Belgian Bill introduced
into the House of Representatives on 23 October 1967,the Federal Republic
observes in paragraph 37 of the Reply that "it is not a treaty at all". This is,
of course, tme. But laws, decrees, proclamations, etc., promulgated uni-
laterally are unquestionably relevant forms of State practice in determining
what are the generally recognized principles and rules of international law.
The Federal Republic clearly recognizesthat this isso, becauseit revertsto the
Belgian Bill inparagraph 55 of the Reply where it criticizesthe Bill as "a very
weak precedent". In support of this criticism it further observes:
-- --
l Reply, para.29.
Reply, para. 37 (d). CDMMONREJOINDER OF DENMARK AND THENETHERLANDS 493
"Apart from the facs that it iat present only a proposa1 without the
force of lawitis certainly withîn the discretion of anyState to adopt the
principle of equidistance for the delimitati~n of its continental shelf
vis-à-vists neighbours if it considers such delimitation equitab11does
not follow £rom the Exposedes Motifs of the Belgian Government which
accompanies the proposal, that the Belgian Government had chosen
delimitation by the principle of equidistance because &lgiuisobIigedto
acceptthiç mode of delimitation."
The Belgian Bill is, in fact, far from bean"very weak precedent"; on the
contrary, it is of particular interest, seeing that Belgiumnotsyetbecorne a
party to the Continental Shelf Comrention.
In the 6rst place, the BelgianBill docs not stand alone aspurely unilateral
act.In Annex 13 A to the NetherIands Counter-Mernorial there isprinted the
text of a Note frorn the Belgian Ernbassy ar The Hague to the Netherlands
Government datcd 15 September 1965, Le., some two years before the sub-
mission of the Billto the BelgianParliameni. In this Note the Belgian Govern-
ment refwred io projected consultations betweeri the two Governments con-
cerning the delimitation of their continental shelf boundary andthen replied
to the request of the Netherlands Government for BeIgium's agreement to
the CO-ordinates51' 48' 18"North and 2" 28' 54" East as thecommon point of
delimitation between Great Britain, BeIgium and the Netherlands. In this
regard the Bclgian Government expressed itself as follows:
"The Minisiry of Foreign AITairswill certainly be aware of the fact
that therc ias yet no Belgian Act of Parliament in respect of the Conti-
nental Shelf; the Bclgian Government is therefore unable to see in what
way it could oficialiy express its approval of the said co-ordinaselong
as the Bill that was elaboratedunder the former Government and was
heldup on accciunt of the dissoiution of Parliamenhasnot passed into
Iaw; inthe opinion of the Eklgian Governmcnt, such approvaf would be
without foundation in domestic legislation.
The Belgian Government does not klieve, however, that this point is
suchthat it couId create any dificulties, seeing fhainofmore isinvolïed
herethan a qrrestioof tirne.
The BeIgiari Govcrnment has therefore instructed its Embassy in The
Hague to state that the former will mcanwhilc raise no objection
to the CO-ordinates51"48' 18"N and 2"28' 54" E which have been agreed
upon by the Governments of the Netherlands and Great Britain as deter-
mining the comrnon point of delimitation and wkicli have been deerned
acceptahb by the Belgian experts." (Italics added.)
The co-ordinates in question, it hardly needs to be said, are those which
had been accepted by the Belgian expertsas atonce the southern terminal of
the Netherlands-United Kingdom medianline and thenorthern terminal of the
Netherlands-Bdgian lateral equidistance boundary.
62. It ishardly conceivable that, before the matterhadeven been submitted
to the Belgian Parliament, the Belgian experts and the Belgian Government
would have gone so far in expressing their acceptance of the trilateral Nether-
lands-Belgian-United Kingdom equidistance point, if theyhadnoc ken under
the firm conviction that thiwas the terminal point ofthe Bclgian-Netherlands
boundary indicated by the generalIy recognized rules of international law; or
chat tlie Belgian Government would have gone so far as to say that "nothing
more isinvolved here than a question of tirne", they had not been çonvinced' 494 NORTH SEA CONTINENTAL SHELF
that the generally recognized rules of international law governing the matter
would inany cvent require the Belgian Parliament to cndorse the triIateral
equidistance point as the terminal of the Belgian-Netherlands boundary. This
is al1the more inconcefvablein that Belgiurn is not a party to the Continental
Shelf Convention and the area of the continental shelf which accrues to Bel-
giurn under boundaries determined by application of the principle of equidis-
tance, though reflecting what naturally appertains to her çaast, is not con-
siderabIe. Belgium, like the Fedcral Republic, finds that the proxirnity of
coasrs of orher neighbouring Statcs lirnits the area of continental shelf which
appertains to her awn toasts, Unlike the Federal Government, howcver, the
Belgian Government did not beljeve this to be any reason for displacing thc
equidisfnnce prinçiple as the applicable criterion of delimitation.
Nor does the rnatter rest there. Owing to delays irnposed by the course of
politics in Belglum, thc Bill has not yet been vated upon by the Belgian Par-
liament. Huwever, the projected consultations between the two Govcrnments
and their expertsduly took place and full agreement was reached between them
regarding the course of the Netherlands-Belgium cantiriental shelf boundary
on the basisof the principle of equidistance. Inresponse to a request from the
Netherlands Government, the Belgian Government has stated in a Note of
8 Decernber 1967that it has no objection to this agreement's king brought to
the attention af the Court, providcd that it ismentioned thar the position taken
bythe BelgianGovernrnent issubject to the approvai of the BelgianParliament.
The text and translation of this Note arc reproduced in Annexes4 and 4 A to
this Rejoinder,and itwillbeseen that theBeIgian Governrnent there describesthe
agreement as followç:
"Cet accord, non encore signC,porte sur la délimitation concrete du
plateau continental. Conformtment aux dispositions contenues dans le
projet de loi belge, il affirme le principe de la ligne médianedont tous les
points sont &quidistantsdes points les plus proches des lignes de base à
partir desquelles est mesur& la largeur de la mer territoriale des deux
Pays.
Sur cette base, l'accord consacrera que la délimitation sera tracke par
les arcs de grandcercle entre les points suivants:
(ij51" 48' 18"N; 2"28' 54" 0."
And there follow the CO-ordinatesof seven further equidistant points" In
other words, the course of the boundary is expressed in a manner very similar
to that in which the five equidistance boundaries already agreed upon by
other North Sea States areexpressed.
As to the Exposédes Motifs of the Beigian Bill,this certainly seems to can-
firmthat the.BelgianGovernment considered the delimitation of its continental
shelf boundaries to be governed by the principles set out in Article 6 of the.
Convention. Having explained that Belgium would abstain from ratifying the
Convention because of her dissatisfaction with the definition of the continental
shelf and with the omission of any provision for compulsory arbitration, the
Exposédes Motifs proceeds:
"Cette abstention ne signifie pas que le Gouvernement belgen'accepte
pas le principe m&medes droits de 1'Etatriverain. Comme la mer du Nord
ne constitue en réalité qu'un seup llateau continental physique, que Ses
droits qideI~OLIpourrions y &tenir se trotiventn8cessairertzentlimitPs d'une
l IIlustratedin Appendix1 to Annex 4.498 NORTH SEA CO~TINENTAL SHELF
Figure B. GuN of Pari- Treaty Boundary
and Equidistance Line PETROLEUM {SIJBMEKCED LANDS) BILL 1967
ADJACLN'T jiRE.45
NOTE
TheBr11aupllm onl~ in rclalion la ex~loration Tor. and mpd.rhn wimlslim
l resmurtesot such wbrnergelands included in the ad~sccntareawe ihe chaiictceirhw-
(a) ot saabd and subseil heneath territorial waten, or
{b] 01 continental shelf wiihin the rneaiheeConveniion on ihe Coniinenial Shall signed
ai Ganwa on 29 Aptil 7958.
Figure C 500 NORTH SEA ÇONTINENTAL SHELF
"The Government considered that any transfer of part of these titles
back to Australia-no matter how justifiable in terms of logic-might be
misunderstoodin Papua and New Guinea, and in any case that such action
wtluld be inconsistent with the high senseof responsibility ivhich Australia
displays in working to bring this Territory towards self-governmeiit."
In other words, the Minister explained that for those very special political
reasons Australia wtiuld concede sa the Territory a small part of continental
shelf to whichshe would have been entitled under a normal application of the
relevant principle-the rnedian line.
70. Turning to the Persian Gulf, the Federal Repuhlic queries the title of
the Bahrain-Saudi Arabia Agreerncnt to be considered an application of the
equidistance principle. In the Annex to the Reply it comments: "although
'middle lines' and 'mid points' are mentioned in this treaty the boundary
does not follow aline of equidistance'" and discites Pudwaas stating that the
treaty does not "utilise the principle of equidistance" (Inrernaticinal and
ConigarativeLaw Quarierly, Vol. 9, 1960,p. 630). The view of Mr. E. Cauter-
pacht, however, that "the wording of the FirstClause (of the Treaty) suggcsts
thatan effort was made to establish a boundary line which appcoximates to
a rnedian line drawn in accordance with the principlc of equidistance1smore
correct (ibid., Vol.7, 1958, p. 518 ff.). The delimitation of this bowndary
invalved consideration of disputed islets, coral shoals and pearling beds; and
it seflecsome of these factors. But, as the languagof the Treaty shows, the
delimitation was based upon the application of the equidistance principle in
its median lincform.
71. The Federal RepubIic, however, has adduced as a further prewdent
fforn the Persian Gulf the Kuwait-Kuwaft Shell Concession Agreementof 1961
which it interpretsas an examplc of a "dividing Une" which "follows the
generaI direction of the land froriticr and docs not reffecithe principle of equi-
distance" (Reply,Annex,pp. 438-43 4~ipra)Thisinterpretation isnot justified.
Tndaed,the very fitcthat theconcession agreement speltksof the "approxiinale
boundarics of theseabed to which Kuwait is entitled" and makes no reference
tothe geographical position of her land frontier isa strong warning against
. siican interpretation, If Kuwait had conccivedher continental shelf boundary
to be a Iinc following the gcneral directioof her land frontierit would have
been naturalto say so in defining the boundary and to Formulatethe definition
by reference to the position of the land frontier. In fact,as will be shown,
there can bc no doubt that the boundary in the concession isinspircdby tl-ic
concept of a delimitation based upon an appEicationof the equidistance prin-
ciple. Having regard to the complexity of the geogapliical factors at the
northern end of the Persian Gulf and to the absence of specifrc agreements
between Kuwait and lier neighbours, it was also natural for the concession to
speak only of "approxirnate boundaries".
The "dividing line" in question,as shown in Annex 9 B, is a delimitation
which concerns nat only the adj~cent State Iraq, but also the opposite State
Iran, and theadjacent territory of the Neutra1 Zone. The Federal Republic's
"Note" in its Annex mentions only the gencral direction of thcland fronticr
without specifying wfiich. Eut the Danish and NetherIands Govcrnments
assume that the Eederal Republic means to refer to a continuation of the
gencral directionof the land Frontierbetween Kuwait and Iraq.
One thing is vcry clear: Iraq, Kuwait's adjacent neighbour, does not
consider their continental shelf boundary to be a continuation OFthe general
direction OFtheir land frontier.Tt appcarsfrom Annex 9 A that in 1958, in COMMON REJOINDER OFDENMARK AND THE NETI-IERLANDS 501
connectiori with the extension of Iraq's territorial sea to 12 milm, the Iraqi
Government asked a Norwegian expert, Commander Coucheron-Aamot, to
measure on a chart the territorial sea and continental shelf areas which it
considcred to apperrain to Iraq. At any rate, by a Note of 22 August 1960
the lraqi Forcign Ministry transmitted to the Danish Embassy in Baghdad a
copy of an officia1chart showing thc areas of territorial sea and continental
shelfof Iraq as delirnitedin accordancc iviihthe measurements ofthe Norwegian
expert. This chart, on which the northern boundary of the Kuwait-Kuwait
Shdl wnccssion has also been addcd for ease of cornparison, is reproduced in
figureD (see p. 502,infra)This chart demanstrates:
(1) Iraq has based the dclirnitation of her territorial sea and continental
shelf in the Persian Gulf, vis-cà-vboth Siales udjacerit rIier, on the strict
application of the equidistance principle.
(2) The northern boundary or the Kuwait-Kuwait SheElconcession does not
follow the general direction of the land frontier but ispractically identical
with the equidistancc line claiined byIraq as her territorsea and continental
shelf boundaries.
It is equally clear that the other boundaries of the Kuwait-Kuwait Shell
concession are not continuations of the gencral direction of the land frontier.
Study ofdetailed charts of this part of the Pcrsian Gulf shows that the delirni-
tation of the actual international boundaries between Kuwait and rcspectively
Iran and the Neutra1Zone involvesconsideration of the usc of various islands
and low-tide elevations as base-points for the application of theequidistance
principle; and it may besurmised that the other concession lines arc "working"
boundaries pending the completion of negotiations between the States con-
cerned.
72. The Traqi prccedent, as already indicated in patagraph 63 above, is of
partiçular interest. Iraq, likc Belgium and the Federal Republic, is not a party
to the Continental ShelEConvention; indeed, like Belgium, she is not even a
signatory to either the Territorial Seor Continental Shelf Conventions. Like
Belgiurnand the Federal Republic, Iraq is a country whosc coast abuis upon
a "single natural continental sbelf" and whose rights thereover, in the words
of the Belgian Exposédes Motifs, "are necessarilylimited ina concrete manlier
by the rights of other coastal States". Again, lika Belgium and the Federal
Republic, lraq finds that the area of continental shelf appertaining to hcr
undcr the equidistance principle is iiot considerable. In other words, Iraq's
situation has obvious parallels with that of Belgiumand the Federal Republic,
and more especially that of the Federal Republic. Like Belgium, but ciillike
the Fedëra lepublic, Iraq has automatically considered that the equidistance:
principle expressed in Article 6 of the Continental Shelf Convention would
govcrn the dclirnitation of her continental shelf in the absence of an agreement
or of special circurnstancesjustifying another boundary Iine.
73. The Danish and Netherlands Governments accordingly persist in
thinking that the State practiçe sincc the Geneva Çonference of1958 points In
thc strongest and most unequivocal manner to the acceptane by States of the
principles and rules expressed in Articl6 of the Convention as the generally
recognized rules of international law applicable to the delimitation of
continental shelf boundaries today.
74. The two Governments further consider that there is no substance what-
ever in the argument, often repcated and invoked again in regard to this State
practice in paragraphs 44, 51 and 53 of the Reply, that for the most part it
relates to boundaries between "opposite" States. They have already underlined w U!u-P'l%l io
J- --3 10
IWS iw~m-l!e*em UI
* 0"lQmii I,cS+plnw
mY4 )O luidUUUlmN aF1:
uni. Ioluiuiwl : ('1ljl
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SPWfi 10 UotrwDw irwr O ~UIOIW
Pua ID"'~!JQeq~ oqd ~JWI UI:qq COMMON RWOINDER OF DENMARK AND THE NETHERLANDS 503
that the internationalLaw Commission and the Geneva Conference made not
the slightest difference between the casesof "opposite" and adjacent States
either in regard to the territorisea orthe continental shelf (see paras. 45-47
above). As to the State practice itself, Belgium, Iraq and the U.S.S.R. provide
clear cases of the recognition of the equidistance principle as the general rule
applicable between "adjacent" States, quite apast from the position taken,
from the first and independentfy, by both Denmark and the Nerherlands in
regard to the boundaries now More the Court and the positioii taken by the
Netherlands in regard to the Netherlands-Belgium boundary. The Federal
Repubric, in fact, stands alone in the sharp distinction which it seeks to make
between "opposite" and "adjacent" States. Furthcrmore, the reasons for not
making any such distinction are compelling. In both cases the equidistance
principleestablishesan objectivecriterion for determining what in the generality
of cases is to be cansidered an equitable delirnitation. In both cases also,
notw~thstandingthe apparent opinion of the Federal Republic to the contrary,
certain types of geographical factors may amount to "special circumstances
justifying another boundary line". An insignificantoffshoreisland, for example,
may affcct a delimitation between "opposite" States just as much as one
between "adjacenty'States. There is, inshort, notashredof justification either
in law or in fact for the distinction on which the Federal Republic so heavily
reliesin trying to undermine the significanceof the State practice.
75. Tn concluding their examination of the State practice, rherefore, the
two Govemrnents reafhrm their conreniions that the principles and rules of
international law expressed in Article 6, paragraph 2, of the Continental Shelf
Convention are the generally recognizedprinc@lesand rules ofiister~uiional
law app!icab!e lu fhe deliniiratio,~ofthe conlinenralsh~ifberween "adjureilt"
Sraies.
SectionIII. ThePositionof theFedemiRepublicinRelation to the
QuidistanceSpacial Circumstances Rule
76.In Lhaprer IIofthe Reply (para. 19)the Federal Republic cornplains khat
the Coiinter-Mernorials"do nordistinguishclearlyenough betweenthe inlritisic
merirsof the equidistance method on the onehand and the solrrceoJobligarion
foi a Stateto settleits boundary vis-i-vis its neighbour States byapplication of
this method". Then, while conceding that in many cases the equidiçtance line
may be regarded as the most equitable boundary line, the Federal Republic
asserls:
"But there remains the question uiiderwhaflego1 fititehe egriidis~nnce
I~P~cEtibe itnposedniz thFedera Repuhk ofGermany ;here the Counier-
Mernorial fails to provc itç case." (Italics added.)
It goeson to recall the observations of the two Govemrnents in the Counter-
Mernorials that :
"Denmark and the Netherlands having delimited their continental shelf
boundaries specifiçallyon the basis of generally recognized principlesand
rules oflaw,these delimitations aprima fuci eot cantrary to international
law and are valid with regard to other States .. . ln the present case it is
not a question of Denmark and the Netherlands seeking to impose a
principleQI+rule upon the Federal Republic; it is rather a questiof the
Federal Republic's seeking to prevent Denmark and the Netherlands
from applying in the delimitation of their continental shelf boundaries the
principles and rules of international law generally recognized by States."504 NORTH SEA CONTINENTALSHELF
And again asserts:
"But al1thesecontentions beg the question, because they start from the
unproved assumption that Gerrnany is bound to regard the equidistance
line as an obIigatory rule of international law. The legul source of that
obl&~alionh,awever,remaiiisanopen qriestion".(Italics added.)
77. Continuing on the same liueof argument later in the Chapter @ara. 62)
the Federal Republic further cornplains that the Counter-Mernorials try to
shift the onus of prou€ with regard ta the existence of customary law. Chal-
lenging contentions in the Counter-Memririals that thc onus Is on the FederaI
Republic "to show why Benmark orthe Netherlands should natk entjtledta
appl y the generaly recognized principles and rulesof delimitation in delirniting
their respectivecontinental shelf boundaries", it argues that the onus of proof
of the existenceof any customary rule obliging the Federal Republic to accept
delimitations in accordance with those principles and rules is, on the contrary,
upon Denmark and the Netherlands. In thiscomection, itinvokes a well-known
dictum in theAsylum caserelating toa regional custom:
'"TheParty which relies on a custom of this kind must prove that this
custom is established in such arnanner that it has become binding on the
other Party ..."
This dictum, it says, "is in harmony with the general principle oIaw rccog-
nizedin aillaw systemsthat dieParty relying ona righfhasto proïe its exisfence"
(itaIjcsadded). On this basisit asks the Court to wnclude:
"If, therefore,the customaa law character of the rules contained in
Article 6of the Continental Shelf Convention cnnnarBe establishedbeyund
doubr,the Kingdorn oJ Denmark andthe KingdomofrheNetheslundrcannor
reIy on those rules against ihe FederaI Republic of Germany '." (Italics
added.)
78. The two Governments consider that this manncrof presenting the matter
to the Court misstatesfundamentally the position ofthe Parties inrelationtothe
applicable principles and rules of law.
79. As to thc question of proof of customary law, the dictum in the Asylum
case, lke the similar dictum in the Rl$krsof Nalionds ofrhe United States in
Morocço case (I.C.J. Reports 1952, p. 2W), relates to a regional, not gcneral,
custom. Whcn a party relies on a regionalcustom, jt is invoking a special right
which is either a derogation from or an addition to the general law; and in
consequene it is absolutely Iogical and inevitable that the onus of proof of the
custom rats upon the party invoking it. But it isnot a regional custom which is
in question in the present case; it Is the general principles and ruleof inter-
national law applicabletoday to the delimitation ofcontinental shelfboundaries.
There is not, and cannot be, any burden of proof in regard to a general
principle or rule of internationaIüw.Jura novit Curfu: Itis solelfor tliCourt
to appreciate the relevant indications of a general custoin and to determine
whether or not they show the hallmarks of general acceptance as law.
$0. But the Federal Republic misstates the Iegal position even more fun-
dameneally when it contends that Denmark and the Netherlands cannot
establish their title to the delimitation of their continental shelf boundarons
the basis of the equidistance principle without first establishing a specific
Reply, para. 62. 506 NORTH SER CONTINENTAL SWELF
or whether the çoastal State must assert suchrights by some forma1 and
unequivocal action. In any case,itisgenerally recognized that the rights of
the coastal State over the continental shelf adjacent to its coasare ex-
clusiveir ihesmse rliatatherStates am exclrded a litnitfrom clait~lingor
acquiring righismer rhat part ofthe con~ine/tf~lhew which'appertains'to
the coasralSiate." (Italics added.)
Frorn this undoubtedly correct staiement of the law as jtexists today the
Federd Republic jumped to a discussion of "distributive justice"and the
alleged principle of the "just and equitabIe share" of the continental shelf of
the North Sea as a whole wlckour considering either thelegai irnplicc~tionsaf
the exclusive rights the cuasfalStore as generally recognizedor the compati-
bility of itown- allegedprinciple with the exclusive rightsso recognized. But
when these two rnatters are examined, it becornes obvious that the Federal
Republic's insistenceon the need for Denmark and the Nctherlands to prove
acustomary rule conferring upon them aspecific"legal title" under which the
equidistance line can be imposed on the Federai Republic of Germany lacks
any real basis.
83. Since the applicable law accepted by the Federal Republic recognizes
the autoinatic extension of the exclusivesovereign rights afcoastal State over
the area of the continental shelf which is adjracentta thçoastof its territary,
the existence of these rights necessarlly entails a corresponding obligation
on the part of al/ other States to respect thoseexclusiverights. But logically
the rights precede the obligation and determine its naturand scope.In con-
sequence, the question is not whether the Federal Republic has undertaken, by
treaty or by custom, an obligation towards Denmark and the Netherlands to
respect the exclusive rights of these States, but whether the exclusive rights
in fact claimed and exercised by thern are indeed recognizedby the principles
and rules of international law.
Inherent in the recognition of the coastal State's exclusive rightover the
continental shelfadlacent to itscoast isthe conccpt that the continental shelf
adjacent to the coast oFa State is, in principle, to be considaseappertaining
to that State. Inherent in this concept is thcn the further concept that con-
tinental shelf whichis nearertoone çoast thaa to another is, in principle, ta be
considered as adjacent to the nearer coast. Otherwise, not only the term
"adjacent" but aiso the very principIe of recognizing the automatic extension
of the "exclusive" rights of the coastal State over the adjacent continental
shelf would begin tcilose their meaning.
This view of the matter is refnforced by the specificprovision in Artide 6
of the Convention that, inthe absence of agreement or of special cirurnstances
justifying another boundary line, the boundary is to be determined by reference
to thc principle of equidjstance borh as between "appositc" and as between
"adjacent" States. Whether or no2this provision isregarded astheexpression of
a distinct customary sule binding as such upon the Federal Republic, it is
certainlya reflection ofwhat the States at the Geneva Conferenceincluding
it would seem the Federal Republic-cançeived to be an expression of what
should be considered the area of continental shelf "adjacent" toa coast and
as prima facie appertajning to the coastal State. The principle of equidistance,
it hardly needs ro be said, comprises within itself the most obvious and the
most objective criterionof "adjacency ".
When Denmark and the Netherlands delimited their respective continental
shelves by application of the principle of equidistance, each State included
within the "adjacent" areas over which it has exclusiverights only those points COMMONREIDINDER OF DENMARK AND THE NETHERLANDS 507
of the continental shelfnearer to its coasts than to the Coastof any other State.
In doing so, each State has respected the grinciple of "adjaçency*',applied an
internationally accepted method of delimitation and acted in accordance with
principles generally recognized by States as applicablein the delimitation of
continental shelf houndaries. Tt necessarily follows, in the view of the Iwo
Governments, that these delimitations arepripnafacie valid on the international
plane.
84. It further follows, in the viewof the iwo Governments, that the Federal
Republic is prima Jacie under an obligation under international Iawto respect
those delimitations. Accordingly, it is for the Federal Republic to show a
better title, recognized by the applicable principles and rules of international
law,to specificareas ofthose partofthe continental shelvesclairnedrespedively
by Denmarkand the Netherlands as adjacent ta their coasts. The remarkable
feature of the presentcaseis that alrhough the generally recognized principles
and rules of international law admit, in the"specialcircumstances" clause, a
specificground on the basis of which, under certain conditions, a better title
rnaybemade out to areas prima fucie adjacent to another State, the Federal
Republic has shown a decided reluctance to try and establisa better title on
that ,gound.
85. The Federal Republic does not advance at al1its own clairn to a better
title by insisting that it noc ratified the Continental Shelf Convention or
by seeking,as it does in paragraphs 43 and 44 of the Reply, to rninimize the
significanceof the Convention and in particular of Article 6. In parasaph 43
its argument readsas follows:
"If States concludea law-making convention, they create, by ratifying
it,a contractual obligation amongthcmselves to the cfect that each of
them has to apply the rules contained in the convention. They are, however
not cxercisinga mandate to 'legislate'for the whole international com-
rnunity,for which they would require express authoriiy. If an obligation
to apply the substantive rules of the convention is also to be incumbent
on States that have not yet ratified the conventioor did not evenattend
the conference, it would need some legal basis other than the convention.
Such a basis couldbe Found only in the long accepted conditions for the:
formation of customary international faw: practiae coupled with the
recognition that such praçtice should be the law. Therefore, if it icon-
tended that rules adopted by a law-rnaking convention are generally
bindingon al1States, it must be shown either that theserules were already
customary law at the time thc convention was concluded, or thai also
the States not bound by the convention consistently apply these rules in
practice."
Leavingasideforthe moment the questionwhether the provisions of Article6
express what today areexistingrules ofçustomary law, the two Governments
feelbound to stress the deficiencyand inappositeness of the reasoning in that
paragraph in relation to theissuewhichconcerns the Courtin thepresenl case.
86. When a "law-making convention"rrccognizes to ull States genmally
exclusive sovereign rights over certain areas as inhenng in them @JO jcirein
virtue of their sovereignty over their territory, it is obvious thitis not a
matter of contractual obligations among particular States whick is involved.
Those exclusive sovereign rights over the areas in question either exist erga
omnes, or they do not exist at al1as exclusive sovereign righrs.No doubt, it is
theoretically possible to argue that a Stare which has not ratified or otherwise508 NORTH SEA CONTINENTAL SAELF
become a party COsuch a convention is frcieto ignore the convention despite
its adoption by more than two-thirds of the international community. But
wlien the convention itself is a vital link in the international recognition of
exclusive sovereign rights, because it is the deiermining factor in their estab-
lishment as righis and in the dcfiaition of their nature andscape, then it would
seern logically and legally impossible for any State which asserts pretensions
to enjoy those sights to ignore the legsilbasis of their recognition in the con-
vention.
87. Afortioris iit impossible for the FederaI Republic in the circumstances
in which the coastal State's rightsin the continental shelf have receivedgeneral
recognition, to ignore the legal basis of that recognitioninthe Ceneva Çon-
vention while asserting pretensions to those rights? As pointed out in the
Counter-Mernorials and as recaIled in paragraph 39 of the prcsent Chapter,
throughout the period during which the codification and progressive develop-
ment of the law of thesea was under considecation the whok doctrine of the
continental shelf was still in course of formationThe unilateral claims which
had been made by some States vaRed largely in fheir nature and extcnt and
many States,including al1the Partiesto the present case, had not promulgated
any claim. Tlic work of the international Law Commission helped to con-
solidatc and clarify the doctrine of the continental shelf in al1its aspects and
to develop a consensus as to its acceptability; and even in its hal report on
the eve of the Ceneva Conference the Commission preferred to rest the doc-
trine on general considerations rather than to speak of an already established
customary right. As tothe Federal Republic, even at the operiing of the Con-
ferenceits delegationwas one of the fewopposing itsrecognition ofthe exclusive
sovereign rights ofthe coastal State. Only whenthe intention of the Conference
became cZeasto recugirize rile exclusiverighiofthe coastnl Siutri onike hasis
of the Cornmission'spropomls did the Federal RepubIic decide tu join in the
general recognition of those rights and subsequently to claim them for itself.
The Federal Republic is, therefore, of al1States thone least entitleto ignore
the function of the Continental ShelfConvention in establisliing the recogni-
tion of the exclusive sovereign rights of the coastat State over the continental
shelf adjacent to itCoast or the legal basison which those rights were recog-
nized by the International community.
88. In facr, the Federal Rcpublic is here seeking to distinguish between the
contracival obligations of a ratified "law-making" convention and customary
law for the purpose of taking the benefit of the recognition in the Geneva
Convention of the.coastaI State's excIusfverights while atthe same time repu-
diating the limitation, inherent in the Iegal basiofthat rccogniiion, of those
exclusive rights to a specificarea through the principle of adjacency.Such an
attempt tosplit up the component elernentsof the recognition givenat aworld-
wide internationa1 conference to an extension of exclusivesovereim rights and
to separate the rjghts from the conditions of their recognition is wholly in-
compatible withmodern concepts of the formation, codificationand progressive
development of general international law by custom and treaty. Under these
concepts jt is, in the view of the two Governments, inadmissiblefor a State to
daim exclusivesovereign rights and at the same rime to ignore the limitations
in space attached to the recognition af those rights by invoking the fact that
the world-wideConvention recognizingand definingthem has not ben ~atified
by that State.
89. Accordingly, the two Governments regard the explanations and argu-
ments of the Federal Republic In Section 2 of Cliapter 11of the Reply con-1 COMMONREJOINDEROF DENMARK AND THE NETHERLANDS 509
cerning its "attitude towards the equidistance line" as without pertinence.
They do not touch the central point that in the present dispute the Fedcral
Republic invokes the general recognition of the exclusive rights ofthe coastal
State in the Continental Shelf Convention and at the same time, discarding
the conditions of its recognition, asserta claim in itsown case todefine thc
scope of its own riglitin lirown mantterand noi inrhat eniiisaged it~thefarm
inwhiçhg<>rrerrae/cognitioiawasgiven to thoserighrs.
90.The refcrencein that section@ara. 25) to the dictum of the International
I Court of Justice in the Norwegian Fisheriescase c~ncerning the ten-mile rule
for bays issimilarly without pertinence, because the situation in regard to the
ten-mile limit forbays was entirely difTerentfrom that in regard to tlie equi-
distance principle for the delimitaiion of the continental shelf. Before any
question of a ten-mile limit arose the exclusiverights of thcoastal State over
enclosed bays had already ken recognized for a very longtime: the recognition
goes back to Grotius and beyond. The question in the Norwegian Fisheries
case (I.C.J. Rtports 1951, p. 131)was whethcr in the course of the nineteenth
and the early part of the present century a customary rule had grown up in-
tr~ducing a tcn-milc limit as a restriction upon size of thebays which cauld
be treated by coastal Statesas enclosed. It was in that very diffcrcnt context
tliat the Court said: "In any event the ten-mile rulewould appear to be in-
applicable as against Norway inasmuch asshe hm always opposed any attempt
t~apply it tu the Norwegian coast." The recognition ofthe exclusive rights of
the coastal State in that casc Iiad, in short, ben quite indcpendenof the par-
ticular limitation which was said by the Unitcd Kingdom to have afterwards
kcome attached to them under customary law.
91. In addition, the conduct of Norway in relation to the ten-mile limit
differedconsiderably [rom that of the Federal Republic in relation to thcequi-
distance-special circumstances rule. Norway had from the zîrst persistently
opposed the application of the rule to the Nonvegian coast and had refused to
participate in the drawing up and adoption of the North Sea Fisheries Con-
vention of 1882 on Chat very ground. In the present instance, on the other
hand, the Federal Republic while objecting to some clements in the text of the
Continental Shelf Convention in 1958voted in favour of Article 6. Afterwards,
as recalled in the Counter-Memorials, on the penultimate day before the Con-
vention ceased to be open for signature the Eederal Republic deliberately
associated itself with the Convention by si~ning the text (Danish Counter-
Mernorial, para. 99; Netherlands Counter-Mernorial, para. 93). Furthermore,
althougli making a spccial declaration with referencc to Article 5, it niade no
comment of any kind in regard to Article 6. Nor did it voice any objection or
misgivings in regard to Artide 6 either in its Continental Shelf Proclamation
of 20 January 1964or in the Expose des Motifs accompanying the Bill to give
effcctto the Proclamation (Annexes 10 and 11 to both Danisli and Netherlands
Counter-Memorials). Indced, in a Note of 26 August 1963 questioning the
view of the Netherrands Government thattlie eastern boundary of the Nether-
lands continental shelf would be delimited by the equidistance line beginning
at a named point, the Federal Repubric stated that "thereare /~utovica/reasorzs
andotherspecialcircu~nstancesthetjustfi adoption in the area ofthe continental
shelf under the North Sea of a delimitation line. the position of which differs
in more than one respect from that claimed by the Royal Netherlands Govern-
ment l" (italics added). This statement could not fail to give the irnprcssion
Nethcrlands Chunter-Mernorial, Annex 9 A. COMMONREJOINDEKOF DENMAKK AND THE NETHERLANDS 511
determination of a boundary already indicated in the provisions of the Con-
vention.
93. Accordingly, the position of the Federal Republic in the present case is
fundarnentally different from that of Norwayin regard to the ten-mile rule for
bays. Until the opening of the present proceedings the Federal Republic
conducted itselfas if it rcgarded the principles and mles of international law
st out in Article 6asthe generally recognizedrules applicable in the matter. Ir
declareci its vieivs concerning the inapplicability of the equidistance principle
to its own North Sea boundaries beyond the "partial boundarics near the
shorc". But that is aEl.
94. Moreover, the Danish and Netherlands Governments see no reason
whatever to modify the conclusion reached by them in the Counter-Mernorials
I that the provisions of Article 6 express what today are the generaIlyrecognized
rules of international law governing the delimitation of continental shelf
boundaries. This conclusion, if correct, isby itself enough in their view, to
establish the validity of the delimitations made respectively by Denmark and
the Netherlands on the basis of thc equidistance principle unlessthe Federal
Republic can satisfy the Court that in the presentcase there exists a "special
circumstance justifying another boundary" within the meaning of the rule
expressed in Article 6.Tf no such special circumstances exist,the Federal
Republic is, in their view, completely incompetent in law, by its mere @se
dixif,to deny either to Denmark or to the Netherlands the exclusivesovereign
rights over theiradjacentcontinental shelveçwhichappertainto them under and
in yirtueof the generaIlyrecognized principles and mles of law governing the
continental shelf.
95. That conclusion of the two Governments is based on the work of the
International Law Commission promoting a general consensus in regard to the
law of thc continental shelf, the cornments of Governments duringthe Com-
mission'swork, the proceedings of the Geneva Conference,the virtual unanimi-
ty of the vote adopting the text of Article 6, the ratification of the Convention
by no lesç than 37 States, and the subsequent recourse to the equidistançe-
special circumstances rule for the delimitation of the continental shelf byth
States urhichhave already ratified the Convention and by States which are not
yet partics to it. TheState practisincethe adoption of the Continental Shelf
Convention has been rc-examined in paragraphs 58-75 above and it points in
the clearest manner to the general recognition of the principles and rules
expressed in Article 6.
96. In the Reply the Federal Republic in effect challenges the two Govern-
rnentsto specifywhether they consider the principles and mles of international
lawexpressedin Article6not merely to begenerallyrecognizedbut toçonstitute
general niles of customary Fawbinding upon the Federal Republic. As pre-
viously indicated, having regard to the nature of the exclusive rights of the
coastal State overthe continental shelf and the circumstanceain whitheyhave
been recognizedto attach ipsojur~ to everycoastal State, the two Governments
consider it suficienforthe purposes of the present casethat the principles and
rules expressed in Article 6 are generally accepteas those applicable to the
delimitation of the continental shelf. Whether these principles and rulcsare at
the same time to be consideredas customary rules of international law binding
as suchupon thc Federal Republic isa matter for the appreciation of the Court.
But, if the two Governrnents donot think that they are calledupon to establish
thls point, it is certainly fhview that the principles andrules expressed in
Article 6 today have the character af general customary law.512 NORTH SEA CONTINENTAL SHELF
97. Apart from arbitrarjly and inadmissibly asking the Court to shutout of
its consideration a11the Staie practicc relating to median lines-a point already
dealt with abov+the Federal RepubIic advances three general objections to
the thesis that Article 6 expresses what is now customary law.
In paragraph 35of the Reply, whileconcedingthatthe equidistance "method'"
was incorporated in the Convention in the lighr of the experiencc made with
methods of delimitation in State practice and becausitwas considered to be
the most suitable for Itspurpose, tlie Federal Republic argues:
"A law-creatingeffectin customary Iaw, however, could be attributed to
the incorporation of the equidistance method into the Convention only if
that method was chosen and sanctioned by the Convention on the ground
that itwas the only one uniformly and consistently applied in the past."
On reading this statement, the Court rnay feel inclined to ask itself how
then the Federal Republic can reconcile its claim in the Mernorial that the
exclusive rights of the coastal State recognized in Articles 1 to 3 of Con-
vention arctoday generallyrecognized as customary law (Mernorial, para. 61)
with its concept of the conditions required for the formation of customary
law, asset out in the Reply. If anything iscertain, it is that theunilateral claims
made by States prior to the Geneva Conference exhihited more numesous and
more fundamental variations with regard to the nature and scope of the rights
of the coastal Statethan did the practOFeStates inthe delimitation of maritime
boundaries.
The process of the creation of customary law is one of the mysteries of the
law,whether ininternationai law or innational legalsysterns,and theconditions
for its operation cannot be redoced to the kind of simple formula propounded
by the Federal RepubIic in the above statement. Most authorities today, for
example, acccpt that the duration of the State practice needed forthc creation of
a customary rule rnay be fundamentally affected in some spheres by the ex-
istence of world-wide international organizations like the United Nations and
the SpecializedAgencies.The concentrated multilateral negotiations and taking
of legal positions in such organizations rnay, it isrecognized, grmtly accelerate
the process ofthe formation of international customary law. The rapid dcvclop-
mcnt of the law of outer space ia clear exampleof this phenonlenon, In much
the same way the United Nations processes of codification and progressive
development of international law, involvjng as they do discussion in the
International Law Commission, observations of Governments communicated
to the Commission, debates in the Sixth Cornmittee and finally full-scale
consideration by States at a world-wide multilaterai conference convened by
the General Asscrnblyrnay bring about a rapid recognition of a customary rule.
Otherwise, the Fedwal Republic rnay not find itmsy to sustainitsstatement in
the Mernorial about the provisions of Article1 to 3 of the Convention.
Especiallyrnay these United Nations processes accelerate the recognition of
a customary rule when the mle is implicitIydiswmible in the State practice, is
suggested alikeby the precedents and the nature of the matter in question and
jsthe one "most snitabk for its purpose".
The Federal Republic, it rnaybe added, distorts thefocusof the problem by
apparently trying to isolate the question of the recognition of the mle by the
adoption of the Convention from the work of the Commission and the State
practice which followed the Ceneva Conference. The formation of customary
law is a composite process.
98. Secondly, in regard to the State practice since thGeneva Conference,
the Federal Republic contends in paragraph 49 of its Reply:514 NORTH SEA CONTINENTALSHELF
Article 6 creates generally binding lawby the mere fact that the Convention
haç kn aocepted by a suficient number of States, the Federal Republic
argues:
"This cannot be the case for the simplc reason thata rulecontained in
an Article of the Convention to which reservations are permitted and
reservations have already ken made by States parties tothe Convention,
could not at the same tirne become binding on other States not parties
to the Convention which had not ken in a position to contract out of
such a rulel."
From thisit further argues that a non-party could only become bound by
the principles expressed in Article 6 if it has accepted them by customary
application.
This argument greatly oversimplifiesthe question. In the firstplace, it again
isolates the recognition of the equidistance-special circurnstances rule in the
Convention from its wntext-the prior pracrice in maritime delimitations, the
prior work of the Commission, the attitude of Governments io the Commis-
çian's proposals and the suhsequent piactice of States consonant with the
principles exprcssed in Article;S. Again,as aIready stated, a EacultyComake
reservations does not include a faculty to make reservations incompatible
with the object and purpose of the treaty. In the present instance this would
obviously mean that any reservation in regard ta Article 6 which is incorn-
patible with the recognition of the exclusive sovereign rights of the coastal
State over the continental shelf adjacentto its coast would not be consistent
with the faculty to make reservations provided for in Article 12. Since the
equidistance principle js by its very nature linked to the concept of adjacency
to the coast,it by no means follows that, by admittiny a faculty to make
reservations to Article 6amongst other articles,the GenevaConferenccintended
to recognize an absolute freedom for parties to the Convention to "contract
out" of the equidistance-special circurnstances rule. Furthermore, the distinc-
tion,which the FederalRepublic apparently seeksto draw between an express
and an imriliednower to make reservatians-no doubt in order to escape the
fact that rekrvations areimpliedly admittedtosuch great codifyingconventions
as the TerritoriaSea, High Sras and Diplornatic Relations Conventions-does
not really affectthe substance of the question. The provisions of thcse convcn-
tions are today regarded as expressive of gcneral rules of customary law
despite the fact that, in principle, the faculty existsto make reservations which
are not incompatible with the object and purpose of the treatics and tbat
reservations have been made by some States to particular articles.
100. As to the reservations which have actualIy ben made to the Conti-
nental Shelf Convention-by France, Venezuela, Iran and Yugoslavia, those
wereanalysed in the Counter-Mernorials (Danish Counter-Mernorial, paras.93-
98; Netherlands Counter-Mernorial, paras. 87-92).
The two Governments there showed that in none of those cases did the
State concerned seek to reject the equidistance principlc as the generarule;
that Yugoslavia rnerclystated that she recognized no "special circumstances"
which could affect her own delimitation; that Iran merely stated her under-
standing of the "special circurnstances" cIause with reference to possible
delimitations of the boundaq from the high-waier mark; and that the other
two cases France and Venezuela by the terms of their reservations assumed
Reply, para. 46. ÇOMMON REJOINDER OP DENMARK AND THE NETHERLANDS 515
the gencral applicability of the provisions of Article 6, while declaring their
position as to tlic existence of special circumstances in particular areas off
their coasts. Accordingly,they feltjustifiedinconcludingthat thesereservations,
so farfrom weakening the character of the.equidistance principle asa general
rule, merely served to confirm it.
Inparagraph 50 of the Reply the Federal Republic clalms that this is "a clear
misinterprétation" of the reseniations of France, Iran and Venezuela "and of
the purpose they should serve". It asserts:
"The very purpose of these reservations was to prcdude other States
from invoking Article 6 and claiming the equidistance line if "special
circumstances" were not ~cognized. Thc three States wanted to exclude
any claim to an cquidistance boundary within the defincdareas in reliance
on Article 6. Thcrefore, these reservations are certainly natrecognition
of the primary role of the equidistanoe principle; on the contrary, they
go to showthat thc rulescontained inArticle 6 werenot thought acceptable
within the areas defined because Article 6 might be interprcteas it is in
fact done by the Counter-Mernorial, in a way which establishes the
principle of equidistance as the 'generalrule'."
This assertiokars no discemiblerelation to the content oIran' rsservation
of whichthe Federal Republic itself saidin paragraph 55 of the Mernorial that
ii"is not of interest here".
As to France and Venezuela the Eederal Republic itselfrecognizes that it is
only with respectto certain "defined areasof their coasrsthat those States have
made anyreservation at al1 to Article 6. In regard to the "dehed areas" both
States make express reference to "special circumstances" as being the buis
of their ~cservations.No doubt by invoking "special circumstances" in the
form of a "reservation", theyintended to excludeany obligation forthemselves
to have Article 6 applied to them excepton the basis of the recognition of the
existence of "special circumstances" in the "definedareas".But that does not
alter the fact-which rather itemphasizes-of their recognition ofthe provisions
of Article 6 as the generally applicable Iaw. The Federal Republic says that
these two States made their rescmations with respect to the "defined areas"
because they thought that "Article 6 might be interpreted,as it is in fact done
by the Counter-Memorials, in a way which establishes the principk of equi-
distance as the 'generainile'". A more natural andmore objectiveexplanation
of the action of these States in including their reservations would bethat fhey
~htms~lves inferpreted Article 6 ina way wwhich .stablishes the principle of
equidisfanccas 11ie"generalrule".
101. In paragraph 54 of the Reply the Federal Republic has gven a new
twist to its argument regarding the faculty to make reservations. It says that
in consequence of its repeated pratcsts and reservations al1 the North Sea
Statesknew that it doesnot recognizethe principlof equidistance as applicable
for the delimitationof its continental shelf. Then it arguas follows:
"Ifit was permissiblefor the parties to the Continental ShelfConvention,
to exdude, by way of areservation under Article 12, the application of
the principleof equidistance to certain areasbefore its coaasdid France
in its reservations with respect to certain parts of its Atlantic and North
Sea coasts, why should Germany be forbidden to make a similar declara-
tion with respect to the continental shelfkfore its North Sea coast? If
Germany were obliged, as the Counter-Memorial contends, to accept
the rules contained in Article 6 of the Convention ascustomary interna-518 NORTH SEA CONTINENTAL SHELF
that "the Gcrman attitude at the Geneva Conference cannot \se properIy
appreciated ia retrospect from the present dispute". Continuing, it says that
the Federal Republic could not possibly know that Denmask and the Nether-
lands "would go so far as to maintain that the acts of unilaterd delimitation
of theis continental shelfareas by the equidistance line 'arc prima jàcie not
contrary to internationd law and are valid with regard to other States' (Danish
Counter-Memorial, para. 59, p. 177, s~~pra; Netherlands Counter-Mernorial,
para. 53, 331, srip~a)and to interpret Article 6 of the Convention in such a
way (see Danish Counter-Mernorial, paras. 126 et seq.,pp. 203 et seq., supra;
Netherlnnds Counter-Mernorial,paras. 120 ef seq,pp. 356,et seq.,supra) as to
reduce the importance of the reservation of 'specialcircumstances'practicallyto
nothing"'. The Federal Republic's delegation, it adds, voted with the rnajority
who were in favour of Article 6because it "regarded the ruIe contained therein
aisoasa workable solution, providedthat its interpretation wouldpay due regard
toits purpose, namely to reach anequitable solution of the boundary problem".
Finally,itpoints out that "in 1958,the delimitation problem had not ken the
main German concern", but rather the possible prejudice to freedom of the
high seasand fisheries; andthat this is whyitssignature was accompanied by
a reservation to Article 5but not ta Article 6.
105. These statements are quite unconvincing as explanations of its change
of front with respect to the principles in Arti6.In the hst place, as indicated
in the Danish Çounter-Mernwial (paras. 73-74) the Federal Republic had
everyreason to know how the Government of Denmark would be lkely to
interpret the principles expressedin Article 6.In a Note Verbale of 13 May
1952to the Secretary-General commenting upon the Commission's proposals,
the Danish Government expressed its support for the median line principle of
delimitation, then specifiedonlyfor oppositeStates(Danish Counter-Mernorial,
para. 63; Netherlrtnds Çounter-Mernorial, para. 57).Jt atrachcd to its Note
Verbale a sketch rnap illustrating itç interpretation of the Commission's
proposals whenapplied fo the Da~iish const~.The Note Verbale, infer alia,
stated expressly:
"This sketchis primarily based on the boundaries fixed on 3 September
1921betwee~tDaiiishandGerrnanferrirorial waters easland west~JJutl~nd,
and the boundary fixed by agreement of 30 lanunry 1932 betwecn Danish
and Swedisbwaters in the Sound and the prolongation of these lines eom-
biriedwiih the median liiie, where the latter isapplicable, and oiherwise
bascd oi?platreformirig the locusofpoir8ts closerio Denmarlc than to aizy
afher çotmiryinilolilel."(Italics addcd.)
The Note Verbale thus made it very clear that the sketch concerned the
Danish-German boundary, appIied the "median line" where relevant and
otherwise applled the principle of distance from the respective coasts-of
adjaŒncyto one coasrrather than to theother. The Note added that "the sketch
might serve as an illustration of a division under concrete conditions" and that
the "principles outIined" might also be applicable to analogous cases in oeher
geographical areas.
The Nate Verbale was printcd bath in the report and the Yearbookof the
International Law Commission and the map, alrhough not reproduced in
those publications, was obtainable from the Secretariat of the United Nations.
In addition, publicity wasgiven to the sketch rnap in the Danish press. The
sketch map, whiçhwasitself a mere concretisation ofthe principles statein the
Danish Counter-Mernorial,Annex 8. COMMON WOINDER OF DENMARK AND THE NETHERLANDS 519
vote Verbale, depicted Denmark's continental shelf boundary vis-A-visthe
Fédcral Republic almost precisely in thciform in which it is depicteinthe
maps beforc the Court as representing the equidistance boundary htween
Denmark and the Federal Republic. In the Reply the Federat Republic has
not made any suggestion that it was unaware of the existence either of the
Note Verbale or of the map.
Accordingly, the claimin paragraph 26 of the Reply that in 1958the Ecderal
Republic "wuld not possibly know" how Denmark would interpret the equi-
distance-speçial circumstances mle in practice simply camotbe acceptedfor
one moment.
Nor, in any event, coulditk accepted that the Federal Republic "couEd
not possibly know" in 1958 ihat the equidisiance-special circumstancesrule
would be interpreted byDenmark and the Netherlands iii the way which they
have done, whenthatis precisely bhway inwhichal1theotherNorth Sea States,
other thanthe Federa Rlepubli hc,veailiomatically proeeeded Ezferpretil.
The sme applies to the cornplaint that the Federal Repubric could not pos-
sibly know that Denmarkand the Netherlands would go so far asto maintain
that the unilateral delimitation of their continental shelves by the equidistance
line areprima façienot contrasyto international lawand are validwith regard
to other States. Why should this beso far outside the perspectiveof the Federal
Republic in 1958whenit is the natural consequenceof the provisions of Article
6 in the absencoef special circumstances or an agreement to the contrary?
Why, again,should the Federal Republic be so littie in a positito foresee
an intcrpretation of Article 6 whiisthe very one that has been adopted by
i other States-by Belgiumand Iraq for example? Why, furthermore, should the
Federal Republic beso surprised that n State rnight think taaconscientiauç
attempt to derimit its continental shelf in accordance with the generally recog-
ni& principles governing the matter would lx prima focienot contrary to
law and valid in regardtoother States?
196. Consequently, the observations of the Federal Republic in paramaph26
of the Reply do nothing to explain away the inconsistencies in the Federal
Republic's attitude towards the principles cxpressed in Articlof6the Con-
vention. Equally, theydo nothing to diminish the siyiificance of the recognition
at first given by the Federal Republto the provisions of Articleasthe em-
bodiment of the generally acccpted principles and rulof internationalIaw
applicable to the delimitation of continental shelf boundaries. Since the Federai
Republic now places its case on the basis of customary law supplementeby
an alleged "general principle of law", its recognition prior to the present
proceedings of the principies of Article 6, which are incompatible with that al-
leged "general principle", is doubly significant.It Is significant, first, in regard
to the determination of the question whether the principles in Article 6 are to
be regarded as forming part of the customary law of the continental shelf on
which the Federal Republic relies. Sccondly, it is significant inregard to the
determination of the question of the applicability of the aileged "general
principle of law" calling for the division of the continental shclf on the basis
of "justand equitable shares" indepe~zdet of~ikyprInc@Jm in Article 6. The
attitude adopted by the Federal Republic at the Geneva Conference and iits
practice &ter the Conference is compatible, it is clear, only with the fist
questio~being answeredin the affirmative,and thesecondin rhnegatdve.
107. The attitude adopted by the Federal Republic towards the principles
in Article at and after thGeneva Conferenoeis significantalso froanother
point of view. The remarkable featureof the Federal Republic's action ithe
present disputesas previouslyobservedinparagraph 103above,isthat although522 NORTH SEA CONTINENTAL SHELF
Nere itcallsIn aida passage from an article by SirH. Lauterpacht in Sym-
boIae Verzijl (1858)entitled "Somc Observations on the Prohibition of 'Non
Liguet'and the Completenessof the Law". This passage,howcvcr,doesno more
than make a strong plea for the recognition of thc significanceof Article 38 (1)
(c) ofthe Statute with regard to the completeness of the legal order and the
avoidance of a non liquet. Ttisentirelygeneral and contains nothinto indicate
that, in the viewoEJudge Lauterpacht, the situations in the present cases would
cal1for the application of a "general principle of law" within the meaning of
Article 38 (1)(cl;nor does it contain anything to indicate that, in his view, the
application of the so-called principle of just and equitable share in the present
cases could passibly be a legitimate use of the Court's powers under that
provision of its Statute.
The argument of the FederalRepublic then proceeds:
"Today it is generally accepted that general principles of law racognized
by al1nations form part of international l; theyare the ourcome of legd
convictionsand values acknowledged al1over the world. Some of them
may cven impose themselves as having an inherent, self-evident, and
necessary validity."
Here it calls in aid another artide from the SymbobeYerzijI(1958)-by Sir
Gerald Fitmaurïce and entitled "The Formal Source of InternationalLaw".
But this again does no more than examina "general principles of law" in
general terms and to provide a text for the statement that "some may even
impose themselves as having an inherent seIfaident and necessarq.validity".
It does nothing to support the view either that the presentcascs cal1for the
application of Article 38(1) (c) of the Statute or that the application of the
so-calledprincipleof theG'jusand equitable share" could possibly be legitimate
in the context of these cases.
113. Theargument of the Federal Republic seems, in the finalanalysisto be
that which isfound in paragraphs 12and 13.The earlier paragraphrms:
"It is the function of the principle of the just and equitable share to
supplement the emerging law on the continental shelf. While it had been
gradually recognized in the practice of States that every coastal State has
@sujure an exclusive rightto the seabed and subsoil of the submarine
areas 'adjacent' to its coa(cf.Articles1 and 2 of the Continental Shelf
Convention), generallyaccepted rules on the delimitation oa continental
shelf adjacentto more than one State were, and still are, lacking. It had
been show in Part TI,Chapter 1,of the German Mernorial (cf. paras. 29-
38, pp. 30-36supra) that the practicofStates as welas the authorsof the
Continental SheK Convention started from the premiss that any rule,
method or formula for the doliniitation afcontinental shelf adjacent to
thecoast of two or more States shoufd apportionajust and cquitabIeshare
toeach of these States. That this was the raison d';ire of the formulation
of Article 6, paragraph 2, of the Continental Shelf Convention, had been
totally ignored in thearguments put forward by Denmark and the Nether-
' lands in favour of the equidistance line."
This passage contains the ex cathedra reassertion regarding the State
practice which has been mentionedinparagraph I 11above. Sofarfromignoring
the raisond9EIreof the formulation of Articl6, paragraph 2, the two Govem-
rnents,mcticuIously examined the State practiceand rneticulausIy traced the
formulation of the provisions of Article 6 from the Cornmittee of Experts
through the International Law Commission and the Geneva Conference to the 523
COMMONREJOlNDEROF DENMARKAND THENETHERLANDS
text of that article; and they showed that the raisond'itre of its provisions
was not the sharing out of the continental shelf but the delimitarion of the
boundaries of the continentalshelf adiacent 10 each coastal Sfate. If any"ig-
noriog" has occurred in tbis connection, it is the igmciringby the Federal
Republic of the plain and consistent meaning of the Staie acts, the proposals
of the Experts and the International Law Commission and of the text adopted
at the Conference in a sense contraty to its own assertions.
114.Paragraph 13,however, gives a slightlynew tum to the argument:
"Article 6, paragraph 2, of the Continental Shelf Convention was but
one cauticiusstep in the attempt to fina formula whiçh might lead to an
equitable solution of the boundary problem; it is exaggerating to say
that Article6 had already 'translated this generalconcept into the more
concrete criteaia for the delimitation of continental shelf baundaries'
(Dan. C.-M,,para. 55, p. 175,supra; Neth. C.-M., para. 49, p. 329, supra)
becauseitofers nocriteriaas rothecir.cumstanceswhichalhw the applicatbn
ojrke equidistaln icee,or whfchoreso 'special'as fojustfi anotiierboundary
line. Therefore, itnot surprising that the authors of the Continental Shelf
Convention by a verywise dccision put the agreementbetween the States
concerned inthe first place and thereby made it an obligation for the
Statesconcernedto seek a settlementprimarilybyagreement.What purpose
should this provision serveif oneside were allowed to start negotiations
from the outset with the preestablished argument that the equidistancline
is the only applicable rule, without considering whether the equidistance
line would provide an equitable resdt? Byproposi~zgthegrincble ofthejmt
and equitableshwe as the controlling principle for the delimitarionof the
coniirientalsherj;the FederulRepubiicofGerrnanymks the Courttuprovide
the Parties withn guiditg lineforthe negotiation of an agreemenr.If the
Court. felt able to add some more precise criteria ro guide the Parlies
inthespecial caseof the NorthSea (likethosc submitted in ParcTT,Chapter
llï, of the German Mernorial; cf. paras. 76-87), it would certainly help
I the Parties ta reach agreement more easily." (Itdics added.)
This paragraph seems to the two Governments to besomewhat unclear on
the question whether the Court isbeing asked to oust the equidistance-special
cjrcumstances rule altogether asa rule applicable as between the Parties orto
direct tliat the principle of "the just and equitable share" should beregarded as
a principle controlling the application of that rule. Rut, however the matter is
put to the Court, the two Governmcnts are strongly of the opinion that the
Federal Republic's whole thesis regarding the application of the principle of
the "just. and equitable share" as a "general principle of law" within the
meaning of Article 38 (1) (c} of the Statute is, in the circumstances of the
present cases, without any foundation whatever.
115. The two Governments will assume, for the purposc of the argument,
the existence of a çeneral principle oflaw of the kind alleged by the Federal
Republic. ln doing sa, however, they miist express every reservation on that
point; for despitetlie extreme importance which it givesto this principlin its
argument, the Federal Republic has made not the slightest attempt to demqn-
strate the exisiencçor the nature osuçh a "general principle"or the categories
of legal titles with rcference to which it may have application. The Federal
Republic has simply asserted that the alleged principle has an "inherent,
self-evident and necessary vafidity".This bcing so and the allegcd prin~iple
beingwhollyincompatible withthe "legal convictions" of States in international524 NORTn SEA CONTINENTAL SHELF
law, the fwo Governments do not feel called upon to examine the actual posi-
tion inthe legal systernsof the worId in regardto the "principle" of the"just
andequitable share".
116. II hasken demonstrated in Chaptcr 1 of this Common Rejoinder. as
also in the Counter-Mernorials (Part 11,Chapter l), that the alIcged principle
js inconsistent with the very bais of the whole corpusof rules by which in in-
ternational law boundaries, whether over land or in maritime areas,are deter-
mincd. The question has aiready ken deale with fully in Chapter1 and there
js no nced to repeat the arguments. In international law the rules governing
the detcrmination of boundaries do not startfrom thc premiss tliat there is an
area of land or sea or seabed to be distributed on the basis of shms to be
allotted by refcrenoe fo some criterion of proportion. Thcy start £rom the
premiss ofthe extension in space of the sovercignties of the States concerned
and the matter is decided by reference to thquestion of which of them, on the
basis of the applicable rules, has the better claim to the extension of its sover-
eignty over the particular areas. rn maritime areas moreover, the fundamental
principlc for determining the title oa coastal State to extend its sovereignty
over anygiven areas is the adjacenq and appurtenance of those areas to its
own coasts rather than to thecoasts of any other State.
117. In short, the Federal Republic is asking the Court to apply in the
prcseni casesa so-called "general principle oflaw", alleged texistin national
legal systems, that is incompatible with the principles on which, in the inter-
national legal system, the positive law regulating the matter is based.The two
Covernm~nts, while not in any way questionhg the significanceof Article 38
(1) (cl, consider that to appeal to it undcr those conditions is completely
inadmissible. The gcneralprinciples of law derived from national legalsystems
which have been applied under Article 38 (1) (cl have always ben principles
recognizcd to be equally appropriate in the relations ktween States. The
Federal Republic itself speaks of the general principlesof law applicable under
Article38(1) (clas "the outcome of legalconvictions and values acknowledged
al1over the world". How can thislx said ofa principle which runs directly
counter to the principles recognized in international law itself as reprcsenting
"the Icgal convictions of States" in thc matter? Least of al1can it beso said
when the "legal convictions" of States have been deliberately andracently
expressed in a sense ccrntraryto the alleged principle ia general convention
intended to codify the law.
118. An equalIy fundamental objection to the Federal diepublic'sinvocation
of Article 38 (1) (cl is that thereisno question here of the absence of ariy
relevant principle of international Iaw by which to dcterrnine the Issues in
the cases before the Court. In the view of the two Governments, the relevant
principles and rules of international law are those expresseinArticle 6 of the
Continental ShelfConvention; and the application of the special circurnstances
exception has to be determined by reference to the indications contained in the
work of the International Law Commission, the Gcneva Conference and in
the practice of StatesThesc indications, as will be show in the next Chapter
of this Common Rejoinder, provide definiteenough criteria for determining the
existence or othenvise in the present cases of any "special circumsrance justi-
fying another boundary line".
119.Itisfurther the vicwof the twa Governments rhat, even if the principles
and rules of international law arnot considered by the Court to be applicable
as betweenthe Parties, there ino possiblequestion ofa nonIiquetin the present
cases. They contend that, in that event, the Court's clear course will be to NORTH SEA CONTINENTALSHELF
CHAPTER 3
THE QUESUON OF SPECIAC CLRCUMSTANCES
122. The mainobject of thisChapter isto interpret the "specialcircumstances"
cIause(Section 1)and to put the facts of the twa cases before the Court to the
test, whether special circumstancewithin the meaning of the Convention are
present (SectionII). The Reply, paragraph 76(pp.421-422,supra) seems to fol-
low the line laid down inthe Mernorial but in the new Submission 2 (c),the
clause has been directlyand cxpressIy-although in aquite general and subsid-
iaryway-invoked in casethe Court finds that the second sentence in Article 6,
paragraph 2,of the Continental Shelf Convention is applicable between the
Parties. The Federal RepubIic has thus, however belatedly, invited the Cotot
pronounce on the application of the "special circumstances" clause.
Section 1, The Meaningof the CIauseof "Spfcial Circumsbnces"
JustifyingAnotherBoundar~L rine
123. It is beyond doubt that the "speciaI circumstances" clause seout to
correct the principle of equidistance in cases where a strict application of this
principle wouldlead to a resuIt unacçeptablfrom a legal point of view. The
intention of the Geneva Convention on the Continental Shelf was to lay down
rule osf law ktween States. This is particularly obviousfrom the replies of the
Govemments to the International Law Commission's 1951 report and the
Commission'sreaction thereon (Danjsh Counter-Mernorial, paras. 64 and 65,
NetherIands Lounter-Memorial, paras. 58and 59).The legalconcept of special
circurnstances has foundexpression in the Convention inthe form that speçial
circumstances are to be taken into account only when they jwtify another
boundary line. If Article 6is applied as a ruleof Iaw this must necesçarily
mean that the:correction of the equidistance principle which the clause clearly
intends, can take placeo~rlyifdeviafionfrom the equidisr~ticline is jusrifiecl
iowards borh Stntes-i.~.,the Staic which ''gains"aridtlle Statwhich "los~s"
ky ihe curmciion.In this consideration the two Governments find an essential
guidance for the understanding of the "special circumstances" clause.
124. Certain Eorms of coastal configurations exist where, despite essentiai
divergenciesbetween the continental shelf areas of the adjacent countnes, no
correction of an equidistance boundary is justified. This is clearly illustrated
in figur eof the Danish Çounter-Mernorial (p. 200, supra).The differencebe-
tween the shelf area which under the equidistance principle appertaitoMid-
dleland and theareasappertaining to Leftland and Rightland seemsindisputably
clear. At the same time nobody would suggest correcting the equidistance line
thereby cnlarging the area appertaining to Middleland. The figure prirnarily il-
lustratcsan equidistance delimitation inthemedian-line form, a delimitation
whichthe Federal Republic of Germanyagreeswould lead to just and equitable
results unless islands interfere.
125. The reasonwhy the arca of Middleland must remain iinchanged is not
simply that it ia median line. The reason js rhat fowndations farcorrection
of the equidistance principleare entirely absent-a correction would not be
j~sl~J?ed. he areas of the continental shelf, to whieach of the four States
sbown in figure 1isentitled under the equidistance principle constitute inregard COMMONREJOLNDER OF DENMARK AND THE NETH~LANJJS 527
to each individual Statea ~atural continuation of the territory of the State into
the sea and the outcome in its entirety is in conformity with the general geo-
graphical situation. Any correction in favout of Middleland would invoive
areas to wliich one or marc of the other States is undaubtedly entitled. Jrre-
spective of how much geagraphical conditions limit the continental shelf of
Middleland in relation to the two adjacent States, thcse geographicalconditions
could not be takcn to constitutea special circumstance justifyia ngother
boundary line. Ttseemsthus legitimate to intcrpret the "special circumstances"
clause IOthe eflect thaif canbe invoked againsta Srate whosecoriti~renta lizeFf
bounduryunderthe eguid'isiancpriitciplreflecfsprojecl~+gcographicalfeafur~s
(primarily certainis[andrandpetiinsufas) whereas it cannorbe agpliedagaitnt a
State whosccontinenialsheifhasasoiidgcographicalconnecrionwifhrheterritory
of fiiat Stafe thereby comfîluting a nafuralcontinuationof the territory of the
Srate in copiforn~ifwith the generalgeographicalsifuation. This interpretation
is confirmeciby the travauxprépurafoires.
J26. Accordjng to the Reply, paragraph 82, there is"every indication that
'special circumstances'which may influence the determination of boundaries
must be understood in the broadest sens". This passage seems to indicate
that the travaux préparatoiresof Article 6 of the Conventionofferfoundations
for this interpretatioln paragraph 82 of the Reply,however, there isno refer-
encc to the travaux préparatoiresand a perusal of the entire Reply will only
show repeated references to the Comrnentary of the 'International Law Com-
mission (Yearbookofthe I.L.C., 1956,Vol. II, p.300) which states with regard
to special cucurnstances that "this case may arisc fairly often so that the rule
adopted is fairly elastic".
This staternent is presumably the foundation for the several times repeated
assertionofthe Replythat the interpretation givento the"special circumstances"
clause by the tv+oGovernments is too narrow and restricted. The Commcntary,
however, is in full agreement with their interp~etationof the clause. ThCorn-
mentary states that a modification of the strict application of the equidistance
principle rnay often be required and sincc there area great nurnber of srnall,
insignificant islands throughout the world-also situated in such a way that
they may influence the delimitation of the continental shelf-it is obvious
that the interpretation laid down here will frequently make the cIause appli-
cable.
127. In the Mcmorial, paragraphs 69-72, the Federal Republic examincs the
meaning of the expression "special circumstances" in greater detail. It is in-
teresting to noie that al1 its quotations regarding special coasial geographic
configurations from the International Law Commission, from the Geneva
Conference, and from the doctrine after 1953 rcfer solely to certain small,
insignificant islands and peninsulas. A thorough examination coveritig the
work in the International Law Commission and at the Geneva Conference-
also includingtho Paper mentioned in the Mernorial, paragraph 40, distributed
by the British detegation to the Geneva Conference-wili show that the only
specific coastal geographical configurations which are deçcribed as falling
within the "specialcircumstances" clause and thereby giving foundation for a
correction of the strict application of the equidistance principle those just
mentioned :small insignificant islands and certain peninsulas (promontories).
The statements in the truvarixprgparnfoires fully support the present inter-
pretation whereas there is na foundation for the assertion in paragraph 82 of
the Reply thar "there is every indication that 'special circumstances'whlch
rnay influence the determinazion of boundaries must be understood in the
brriadest sense".528 NORTH SEACO~TINBNTAL SHELF
128. It remains to exmine further the statemcnt made above that the ap-
plication of the "special circurnstances" clause leadto a deviation frorn the
strict equidistance boundary. No doubt it is because the exception is applied
only when the geographical configuration does not constitute an adequately
"solid geagraphical cannection" (Reply, para. 60) betwcen the contincnial
shelfand the territoryofthe State concerned that the following suggestion was
madeby Mr. Kennedy, the United Kingdom DeIegate atthe Geneva Conference
(Oficial Records, Vol. VI,p. 93):
"he suggestedthat, for the purposes of drawing a boundary, islandsshould
be trcated oii their merits, verysmall islands or sandcays on a continuous
continental shelfand outsidc the belss of territorial sea being neglected
as base paints for rneasurement and having onIy their own appropriate
territorial sea".
A dclimitation on these lineswould bc illustrated by the Agrecment between
ltaly and Yugaslavia as this is understood by the two Govemmcnts. According
to the information received the contemplated boundary is a "median" equi-
distance line rnodificdia fcw placeson account of problems presentcd by cer-
tain small islands @ara. 67 above). Such a merhod of delimitation shows that
the mle of equidistance is in principle applicable even If certain corrections arc
made with regard to particular basepoints and wiIlalways furnish a suscicient
legal basis for the determination of a boundary.
129. The special circumstances clause as interpretedby the two Govern-
ments will always offer a criterion ptoviding obiactive directions for the deter-
mination of the Iine of the boundary. This wouId not ke the case if the inter-
pretaîion invoked by the Federal Republic of Germany were accepted. The
consequences of the interpretation af the Federal Republic appear in theGer-
man Submission 4 (RepIy, p. 435, supra), the single operative submission. As
pointed out in paragraph 25 above, the su-called principle which the Federal
RepubIic asks the Court to decIarein Submission 4 siinplydoes ~iotfurnishany
basis for determiningthe boundary by agreement. To intarpret the "spacialcir-
cumstances" clause in a manner which daes not provide fora dclimitation based
uponlaw ~annot be correct.
Ttis in conformity with this cornpletclyvague interpretation of the "special
circurnstances" clause givenby the Federal Republic of Germany-and indeed
with its whole position in the case-chat in the Rcply the Fcderal Republic
does not even try to indicate, what actuai bouiidary liitdaims to be entitled
to as a matter of right. It is therefore dificult to understand how in paragraph 31
of the Rcply, the Federal Republic can Falkof "the disputed area" vis-A-vis
Denmark. It does not appcar that there is any specificarea with regard to
which it can be said that there are conflicting claims ofright.
Section II. The Absence of Any "Special Circumstances" in the Cases
Before the Court
130. In considering the question whether in the casesbefore the Court special
circumstancesjustifyanother boundary line,it would benatural firstto ascertain
whether on the one hand the Danish continental shelf in the North Sca and
whether on the other hand the Nctherlands continental shelf in the North Sea,
both delimited according to the equidistance principle may legitimately be
regarded as continuations of thc territorieof these two States respectivelyIf
this is so, the Federal Republic of Gerrnany (Rcply, para.60) recognizes that
thesc two States have legal titIzsto these continental shelves. According to the
Reply the continental shelfmay legitimatelybcregarded asa continuation of the COMMONREJOINDBROF DENWARK AND THE NETHEKLANDS 529
tcrritory provided it has a solid geopraphical connection wirh and forms a
natural continuation of the territory. A glance at eaof the charts grcscnted
inthe casewillshowthat these conditions have beenfulfilled.Thiis particularly
obvious in figure3 in the Danish Counter-Memorial (p. 213,supra) and in figure
4 in the Netherlands Counter-Mernorial (p. 366, supru),in which figures the
Danish and Netherlandscontincntal shelvesinthe NorthSea have beensketched
in such a way that they can be judged alone and without cornparison with the
continental shelf of the Federal Republic. Tt is notable that the Federal RP-
public of Gerrnunynorvherein its MemoriaJ or its Reply hm bec11ohdeto assert
rhadthe continental sheliresof Denmark and the Netkerlands deljmi~ed accor-
di~lg io the equidistancepriiiciple should nod in bhemselvesbë ~iornialand
jusi. Tn the comrnentary to the above-mentioncd figures (Reply, para. 85) the
FederalRepublic recognizesfhat the impressiongiven by the geogrophicalfacts
shuwn by the iwo figures îsthut the Danishshare as welias the Nerkerkrtrds
share of the continental shelf in the Norfh Sea are pevfecrly normal, though
it goes ontaadd ihafcumgaredwilh the Gertnanskare cnlciilatedin relafion to
the respective coastlines,they are no!as "nnrmal"as they shouldappear.When
the Federal Republic of Germany nevertlicless invokes special circurnstances,it
builds upon two wholly different and seerninglyirreconcilable points of view.
131. The Federal Republic argues from thc principle laid down in the
Reply, paragapli 82, that if geographical conditions bring about that an
equidistancc boundary will have the effect of causing inequitable apportion-
ment of the continental shelf between the States adjacent to that continental
shelf, such circumstances are "special" enough to justify another boundary
line. Paragraph 83 next asserts that the almost sectangular bend in the German
coastline will make the equidistance baundaries against Denmark and the
Netherlands meet before the coast of the Federal Republic, thcreby reducing
its share of the continental shclfin the North Seato a disproportionately small
part ifcomparcd with the shares of the other North Sea States. This way of
arguing must be rejected. As stated in paragraph 126 above, the special cir-
curnstances clause may have a comparativtly frequent application but thc con-
dition for applying it must be that a correction isjustified. The faci ihat
the Federal ReprabIicfids its urea too small con never jusrifya redraerioiiof
Denmnr;k's andthe Nedherlarids'arm nsthesp~rein themselvesrlngriestionably
fulIy"nnrmal" and "legitimaie". The Federal Republic apparently overlooks
the fact that Dcnmark and the Netherlands also have titles to areas of the
continental shelf under international lawwhichin tkei~.Icgal Basiare identical
tothat ofthe Federal Republic.Thc complete lack of foiindation of the stand-
point of the Federal Republic, as forrnulated in RepIy, paragraph 83,ismade
evident by examining figure 1 of the Danish Counter-Mernarial (p. 200, supra).
Whatever the reason why Middleland (the Fedtral Republic of Germany)
finds her shelareainsufiçient, Middleland cannot obtain compensation from
Rightland (Denmark) and Leftland (the Netherlands), since the areas of these
two Statcs are fulIy "normal" and "lcgitimate" as continuations of their res-
pective coasts.
132. The Federal Republic of Germany also attempts to invoke-however
tentativeiy and sketchily-the concept of "special circumstances" inanother
wny. In itReply, paragraphs 58-89,92, 95, and 97, the Federal Republic tries
to presenta picture in which itsequidistancarea depends upon spccificpoints
upon the coast, projecling points-or parts-or promontories. This picturc is
drawnwith niarked caution-slronger when discussed in a gcneral sense and
weakerwhennearerto theactual case.Thisstandpoint isrevealedclearlyinpara-
graph92inthe comments tofigure 5(Rcply,p. 430,s~/pra)adiagram whichobvi-530 NORTH SEA CO~ENTGL SHELF
ousIy isahighlysimplifiedilIustration of the case before the Court. The Federal
Republic contends that "fwoprojecting parts of the coasfsof StoreA andStafe
C" (italics added) cause that the German share of the continental shelf, çal-
culated in accordance with the equidistance principle, is too srnall,
133. The only possiblerepIy tothis assertion is thit iscompletely untcue.
Figure 5 has nothing resembling a projecting part which may influence the
equidistance line.Any true map of the area illustrates this still more clearly, and
the Federal Republic of Gerrnany has not given the siîghtest hintof wliatpart
is fo be comrderedas puojecting or whai influence onthe bouridary Iiizess~icha
part m@r Iiave.The equidistance lines between on the one hand Denmark and
the Federal Republic and on tlie other hand the Netherlands and the Federai
Republic have been drawn on the basis of coastal configurations fully in
conformity with the land inasses bchind them and the equidistance areas of
al1 threc States therefore becorne a natural continuation of the territory of
each State-in conformity with the general geographical situation. Neither
Denmark nor the Netherlands in themselves oret any foundation for a theory
based upon the effect ofa "projecting part".
134. But, as stated above, paragraph 92 of the Reply mentions twoprajecting
parts ofthe çoasts ofthe two counfries.As such parts are non-existent the only
way of understanding the argument of the Fcderal Republic of Germany is to
regard the Netherlands as a "projecting part" on the Danish-German coast
(whichruns north-south) and Denmark as a projecting part of the Netherlands-
Geman coast (which runs west-east). That this assurnption lacks reason is
evident at once. The crux of the entire argumentation is, however, that the
Federal Republic of Germany in paragraphs 59-61 of the RepIy givesan inter-
pretation of the "special circumstances" clause-viz. that certain pr~jeçting
parts are tobe disregardcd, thus correcthg the strict equidistance principle-
and then in paragraph 88 goes on to present the case &fore the Court as if
there wereprojccting parts on the coasts relevant in tcases before the Court.
Thisis obviouslyuntrue and this chain ofargumentdoes not afford any founda-
tion for the contention thatthere are specialcircurnstancesjustifying another
boundary Iine.
135. The fact is simply thatthe getieralcourse of rhese ardinary coastlines
leads to a result somewhat less satisfying to the Federal Republic than to
Denmark and the Netherlands respectively because the coastline of the North
Sea changes direction approximately in the middle ofthe German coast. But as
illustratedin figure I (Danish Counte~-Mernorial,.209, supra)eiitireldi'erens
courses 01ordinary coastlir~esmay leadto qui& sin~ilarresulfsThere is nothing
"special" in this. An adjustment of equidistance lines in casesof thjs nature
would lead to encroachments upon the fully legitimate continental shelf ofthe
adjacent State and rnean a general redistributionof shelf areasIt was never
conteniplated that the "special circumstances" clause should have such an
efïect andlead to aredistribution of the continenta1shelf which is not justified
in relation to the State from which part of thc area naturally appertainingto it
istaken away.
136.This Section has not deaIt with the German thesis that the Norrh
Seoassucl1 is"aspecinlcase".The reasonis hat although thisthesisisrnentioned
in the RepIy on several occasions, Itseems now to have becn given up. When
stating in the RepIy*paragraph 79, that the drawing of bnundaries must bc
"a joint conccrnofalÈ North Sen S~ufe~"(italics added) the Federal Republic
can only mean-as the comparatively small areas of France and Belgium have
neverbeenmcntioned-that thesharesof theUnited Kingdom and Norway must532 NORTH SU CONTINENTALSKLF
the two kinds of deviation.IF according to the "special circurnstances" clause
a deviation ismade, sorne basepoints are disregarded and the bararidnryIi~is
delimitedby~pplicarian.of rJaeruleofequidistancebmed on oiher-and better-
busepoints.The deviation advocated by the Federal Republic results in the
so-called "coastal frontages", the sole function of which is that rlieproportion
of the iength of rhe "coastalfrontages" oJ the States involvedshall serve as a
correcfionof& sizes ofthe continentalshe/fdelimited accordittloothu critevia.
Neither the position nor the direction of the alleged "coastal frontage" has any
bearing on the ddemitation and consequently ao "coastal frontage" can ever
by itself givethe solution ta boundary question.
It isapparent that a concept ofthis kind has no connecrion with the pro-
visions of the Geneva Convention.
ScctionIV, IndividudObservations ofthe TwoGovernments
142. The DanishGovernmcn~ wants to supplement what has been developed
in Chapter 3, Section 1, of this Common Rejoinder by adding the fallowiag
observations bearing upon the interpretation of the "special circumsrances"
clause presentedby the two Governments and to be taken into account before
the conclusion formulated in paragraph 125:
(a)It should be examined what kind of geographical configurations willcorne
under the clause, when it is understood ta the effcctthat the correction of
the equidistance principle can take place onlifdeviation from the egni-
distancelineisjustifieidiowurdsborhSfaies-i.e., theSfate which"gains"
and the State whick"loses"by theçorrectioii(para. 123 above).In figure
E (opposire)two StatesA and B are fronting each other with the entisea
area between them forrning a continental shelf and wita small,insignifi-
ant island-possibly an uninhabited sand reef-belonging to State A
pIaced almost in the middle. Tnthiscase a delimitation OFthe boundary
betweenthc two States according toa strictapplication of the cquidistanci:
principlewould also take the island into account and an equidistance
boundary would thiis run much closer to State B than ta State A. Osten-
sibly this wouldbc in conformity with the ruleof adjacencyupon which
the equidistance principle is founded.But part of the continental shelf
which would thus be allocated to A could not be considcred a natural
continuation of State A's territory into the seand the result could not
besaid tobc in conformity wjththe generaIgeographic position.In a case
like this, the question of the application of the clause clearly arisesand it
rnay be that the strict applicationof the equidistance principle must be
corrected. In this event in disregarding the srnall insignificant island the
deviation from the equidistancc Iine wjll k just$ed not oriiyfawards
SlafeB but also towardsStafe A.
(b) Not only srnall and insignificant islmds but also geographical configura-
tions regarding the mainland coast may influence the delimitationinthis
manner and thus be considered a special circumstance justifying another
boundary line,Figure F (seep. 534,infraillustratesthe effectaftrueequi-
distance delimitation caused by a sharply projecting-but in itself insignift-
cant-part of the mainland coast and figureG (se p.535, infraillustrates
how this exarnplelargec lyrresponds to the example illustrated by figBre
in respect of an Island. Also in these instanacorrectioriof the equidis-
tance Iine seemsjustified. Thc reasonforthis, in relatioto State A and
StaceB, is exactly thsame as described in paragraph (a) above-that
the shelarea aocruing to StateA based on the peninsula is not a natural COMMONRFJOINDER OF DENMARK AND THE NETHERLANDS 533
Figure E
continuation of State A'sterritory, and the result aa whole is notin ac-
cordance with the generalgeographic situation.
lt should be noted that these conclusions are wholly in conformity with
paragraphs 59 and 60 of the Reply. These parag~aphs are designed to
prove rhat strict "propinquity" in itself is not al!-important. This holds
good in so faras concernsthe situations mentioned in the Reply, para-
graphs 58 and 60,which have ken examined and interprcted above.
In such instances a correction of the equidistance principleis called for
and the grounds on which it is done are embodied inthe "special circum-
stances" clause. This conclusionis also endorsed by the Reply in para-
graph61. In thc light of the statements in paragraphs 59-61of the Reply,
it is astonishing that the Federal Republic of Gerrnanyinvokcs the ap-
plication of special circumstances in relation to Denmark. To a certain
extent this arises from the fact that the Federal Republic laterin its Reply
also classeswhat are quitc differentgeographial configurations as special
circumstancesbut themainreasonis that whereit comments on the actual
case the Federal Republic of Germany uses the expressions "projecting534 NORTH SU CONTINENTAL SHELF
Figure F
part" and "projecting point"of a coast in an entirelydifferentandun-
realistway at variancewith the meaning ofparagraphs 59and 60 of the
Reply.
143. The Nerfrerlaiidi Coïernmendoes not consider it necessary in the
present Rejoinder to express jts opinion on the questio nhether tlie con-
figurationofcoastlinesorlierthanthc NorthSea coastlineof theNetherlands,
the FederalRepublicand Denmark, is suchas tojustifyparticulardeviations
from the taue equidistancelines. It would merelwish toreiteratewhat has
been staredin paragraph 145 of theNetherlandsCounter-Mernoriar lelaiing
to the Iow-tideelcvationcalled the "Nohe RifY. Tndeed jtis clear from the
map, in the Netherlands Counter-Mernorial{ that in this case a "pro-
jecting part" of the Federal Republic's coastline has automaticaIly been
usedas a basepoint for the determinatioof theboundaryline in accordance
with the equidistance principle, to the beneoftrrheFederal Republic. The
Secpockci insidebackcover. FigureG
Netherlands and the Federal Governments,though fully aware of the facl.
thatthe takinginto account ofthis,in itselftotally insignificant,low-tideeleva-
tion influencesthelocation ofthe boundaryline on the continental shelf over
a considerabledistance out into the sea, neverimagined tbat there could be
any question ofthe use ofthe "Hohe Riff" as a basepointfor the construction
of theequidistance line.
SectionV. Conclusion
144. In theopinion of thetwo Govanments, the only specialcircumstances
whichfdl to beconsideredby the Courtin the ccontextofthe presentcases are
geograpbicalspecialcircumstances.
Enthe lightofthe considerations advanred in the precedingsectionsof this
Chapter and of the interpretationof the special circumstancesclause which
theybelieve to be correct,the two Governmentscontendthat nogeographical
circumstance exislsin thepresmt cases,whichcotildpossiblyconstltutea sp~cial
circumsiatzcewithi~rhe rneaningofrhatclause. COMMONREIDENDEROF DENMARKAND THE NEMERLANDS 537
PART II. SüBMlSSIONS
In view of thefactsandarguments presented to the Court by the Govern-
mentsof Denmarkandof theNetherlands in theirrespective Lounter-Mernoriais
and in thisCommon Rejoinder, the two Governments severally reaffirm the
considerations andsubmissions presented by each of them to the Court in
Parî Illof their respective Counter-Memorials.
l In view of thossame factaand arguments and with regard to the delirnita-
tion ofthe boundasiesof the continental shelvkst, asbetween Denmark
ad the FederalRepublic and,secondly,asbetween the Netherlands and the
Federal Republic,
May it furtherpleasethCourt tu adjudgeand declare:
4. If the principand rules of internatiolawrnentioned in Subrnissi1n
of therespectiveLounter-Mernoriala arenot applicaasbetweenthe Parties,
the bouudaryis tobe determined betweethePartieson thebasisof theexciu-
siverights of each Party over the continentaladjacen ttitscoastand of
the principle that the boundaristo leave to each Party every point of the
continental shelf which lnearer to its coast than to the coast of the other
Party.
1 30 August1968.
(Signed) Bent JACOBSEN (Signeil) W.RTPHAGEN
Barristerat the Supreme Court Agent for the Eovernment
of Denmark of theKingdom of the Netherlands
Agentfor the Government
oftheKing&m of Denmark COMMON REJOINDEROF DENMARK AND Ta NETMERLANDS 539
PART ID- ANNEXES TO THE COWON REJOINDER
SUBMIIYEDBY THE GOVERNMENTSOF THE
KTNGDOM OF DENMARKAND THE KINGDOM
1 OF THE NETHERLANDS
1 Annex l
PROTOC OFPROVISION AAPPLICATI OPTHE FISHEWE CSONVENTION
(9Mach 1964)
The Govemments of Austria, BelgiurnDenmark, France, the Federal
Republic of Germany, Ireland, Italy, Luxembourg, the Netherlands, Portugal,
SpainSwedenand the United Kingdom of Great Britand Northern Ireland
Have agreedasfollows:
Article1.
The Contracti~g Parties will raise no objacGovernmentwhich has
ratifior approved the FisheriesConvention opeforsignature at London
on 9th March, 1964, applies provisionally the prooftheConvention,
having fkst notiitsd~cisionto the Governmentof tUnitedKingdom of
Great Britaand Northern %eland.
Article 2.
(1)The provisionaiapplication of the provisioFisherieConvention
by a Contracting Party will entail the establishment of the list of arbiters
provided for in Art1cof Annex II of the Convention.
(2)A Contracting Party which has provisionallyapplied the provisions of
the Convention shall be bound by its provisions, in particular Article 13, and
shall not objeifthey are invoked baGovernment which has signed the
present Protocand the Convention, evenif the latter G~vernmentnot
yet ratifiedor approvedthe Conventiona view to settlidisputeraised
bythis provisionalappiication.
Article 3.
Thepresent Rotocol shall be open for signature froMarch, 1964to
10th April, 1964. It shall enter into force, when it has been signed by two
Governmentsas betrireenthose Governments, and in respect of any Govern-
ment which signsit thereafter on the date of signature by that Government.
Article4.
(1Upon the entry into force of the Convention, the present Protocol shall
automatically Rase to haveeffectas betweenGovernments whic&corne
parties to the Convention.
(2) The prescnthoiocol wceaseto haveeffectIrespect of anGovem-
ment which notifiesthe Governrnofthe United Kingdom of Great Britain
and Northern Ireland of its decisionnot to ratify or approvethe Convention.
Article.
The Government of the United Kingdom of GreaBntain and Northern540 NORTH SEA CONTENENTALSHELF
Ireland shalimrnediatelyinform althesignatoriesothepresentProtowi
of eachnotificationreceivedin accordancewjth Article1 or with par2graph
ofArticle4.
Sn witnesswhereof the undersigned,being duly auchorisedtherehave
signedthe presentProtocol.
Done at London thisninth dayofMarçh 1964,in the Engliand French
languages,eachtextbeingequallyauthoritativeasingleoriginalwhicshdi
bprdepositedin the archivof the Governmentof the United Kigdom of
GreatBritainand NorthernIreland, whichshalttransmatcertifiedtruecopy
toeach signatoryand accedingGovernment.
For the Governmentof Belgium:
(Signed)J.DE TMER
For the Govemment ofDenmark :
(Sigricd)NiIs SVENN~NGSEN
Forthe Government ofFrance:
(Signedl Gde COURCEL
For theGovernrnentof theFederalRepublicof Germany:
(Signedl HassoVON ETZDORP
FortheGoternment of Ireland:
(Signedl Sekn F. LEMASS
For the GovernmentofItaly:
(Signed)P.Q~ARoNI
For the Governmentof Luxembourg:
(Signed)A. J. CLASEN
For the Governmentofthe Netherlands:
(Signedl C. WVAN BQETZELAER
For the Governmentof Portugal:
(Sjgned} WumbertoALVES MORGADO
For the Governmentof Spain:
(Signed) SANTACRUZ
For theGovernmentof Sweden:
(SigrzedGunnar HAGGLOF
For the Governmentofthe UnitedKingdomof GreatBritain
andNorthern IreIand:
(Signed)R. A.BUTLER COMMONREJOINDEROF DENMARK AND THE IEETM3lLANDS 541
EXCHANGE OF NOTES BETWEE NHE ROYAL DANISH EMBASS YT BONN AND
THE GERMAM NINISTR YE FOREIG &NPAIRS,
DATED 30 NOVEMBE 1967
Konigiich Danische Botschaft
Bonn, den 30.Novemkr 1967.
Ich hahe die Ehre, den Empfang JhrerNote vom 30. November 1967 zu
ktiitigen, die folgende WortIaut hat:
"Ich habedieEh, Ihnen im Namen der Regierungder BundesrepubWc
Deutschland folgendes mitniteilen:
Die Bundesregierung hat davon Kenntnis genommen, dass in Aus-
fühning desdanischenGesetzm Nr. 195vom 26. Mai 1965 mit Wirkung
vom 1. Juli 1967 eine Fischereizone vor dem K$tenmeer des Konig-
reichs Danemark errichtet wurde. Dies geschahinUbereinstimmmg mit
dem Europaischen Fischerei-'Ubereink dasmmvon,unseren beiden
Regierungen am 9. Man 1964in London untermichnet wurde.
Bei den Besprechungen, die am 22. und 23. August d.J. zwischen
Vertreternunserer beiden Regierungen stattgefunden haben,wurde Ein-
verstiindnis dariber erzielt, deine deutsche traditioq-le Fischerim
Sime der Artikel 3 und4 des oben erwahnten Fischerei-Ubereinkommens
in folgendem Urnfang vor den danischenKüsten besteht:
. .. .. .* .. .. .. A.
Die deutsche traditionelle Fischerei kann in dem oben bezeichneten
Umfang in Anwendung des Artikels 9 Abs. 1 des Londoner Fischerei-
Ubereinkommens im Gebiet zwischen3 3d 6Seemeilenvon der Basislinie
bis mm 1. Juli 1968fortgesetztwerden.Nach Ablauf diesesTages wird
diese traditionelle Fischerei in dern Gebiet zwischen 6 12dSeemeïlen
von der Basislinieweiterhinerlaubt sein.
Ais südliche Grenze der danischen Fischereizone soli vorlaufig die
jenigeLinie dienen, die in dem Vertragvorn9. Juni 1965 zwischenunseren
beiden Staaten über die Abgrenzung des FestlandsockelsderNordsee in
Küstennahe vereinbart wurde, Die Wahl dieser Grendinie beniht nicht
auf mhclichen Überlegungen, sondern sol1 ,nur zur Erleichtening der
fischercipolizeilichen ukrwachung für eine Ubergangszeit dienen. Die
endgültige FFescgung der südlichen Grenze der danisçhen Fischereizone
in der Nordsee wird spater durch eine Vereinbarung zwischen den beid~n
Regieningen erfolgen.
Ich erlaubemir vorzuschlagen, dass diesNote und die entsprechende
Antwortnote Euer Exzellenz eine Vereinbarungzwischenunseren beiden
Regierungen bilden solIen, die mit dem Datum Ihrer Antwortnote in
Kraft tritt und auch füdas Land Berlin gilt, sofern nicht die Regierung
der Bundesrepublik Deutschland gegenuber der Regiemng des Konimichs
Danemark innerhalb von drei Monaten nachInkrafttreten dieseVerein-
bmng eine gegenteiligeErkliirung abgibt."542 NORTH SEA CONTINENTAL.SHELF
Ich ha& dieEhre lhnenmitzuteilen,dassmeine~egiekng mit dernlnhalt
dieserNote unddamit einverstandenist, dassIhNote unddiese Antwortnote
eineVereinbarung zwischen unserenbejdenRegieriingen bilden soll, die ait
dentDatum dieser Note inKrafttritt.
GenehrnigenSie, Herr Minister,dieVersicherungrneinerausgezeichnesten
Hochachtung.
KNUTH-WINTERFELDT.
SeinerExzellenz
demBundesministerdes Auawàrtigender Bundesrepublik DeutschIand
Hem WillyBrandt. COMMON REJOINDER OF DENMARK AND THE NfTUERLANDS 543
(Translation)
Royal Danish Embassy
Bonn, 30 November 1967.
Your Excellency,
I have the honour to acknowledge the receipt of your Note of 30 November
1967, reading as follows:
"On behalf of thc Government of the Federal Republic 1 have the
honour to inform you as follows:
The Government of the Federal Repubiic has ben inforrned that a
fishing zone in the coastal waters of the Kingdom of Denmark has been
establishedasfrom 1 July 1967 pursuant to the Danish Act No. 195 of
26 May 1965.This took place inconformity with the Eriropean Fisheries
Convention signedin London by our two Governments on 9 March 1964.
During taiks between the representatives of our two Governments on
22 and 23 August this year, agreement was reached that pursuant to
Articles 3 and 4 of the above-mentioned Fisheries Convention thereisa
traditional Geman fisheryalong the Danish coast as follows:
.............. I
Within the limits outlined above, the Gerrnan traditional Fishingmay,
pursuant toArticIc 9, paragraph 1,of the London Fisheries Convention
be aliowed to continue in the arm ktween 3 and 6 nautical miles from
the baseline until 1 July1958A.fter chat date the tladitional fishing may
stillcontinue in anareabetween 6 and 12nautical milesfrom the baseline.
The boundary between our two States agreed upon inthe Tr~ty of
9 June 1965 concerning the delimitation of the continental shelf of the
North Sea in the costal areas constitutes the temgorary southern border
of the Danish fishing zone. This choice of borderlineisnot based upon
legal considerations but servesmerelyto facilitate fishing inspecaiothe
present time.A finaldetermination ofthe southern borderline of the Danish
fishingzonein the North Sea will take place later through agreement be-
tween the two Governmcnts.
I beg to propose that this Note and Your ExwTlency'sNote of reply
shall enter intaforceas an agreement between our two Governments as
from the date of your Note of reply and shall also appIy to Land Berlin
provided that thc Covernment of the Fcderal Republic of Gcrmany has
not made a contrary declaration to the Government of thc Kingdom of
Denmark within three months of the date of entry into force of thngree-
ment."
I have the honour to inform you that rny Government is in agreement with
the contentsof this Note and with the firoposal that your Note and this Note
of reply shall constitute agreement berneen our two Governments entering
into forceas from the dateof this Note.
Accept, Your Excellency,the assurancesof mylhighest consideration.
(S~~~~~)IKNUTH-WIN~ERFELDT.
Hjs Excellency
Minister forForeign Affairsof the Federal ~epublicIof Germany
Mr. Willy Brandt.544 NORTH Si34CONTINENTALSHELF
Annex3
Die deutsche Regiemng ist davon unterrichtet, dass der diiscFischerei-
minister eine Bekanntmachung nach $ 38 Abs. 4 des dhisçhen Fischerei-
gesetzes Nr. 195vom 26. hlai 1965erlassen hat, die die Absatze 2 und 3 des
§ 1 des danischen Fischereigesetzes mit Wirkungvom 1. Juli 1967 in Kraft
setzt. Hier ist bekannt, dass naAbsatz 7 des 8 1 des danischen Fischerei-
gesetzes Sondemgelungen mit fremden Staaten getroffen werden konnen, die
diese weiterhininbestimmten Gebieten der erweiterten dhiçchen Fischerei-
zone (12 sm) zur Ausübuundges Fischfangs berechtigen.
Die Bundesrepublik Deutschland und Danemark gehoren zu den Unter-
zeichnerstaaten des Londoner Fischereiükreinkommens am 9. Marz 1964.
Beide Staaten habcn auch das ProtokolIüber die vorlaufigeAnwendungdes
Ubereinkom-ns unterzeichnet. Für die BundesrepublikDeutschland ist zwar
zur Zeit das Ubereinkornmen noch nicht in Kraft getreten, mit der Hinter-
legung der deutschen Ratiîïkationsurkunde kann aber noch im Laufe dieses
Sommers, evtl. nochvordem 1. Juli1967gerechnet werden.Die Verzogerung
des Zustimmungsverfahrens istnur aus rein technischen Gründen eingetreten.
Die Bundesrepublik Deutschland ktrachtet sich schon heuran die Bestim-
mungen des Londoner Fischereiübereinkommens vom 9.3.1964 gebunden.
Aus diesem Grunde hat sie auchkeineEinwendungen gegen die Schaffung da
in dem Fischereiübereinkommen naher bezeichneten Fisçhereiregimes durch
Danemark erhoben (5 1 des danischen Fischereigesetzes). deutschcRegie-
rung reclmet andererseitsdamit, dass die diinische Regierung bereits bei der
Vurbereitung der einschlagigcn Durchführungsverordnungendie deutschen
historischen Fischereirechvor der danischen Nordseeküste, deren Gewahr-
leistung die Konvention vorsieht, gcbührendberücksichtigen wird.
Kopenhagen, den 16. Marz 1967. COMMON REJOINDER OF DENMARK AND THE NETHERLANDS 545
The Government of the Federal Republic of Germany has been notified
that the Danish Minister of Fisheries has issued a Decrec in pursuance of
Clause 38,paragraph 4, ofthe Danish FisheriesAct (No. 195of 26May 1965)
under which paragraphs 2 and 3 of Clause1 of the Danish Fisheries Act shall
take force as from1July 1967.The Fedcral Government is aware that in pur-
suance of Clause 1, paragaph 7, of the Danish Fisheries Act, speciaagee
ments may be concluded with fmeign States permitting their continued fishing
in certain areas within the extended Danish frshingzo(12 nautical miles).
The Federal Republic of Germany and Denmack areamong the signatories
to the EuropeanFisheries Convention of 9March 1964.Both States have also
signed the Protocol concerning the provisional application of the Convention.
Although the Convention jsnot,as yet, in force towards the Federal Republic
of Germany, it is expected that the Federal Republic's instrument of ratifica-
tion wjll be deposited during this surnmer, possibly before 1 July 1967. The
delay inthe ratification procedureis due to purely technireasans.
Already today, the Federal Republic of Germany considers herself bound
by thc provisions of the European Fishesies Convention of 9 March 1964.
ln conscquence hereof the Federal Republic of Germany has raised noobjec-
tionsto the introduction by Denmark of the fishing regime as defined in the
Fisheries Convention (the Danish Fisheries Act, Clause 1). On the othnnd,
the Government of the Federal Republic expects that already when drawhg
up orders of implementaiion, the Danish Government wilI duly consider the
histoxicalfishingrights of the Federal Repuboffthe Danish Worth Sea Coast
in respectof which the Convention foresees guarantees.
Copcnhagen, 16 March 1967. NORTHSEA CONTINENTAL SHELE
NOTE FROM THEPRESIDEN OTFTHE BELCIAD NELEGATI FORNTHE DELI~UTATION
OF THE CONTINENTSA HLEL FETWEEN BELGKJ MND THE WETHERLAN DOTHE
ESI IDE NTF THENETMERLAN DESLEGATION
DATED 8 DECEMBER 1967
Bruxelles, le 8 dicembre 1967
Monsieur le Président,
J'ai l'honneur d'accuIarkeption delaIettre par laquevousme deman-
dez s'il a objection iceque le Gouvernemeritnterlandais communique B
la Cour internationale de JustIaposition prise en matikre de dilimitation
du plateau continental entre la Belgiqueet les Pays-Bas.
11n'y a aucune objectioà ceque vous fassiez connaitre a cette bminente
institution quleGouvernement belge a déposé devantles Chambres légis-
lativeun projet de loi comportant notammeun article 42 conçu dans Ies
termes suivants :
"La drilhitationdu plateau continental vis-&-visdes pays dont les
cotessont adjacentes aux cotes belges,c'est-&-direla France et lesPays-Bas,
estdéterminéepar appIication du principe de la Iigne medianetous
les points sont tquidistantsdes pleplus proches des lignes de base 9.
partir desquelles est mesutalargeur de la mer territoriachacune
des puissanceint&ressées.ettedélimitationpeut êtamenagrk parun
accord particulier avec la Puissanoeintkressée."
Ce projet de lon'apas encore reçu l'approbation du Parlement. Toutefois
desnégociationsont dkjk eu lieu entre Ia Belgiqueet lesPays-Bas et ontabouti
Aun accord de principe, qui ne pourra êtresignéque lorsque le Parlement
aura approuvéla loi qui affirmele principe des droits de la Belgiqueet permet
Ia conclusion &unaccordparticulier.
Cet accord, non encorsime, porte sur la délimitation concrètedu plateau
continental. Conformémentaux dispasitions contenudans le projede loi
belgeil affirmele principe laligne médianedont tous les points sont Bqui-
distants des points les plus proches des lignes de base à partir desquelles est
mesuréela largeur de lmerterritoriale des deux pays.
Sur cette base, l'accord consacrera que la délimitation sera tracéepar les
arcsde grand cercle entre Ies points suivants:
1) 51"48'18"N 2" 28' 540
2)51" 39'41" Z045'40"
A Monsieur leProfesseurRiphagen,
Présidentde la délégationnkrlandaise
pour la délimitation du plateau
continental entre Ia BeIgiqueet
IesPays-Bas. COMMONRWOINDER OF DENMARK AND THE NETHERLANDS 547
IIn'y a aucune objectionà ce que votre Gouvernement fasseconnaîtrela
teneurde Ia présentelettre la Cour internationalede Justicnajoutant que
la position du Gouvernementde Bruxelles estcommuniqute sous réservede
l'approbation du Parlementbelge.
Je vous prie d'agrker, MonsiculePrésident, l'assurancedma haute con-
sidération.
Le Présidentdela dklégationbeIgc,NORTH SEA CONTINENTAL SHELF
Appendix1 toAnnex4 COMMON REIOINDEROF DENMARK AND THE NETHERLANDS 549
Ministry of Foreign Affairs
and Commerce.
Brussels, 8 kmber 1967.
Mr. Presjdent,
1have the homur to acknowledgereceipt of the letter in whichyou asked me
if there were any objections to letting the Netherlands Governmencommuni-
cate to the International Court of Justice the position taken regarding the
dclimitation of the continental shelf between Belgiumand the Netherlands.
There is no objection toyour letting this eminent institution know that the
Government af Belgium has deposited with the legislative chambers a Bill
containing, inter diaanArticle 2, paragraph 2, worded as follows:
"The delirrsitation of the continental shelf vis-à-vis countries whose
coasts are:djacent to the Belgian wasts, that isto sayFrance and the
Netherlands shall be determined by application ofthe principle ofequi-
distancefrom thenearest pointsof the basclinesfrom whichthe breadthof
the territorial sea of each of the Powers concerned is measured. This
delimitationmay be adjusted by a special agreement with the Power
concerned."
This Bill has not yeken passed by Parliament. Negotiations have neverthe-
les$already taken place between Belgium and thc Netherlands resulting in an
agreement in principle, which cannot bzsigneduntil Parliament has passedthe
Bill confirming the principle of the rights of BeIgium and permitting the con-
clusion of a specificagreement.
This agreement, as yet unsigned, concernsthe actual delimitation of the
continental shelf. Iconformity with the provisions contained in the Belgian
Bill, the apeement confirms the principle of the medianline, every point of
which isequidistant from the nearest points of the baselines from which the
breadth of the territorisea of the two Statesismeasured.
On this basis, thc agreement will lay down that the line of delimitation shall
be drawn by means of arcs of greatcirclcs between the following points:
Professor Riphagen,
President of the Netherlands Delegation
for the Delimitation of the Continental Shelf
between Belgium and the Netherlands.550 NORTH SEA CONTINENTALSHELF
(5)51" 31'23" 3" 04'13"
(6)51"28' 23" 3"12'08"
(7)51" 27'14"
3"13' 25"
(8)51"ZA' 40" 3" 17'53"
Thcreis no objection tlettinyourGovernment make the contentaofthis
letterknown totheInternationaCourt of Justice,atthe sametirnaddingthat
the position of the Goventment ofBrussels,now communicated toyou, is
subjecttoapprovalby the BelgianParliament.
Pleaseaccept,Sir, thassuranceof my highestconsideration,
The Presidentofthe Bdgian
Delegation. COMMONRWQINDER OF DENMARK AND THE NETHERLANDS 551
Annex5
Overenskornmelsemellan Svenge och Norge om avgransning
av kontinentalsockeln:
Regeringen i Konungariket Sverigcoch regeringen i Konungariket Norge,
sorn beslutat att faststalla granslinjen mcllan de omrip5ekontinental-
smkeln over vilka Sverige respektive Norge ut~var suverana rattighetei
frkga om utforskande och tillgodogoranda av naturtIllgAngar,
har enats om foljande:
Artikel 1
Granslinjen mellan de ornraden av kontinentalsockeln Gvervilka Svenge
respektive Norgc utovarsuverana rattigheter i friom utforskande och till-
godogorande av naturtillgangar skall i princip vaen mittlinje, sor5iSA
bestamd att varje punkt pA denna befinner sig pa lika stort avstiind frAnde
namaste punkterna pi de baslinjer frh vilka breddepa Sverigesrespektive
Norges territorialhav raknas.
Artikel 2
J 6verensstammelserned den i artikel 1 bestamda principen men med vissa
awikelser for attuppnften praktisk och andamilsenlig strackning av grans-
linjen skall denna dragas mellan foljande fem punkter:
1. Den ~astligaste punktenpS.den yttre grinsen for Sveriges sjotercitorium
mot Norge. Punkten har f~ljandekoordinater:
58"54' 50,2"N, 10"45' 28,Xa0.
2. Den punkt dar granslinjen enligt den internationella skiljedomen den 23 ~k-
tokr 1909angaende faststkllandctav en del av sjogransenmellan Sverige
och Norge trgffar den yttre gransen for Norges sjiiterritorium draPAn
ett avstiadav en geografiskmil (7420 meter) frkn den norska baslinjen,
sadan denna beûtamts i. Kgl. resolusjon 18.juli 1952 om fiskerigrensen
syd for Traena (Norsk Lavtidend,1952,2. avd., side 82flg)Punkten har
foljande koordinater:
58"53' 34,O " , 1038' 25,O"0.
3. Skanngspunkten mellan en linje dragenpi ett avsthnd av 12 nautiskamil
frkn namnda norska baslinje och en linje dragp% ett avst&ndav 12nau-
tiska mil fran den svenska baslinjcn, sadan denna bestimts i Kungl. kung6-
relsen den 3 juni 1966 rned narmare bestammdser om berakningen af
Sveriges sjoterritoriurn (Svenfür/àirilingssnm lin37at.nPunktlinhar
foljande kaordinater:
58"45'41,3" N, 10"35' 40,O"0.
4. Punkten har foljande koordinater :
58" 3Q'41,2"N, 10"08' 46,9 ".
5. Punkten har foljande koordinater:
58"15' 41,2"N, 10"01'48,l" 0.552 NORTH SEA CONTINENTAL SHELF
Positionernafor ovnnniirnndafem punkter har definierats i f6rhAllandetill
European Datum (Forsta utjamning, 1950).
Granslinjen dwges rnellan punkterna 1,2och 3 sorn rata linjer (kompass-
linjer) och mellan punkterna 3, 4 o5 sornstorcirkelb&par.
Artikel 3
Positionerna for de i artikel2 definierade punkt1-5frarngir av bifogade
sjokort (norskt sj~kort n305) p,&vilket ocksiiinlagts den i samma artikel
bestamda granslinjen.
Artikel 4
Om naturtiilggngar pft havsbottnen eller i dennas underlag stracker sig p%
omse sidor ornden iartikel2bestamdn granslinjen ochdenaturtillgangarsom
hns pAden ena statens ornrade av kontinentalsockeln helt eller kanvut-
vinnas frân den andra statens ornrade skall pAendera statens begaran de bhda
staterna soka overenskomma om hirr dessanaturtillghgar mest effektivt skall
utnyttjas och hur avkastningen skall fordelas.
~verenskornmelsen skall ratificeras ocrati6kationsinstru umexltsen
i Oslo.
6verenskomrnelsen trader i kraft den dag ratifikationsinstrumutvaxIas.
Som skedde i Stockholm den 24. juli 1468itvft exemplar ph svenska oçh
norska spraken, vilka bada texter ager lika vitsord.
For regeringen i For regeringeni
Konungariket Sverige Konungariket Norge
Henrik BROCH COMXfOh!REJOINDEROF DENMARKAND THE NETHERLANDS
Appendix 1 to Annex 5
The boundory Iine and Ihe
equidislance bine have besn dcain
in occordonce wiih the inf~rrnotion
avoiloble and the chart is no1 O
reproduction of th0 originol chort
meritioned in Article 3 of the
Norwagiun-S*edlih
Equidlaioncihnéory554 NORTH SEA CONTINENTAL SHELF
The Government of the Kingdom of Sweden and the Government of the
Kingdom of Norway :
Desiring to establish their cornmon boundary between the areofthe con-
tinental shelf over which the Kingdom of Sweden and the Kingdom of
Norway respectivelyexercisesovereign rights for the purpose of exploration
and exploitation of the natwral resources:
Have agreedas follows:
Articlel
The boundary line between that part of the continental shelf over which
Swedenand that part overwhich Norway respectivelyexercisesoverejgn rights
for the purpose of exploration and exploitation of the natural resources shall
in principlbea line whichat everypoint isequidistant from the nearest points
of the baselines from which the territorial seof Sweden and Norway Is
measured.
Article2
Zn conformity with the principlesetforth inArticle 1, the boundary line
shall, with certain minor divergenciesfor practical purposesabline drawn
through the followingfive points:
1. The westernmost point of the outer boundary of tseaterritory oSweden
towards Norway. This point has the following CO-ordinates:
58"54' 50,2" N,10" 45'28,l"E.
2. The point of intersection between the boundary line in conformity with the
kward of 23 October 1909concerning the delimitationof part ofthe sea
boundary bctweenSweden and Norway and the outer boundary of the sea
territory of Norway drawn at a distance of one geographical miIe (7420
rnetres)frorn the Norwegian baselinas Iaid down in Royal Resolutionof
18July 1952onthe fisheryzoneboundary south of Traena (Norsk Lovlidend,
1952,Part 2, pp. 824 eseg).The CO-ordinatesare:
58" 53'34,O " ,10"38' 25,O"E.
3, The point of intersection htweenaline drawn ata distance of 12 nautical
miles from the aforementioned Norwegian baseline and a line drawn ata
distance of 12 nauticamiles from the Swedish baseline as laiddown in
Royal Proclamation of 3 June 1966relating to the delimitation of the sea
territory of Sweden (Svensk F6rfattningssam Nlo.375). This point has
the foIlowingco-ordinates:
58" 45'41,3"N, 10"35' 40,O"E.
4. This point has the following CO-ordinates:
58"30'41,2" N, 10" 08'46,9 E".
5. This point has the foIlowingCO-ordinates:
58" 15'41,2"N, 10" 01'48,l"E. COMMONREJOINDEROF DENMARK AND THE NETHERLANDS 555
The positions of the fiveabove-mentioned points are defined by latitude and
longitudeon European Daturn (1st Adjustment 1950).
The boundary line between points1,2 and 3 shall be drawn as strailines
(compass lines)and between points 3, 4 an5 as arcsof great circles.
ArticIe3
The positions of points1-5as defined inArticle 2 and the boundary line
have been drawn on the chart annexed to this Agreement (Nonvegian Chart
No. 305).
Article4
If natural resourceson the seabed or in its subsoilextend across the boundary
linc as definedinArticle 2 and natresourcessituated in tma of one State
are exploitable, rvholly or in part, froareaeof the other State, the States
shall, at the request of either State, sereach agreement as to how these
natural resources shalx most effextivelyexploited anhow the proceedsde-
riving therefrom shall be apportioned.
Article 5
This Agreement shall be ratified. Instruments of ratification shallex-
çhanged at Oslo asmon as possible.
TheAgreement shall enter intoforce on the date of the exchangeofinstru-
mentsof ratification.
Done in duplicateatStockholm the 24th of July 1968in the Swedish and
Norwegian languages, both texts king equally authoritative.
For the Government of
For the Govcrnment of
the Kingdom of Sweden the Kingdom of Norway
(Si~ned)TorstenNILSON. {Signed) Henrik BROCH. DECRE EY mE PRESID~U MF THE U.S.S.R. HtGHEsT SOVIE TN
RIE CONTINENTSA HLELFOP THE U.S.S.R.
(6 Februari1968)
YKA3 nPE3HRWYM# , EPXOBHOTO COHETA CCCP *
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HIIi~ 14, K~)TOptdtH tin.~i;'c~xau~~A. HPOH~~IC III~H TOYKH Sf~6'iilll~I~~\IHII.T
~nr~*riip;13BHTIiH .ïuh 1lpH~pCll.lpHhl K Mril>rKtiU~ ntiy n.7n tin.1iiiiw.'.ii16n
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'11'Iitlll.lLihlllllilOPTi4IiHJMi)B.FiH.lRK)UIHiIcIWTt'CTHCHHMllH f)nra~c'~~;l\tH
hiiiirnnrnTa.ibHurii uirn4a CCCP, yteepx.tirrcn ,5lli~~i.r~p~~rno putifi~rir(r
AU iniiç~na (:CCP n iin)6.wwon~ia~rea ~iw icmriiqrili ~+W.I~IEHH
Ap~m~ina îbpsnaayu &PIL).#IPO h a CCCP 51.IICIATOPWUA.
krpfipi ne~vnmyro 3rl-O hti CCCP M. rEOPFAA3E. COMMONREJOINDER OF DENMARKAMI2THE NETEERLANDS
Annex 6 A
The Presidium of the Highest Soviet of the U.S.S.decrees:
1, The U.S.S.R s.all exercise sovereign rights over the continental shelf
adjacent to theoutward boundary of the territorial sea of the U.S.S.R. for the
purposesof exploring and exploiting inatural resources.
The continental sheloff theU.S.S. shall be the seakd and siibsoil of the
submarine areasadjacent to theCoastor to islands of the U.S.S.R., but outside
the area of the territorial toaa depth of 200 metres or, beyond that limit,
to where the depth of the superjacent waters admits of the exploitation of the
naturalxesources ofthese areas.
The seabed and subsoil of depressions situainthe continuous mas ofthe
continental shelf of the U.S.S.R., irrespective of their depth,bepart of
the continental shelf of tU.S.S.R.
2. Tn those instanceswhen it is adjacent to the shelf of 0thStates the
boundary of the continental shelf of the U.S.S.R s.aIl be determinecl by
agreements with those States. In tabsence of such agreements and unlessa
different boundarlyineisjustified by special circumstances:
(a) the median lineevery point of which is equidistant fromnearestpoints
of the baselinefrom which the breadth of the territorseais measured,
shdl serve asthe boundary of the continental shelf of tU.S.S.R w.ith
States whose coastsare opposite the coasts of the U.S.S,R. ;
(bl the houndary of the continental shelf of the U.S.S.R. watState whose
sheIfis adjacent shall be determined by application of the principle of
equidistance from the nmrest points of those baselines from which the
breadth of the territorial sea ofU.S.S. Rnd the corresponding State
is measured.
3. The natural restiurcesof the continental shelf bein the Stateowner-
ship of the U.S.S.R. Exploration and exploitation ofthese resourceaswell
asany rescarch On the continental shelf, shali be carriedoon the basis of
prevailing legislation of the U.S.S.R. and union republics.
The natural resources of the continental shconsist of mineraland other
non-living resources of the seabed and subsoilas well as living organisms
belonging to sedentary species, that is, organisms which, at the hamestable
stage, eitheareImmobile on or underthe seabed orare unableto move except
in constant physical contact with the seaordthe subsoil. A kt of speciof
livingorganisrnswhich arenatural resourçesof the continental shelf of the558 NORTH SEACONTINENTALSHELP
U.S.S.R.shallbeapprovedbythe Ministryof FisherieoftheU.S.S. an.d
shdi be publishedfor general information.
W . . . . - . . . , . . . . . .
Chairman ofthe Presidiuofthe
Highest Sovietfthe U.S,S.R.
N. PODGORWI.
Secretaryof the Presidiumof the
Highest Sovieofthe U.S.S.R.
M. GEORGADZE.
Mosww, theKremlin,6 February1568.
(Source:VeabmostiverkhovnogosovetaS.S.SR.. (Gazettofthe Highest
Sovietof thU.S.S.RN .),6,item 40 (1968)j.1 COMMONREJOINDER OFDENMARK AND THE NETHERLANDS 559
ITALY-Y~GOSLA AGIRE: EMEONNDELIMITAR OFTHE CONTINENT SHLELF*
Done atRome, January 8, 19681
AGREEMENT
BETWEENITALY AND YUGOSLAViA COWCERNING THE DELihfiTATION OFTHE CON-
TINENTALSHELFBETWEEN THE TWO COUNTRIES
The Government of the Italian Repuband the Governmentof the Socialist
Federal RepubIicof Yugoslavia,
'Desiring to esiaMish the line of delimitation between theu respective parts
of the continental shelf,
Have agreedas follows:
Article1
The line of delirnitation of the continental shelf between the Contracting
Partiesisestablished by circular arcsbetweencertain points, definedby latitude
and longitudewhiçh are listed in the final paragofthis Article.
Thesc coordinates have ken plotted on Italian nauticanumber1.1.170,
scaIe1 : 750,000 (issued Februaq 1964), updated through iNo.e20 (1966)
of the "AvvisoaiNaviganti," motice to Mariners] and on YugosIavnautical
chartsissued by thHydrographie Institute of the Yugoslav Ratna Mornarica,
scale1 : 750,000, number 101 (issued February 1963)and number 102 (isaued
Decemkr 1952)both updated through June 1966.
The points and the line of delimitation have been drawn on rnapsidentical
tothose cited above, copies of which are atttohthe present Agreement.
The Contracting Partieagreethat, for the present,the delimitationotill
extendbeyond point 43.
The coordinates referrCO inparagraph 1 OFthjsArticle are as follows:
Poinis Ifdian courdinares YugosInvcoorditiatcs
onchart niimber170 on charrnurnber101
01 45" 27' .2 N 45"27' -2 N
13" 1Y.7 E 13"12'.9 E
02 45"25' .9 45"25' .5
13"11'.4 13"11' .1
03 45"20' .1 45" 20'.1
13" 06'.1 13"OB'.O
04 45"16' .fi 45" 16'.8
13"03' .8 13"03' .8
05 45"12' .3 45"12' .3
13"01' .2 13"01' .1
*Translated by the Editoof InternationLegal MaleriaIfrom the Italian
tcxt provided bythe ItaEmbassyinWashington,D.C.
As ofApril 30, 1968,the agreementhnot yet entered iforce.NORTH SEA CONTLNENTAL SHELF
44"17' .7
13"27' .8
44"12' .7
13"38' .1
44"10' .7
13"40' .3
44" 00'.7
14" 01'-2
43" 57'.7
14" 04'.9
43" 54'.3
14" 10'-2
43"43' .O
14"21' .4
43"40' .2
14"23' .8
43"38' .6
14" 24'.9
43"35' .9
14"26' ,4
43"32' .2
14"30' .1
43" 30' .1
14"31' -9
43"25' .4
14" 35'.6
43"12'.7
14"46' -3
43"IO' .3
14"48' .1 COMMON RElOINDER OF DENMARK AND THE NETHERLANDS 561
Points Italien coordinates Yug~sFav coodinafes
onchartnurnber 170 on charanumber101
43"03' -8 43"03' .7
14"54' .5 14" 55' .1
43"00' .8 43"00' .9
14"57' .9 14' 58'.O
42" 59'.2 42" 59'.3
15"Ob' .7 15"00' .8
42" 47'.9 42"47' .7
15"09' .5 15"09".7
42"36' .8 42"36' .7
15"21' .8 15" 22'.O
42" 29'.5 42" 29'.6
15"44' .8 15" 45' .O
It is located 12 miles from the lighthouse on the Island of
Pelagora on a 103"bearing of said lighthouse Grue bearing
taken at sa).
The line of delimitation from point 34 to point 35 foIlowsthe
circle oa 12-mileradius from the lighthouse on the Island of
Pelagosa.
It islocated 12 milesfrom the lighthouse on the Island of
Pelagosa on astraight line running from the lighthouse on the
Island of Pelagosatothe lighthouse of Vieste.
The line of delimitation from point topoint 36 ~Q~~OWSthe
circleofa 12-mileradius from the lsland of CaioIa.
Itis locared 12 miles from the Island of Caiola on a straight
line running Frornthe Island of Pelagoto point 37.
42"16'.O 42" 15'.9
16" 37'.1 16" 37'.3
42"07' .O 42"07' .O
16" 56'.8 16" 56' -7
41" 59' .5 41" 59'.4
17"13' .O 17" 13'.1
41"54' .8 41"54' .6 N.B. These coordinates also
17" 18'.7 17"19' .Oappear on chart number 102.
41"50' .2 41"49' .9
17"37' .O 17"37' .4
41" 38'.5 41"38' .1
18" 00'.O 18" 00' .O
41" 30' .O 41"30' .O
18' 13'.O 18"12'.9
Article 2
Intheevent that natural resources of the seabed or beneath the seabed extend
from the line of delimitation to both sides of the continentalsohthat the
resourceson the continental sheif of one of the Contracting Parcm,sin al1
or in part,k exploitedfrom the continental shelf belongîtothe other Con-562 NORTH SEA CONTINEWTAL SHELF
trading Party, the competent Authoritieof the Contracting Parties wimeet
with theintentof reachinganagreement to determine the manner inwhich said
resources wilbe exploited, &ter having first consulted with the holders of any
concessions in thaarea.
Tf a dispute anses over the position of anyinstallation or equipment in
reference to the line of delimitation defined in A1tof this Agreement, the
competent Authoritics of the Contracting Parties shall determine, by mutual
consent, in which part of the continental shelf suchinstallations or equipment
are located.
Article
The present Agreement does not affectthe juridical status of tseas and
air spaceabove the continental shelf.
Article 5
The present Agreement shall be ratified according to the constitutional
processesof the Contracting Parties and shall enter into forceon the date
of the exchangeof instrumentsofratification, which willtakeplace in Belgrade
as soon as possible.
Done in Rome, January 8,1968i, n two copies, each in Italian and Serbo-
Croation, both texts being equallyauthentic.
For the Govemment OF the
Italian Republic
(FANFANI)
For theGovemment ofthe
Socialist FederalRepublic ofYugoslavia
WIKEZI~) COMMON REJOINDER OF DENMARK AND THE NETMERLANDS 563
,,,,,,,,., Aqreed Line of Delimitation
- Line of delimitation applyinq
the 1958 Geneva Convention
ARRIATIC SEA
Scale 1 : 2,000,000 564 NORTH SEA CONTINENTAL SHELF
,- Agreed Line of Delimitation
-,, Line of delimitation taking lnto
account the Island of Lissa
---- Line of delimitation plotted
from the Island of Busi
Scale 1: 750,000- -.
ÇOMMON REJOlNDER OF DENMARK AND THE NETHERCANDS 565
ADRIATIC SEA
Scale 1: 3,000,000
- Agreed '~ine of
Del imitat ion NORTH SEA CONTINENTAL SHELF
Annex 8
THE COMMONWEAL OTHAUSTRALIA
Under point 14of the Annexto the RepIy(pp. 440-449,alpro) the Federal Re-
public reproduced the full text of the Second Scheduleto the Australian Petro-
leum (Submerged Lands) Act 1967.The said Schedule delimitscertainareas of
the Australian territorial waters and of superjacent watersof the Austcon-an
tinental shelf (taking these two categories of waters together) and specifies
each of these areas tEK administered bya particular State or Territory of the
Commonwealth,
Apparently the Federal Republic attaches much importance to the delimita-
tion of these areas.It giveson a full eight pages of the Reply, an irnpressive
list of geogaphical points, defined by CO-ordinates,and without adducing
anyreasoning or illustration jumps to the twofold conclusion:
(a) that the delimitation of the areas, as berweenindividual Australian States
the individual States oafederation" (Reply,p. 440,supra; italics added);
and
(b) that the boundary lines "difler Iargelyfrom equidistance(ibid).
Denmark and the Netherlands draw attention, in the following paragraphs,
to different aspects of the "example" adduced by the Reply. The map re
produced as figureÇ on pagc 499, supra, together with someother maps, giving
details of separate areas, had ben prepared by the Division of National
Mapping of the Commonwealth Ministq for National Development and be-
longed to the material made available to Parliament forthe occasion of the
second reading of the Petroleum (Submerged Lands) Bill.
A. Interna1Ddirnilatiuns
Fjrstly attention has to be paid to the alleged example only in so asthe
Scheduleto the Australian Actfixe ifernalboundaries, i.e.,boundaries between
maritime areas alloredto thcornpopictzbparof theAustralian Commonwealth.
It has to bercrnasked that the relations between the Statmemkrs ofthe
Commonwealth of Australia, or the relations between such a member State
and th^Commonwealth, are not governed by international law. These relations
are governed by the constitutional law of the Australian Commonwealth.
Consequently, the determination of maritime boundaries ktween the Austra-
IianStates and Territories, specifiedby the Petroleum (Submerged Lands) Act
1967, cannot be held up as an "exampIen of the appIication of international
law, whatever generalinterest it may have withregard to the matter in question.
This conclusion jsçl~arlyillustrated by the fact that, also in the opinion of
the Australian Government, under international law not the member Statesor
Territories but onIy the Commonwealth has a "continental shelf" in the legal
sense of the word, i.e., certain "sovereign righover the seabed and subsoil
of submarine areas adjacent to its coasts. Already the Proclamation by the
Governor-General concerning the continental shelf dated 11 September1953
ltextin United Nations Legislarive Series,doc. STILEGISER.Bl8,p. 3) de-
clared:
"that Australia has sovereignrights over the seabed and sub-soi1of:
(a) the continental shelf contiguoto any part of its coaçts; and COMMONREJOlNDER OF DENMARK AND THE NETHERLANDS 559
Relevant part of the boundary: between a point of Latitude 8' 52' 15"
South, Longitude 133' 24' 15" East, and a point of Latitude 10' 51' South,
Longitude 139"12' 30" East.
Commentary on 1and 2: R.D. Lumb, LL.M. (Melbourne), B. Phil.(Oxon.),
Reader inLaw, University of Queensland, commenting on the "outer bound-
ariesof the adjacentareas" writes:
"However the drawing of the outer limits in the casof the northern
adjacent areas had totakeaccount of the median line principle embodied
iriArt. 6 (in footnote: texArt. 6) of the Conventionon the Continental
Shelf and therefore these limits are demar~tedinthe light of Indonesian
jurisdiction over the shelf pertaining to West Irian (footnote: 'There is
no break inthe ShelfbetweenWesternIrian and the Northern Territory.')."
("The Ofl-Shore Petroleurn Agreement and Zegislation", in 41 The
AustralianLaw Journal(29 Feb. 1968), p. 457 .)
The same author had already in 1966illuminated the situation on this part
of the shelf:
"Off the North Queensland coastline the shelf also extends across
Torres Strait to Papuan and West Irian eoastlines. The demarcation of
these continental shelf boiindaries where the physicalfeatures of adjacency
or contiguity are prwnt calls for the application of the median or equi-
distant lineprincip(in the absenceof agreement), subjecto the qualifica-
tion that the islandsstraddling Torres Strait (warepart of Queensland)
may cal1for a modification of this principle." (TheLaw of fhe Sea and
AustralianOf-shore Areas, University of Queensland Press.)
3. Papua-West Irian (adjacent coasts).
moundary description in the Reply, pp. 446 and 441.)
Relevant part of the boundary: betwen apoint oFLatitude 9" 52'30"South,
Longitude 140"30' 30"East, and the point of intersection of the outer lirnit of
the territorial waters.
4. New Guinea-West Jrian (adjacent coasts).
(Boundarydescription in the Reply, pp. 447and 448.)
Relevant part of the boundary: fxst part of the boundary from its point of
commencement on the point of intersection of the frontier between New
Guinea and West Irian and the outer limit of the territorial waters.
Commentary on 3 and 4: Reference is made to the Notes of 19 June 1967
and 18March 1968, respectively, from the Australian Department of External
Mairs to the Danish Ernbassyat Canberra reading as follows:
"The Department of External Affairs presents its compliments to the
Royal Danish Ernbassy a,d has the honour to referto the Embassy's
Note of 9th March, 1967, concerning the proceedings instituted in the
International Court of Justice for the delimitation of the continental shelf
as between the Netherlands and the Fede~al RepubIic of Germany, on
the one hand, and Denmark and the Çederal Republicof Germany on the
other.
The Ernbassy hasobserve4 that in al1 probability the proceedings will
givense to the consideration by the Court of the rules of International
Law applicable to the delimitation of the continental shelf as bctuleen
Statesthat are adjacent to one another. In this regard the Ernbassyreferred
to the provisions of Article 6(2.) of the 1958 Convention on the Con-570 NORTH SEA CONTINENTAL SHELF
tinental Shelf, and sought information as to the practice that hasbeen
foIlowedin the case of Australia.
Australia is a party to the Convention on the Continental Shelf, but
Article 6 (2.)is relevantso far as Australiiswncerned, only inrelation
to the boundary between Indonedan-adrninistered West Trian and the
AustraIianTerritary of Papua and the boundary between West Irian and
the Trust Territory ofNew Guinea.
For the purposesof proposed legislation to regulaoff-shorepetroleum
exploration and exploitationit will be necessaryto defme the continental
shelf boundaries between the abovementioned Territories and West Irian.
It is expwted that the principle of equidistance mentioned in Article 6 (2.)
of the Convention on the Continental ShelfwilIbe applied in the areas in
question.
Tn1953 boundaries were adopted in the abovementioned areas for the
purposes of the Pearl Fisheries Act. Those boundaries simplyfoIlowedthe
ljne ofextension of the land boundary. At that time, ofcourse,the Con-
vention on the Continental Shelfhad not yet heenformulated.No pearling
hm taken place in those areas for someyears and, fmm a practical stand-
point, the Pearl f isheries boundaries no longer have any significance.
Probably, however, the boundaries will be revised accordance with the
principlesofequidistanceso asto bringtheminto linewiththe conternplattd
off-shore petroIeum boundaries.
The Ernbassy also saught information on the practîoe foIlowed in the
delimitation o"sea boundaries, lakes (and) territorial waters' as between
Australia and adjacent countries. Again, this question is reIevant only in
relation to the boundaries refertodin paragaph 3 above. The proposed
Australian legislation mentioned in paragrap4 will apply to the wa-bed
beneath the territorial sea as well as to the continental sheIf strictly so-
called. Ttis expectedthat the principle of equjdistance wilIbe applied both
within and beyond territorial limits.
The Department of External Affairs avails itself of this opportunity
to renew to the Royal Danish Ernbassy the assurances of its highest
consideration.
CAiVBERRA.A.C.T.
19th June,1967."
"The Department of Externa1Affaira presents its complim~nts to the
Royal Danish Embassy and ha9 the honour to refer to the Embassy's
Note No. 42 of 13thDecember, 1967,concerning the Australian off-shore
petroleum legislation.
The principle ofeguidistance mentioned in Article 6 (2.) of the Conven-
tion on the Continental Shelfhas ken applied Far the purposeof defining
the boundaries hetween West Irian and the Territoriesof Papua and New
Guinea.
The Department of External ARairs avaiIs itself of this opportunitto
renew to the Royal Danish Ernbassy the assurances of its hightest con-
sideration.
CANBERRA. A.C.T.
18th March, 1968." COMMON RWOlNDER OF DENMARK AND THE NLTTHERLANDS
C. Equidisiance-Specid Circurnstancesin the Agreemenl Bedween
Queensland andPnpua
Papua isan Australian-administered Territory whichthe Australian Govern-
ment is developing towards self-government. Alrcady the Australian Govern-
ment has applied to the shelf delimitation between the Territory of Papua and
the nearest Australian Stare, Queensland, the standards of international law:
the equidistance principleofArticle 6 of the Geneva Convention, mtidifiedby
the special circumstancesclause.The Australian Minister forNational Dcvelop-
ment, introducing the Petroleum (SubmergedLands) Bill 1967in second reading
tothe Commonwealth Parliament, stated on 18 October 1967 (p. 1945of the
Aüsrraliun Hansard):
"While dealing with adjacent areas 1 should make brief mention of
certain agreements which have beenreached in relation to the adjacent
areas of Queensland and Papua ... Prior to the commencement of these
negotiations between the Commonwealth and the States, Queensland and
Papua had issued adjoining exploration permits with boundaries con-
forming to the boundary bctween Queensland and Papua. These perrnits
' have ben açcepted by the companies in good faith and work has been
going on in the areasconcerned. When it became necessary to consider
these boundaries from the point of view of this joint legislation it was
found that the applicatioinas berweenAusfraliaand Papua of the median
line pririciple would have resultcd in part OFone permit and something
like half of another permit whichhas heen issued by Papua being brought
under the jurisdiction of Queensland, thus resulting anreduction of the
areaof continental shelfunder the authorityof the Territory.
The Government considered that any transfer of part of these titles back
to Australia-no matter how justifiable in tems of logic-might be
misunderstood inPapua and NewGuinea, and in any casethatsuch action
would be inconsistent with the highsenseof responsibility which Australia
displays in working to bring this Territory rowards felf-government."
(Ttalicsadded.) COmON REJOINDER OFDENMARK AND THE NETHERLANDS 573
Delimitaiiontowards West-Iriaand the AruIslands.
Above and oppositeare reproduced two pieccsofBritish AdmiraltyChart No.
2759 a (Ed:Large Corrections, March1967).
boundam as definedin Schedule II of the Australian Petroleum
(Submerged Lands)Act 1967.
- -- -- - the internationalparts of the equidistline,as reconstmcted by
the Hydrographie Department,The Haye, on largestscale charts
availablc.
......... depth-contoursindicating ses6.and 100fathom. NORTH SEA CONTINENTAL SHELF
A. Iraq
On 23 November 1957 the Government of Iraq issucd an "Oficial State-
ment" (published in the Qficial Gazette No. 4069 of 27 November 1957 and
reproduced as Appendix 1 to this Annex) in which it declared that "al1 the
natural resources lying in the seabed and beneath the seabed in thesea area
seawardfrom, but contiguous to Iraq's territorial waters,arethe property of
Iraq". The area embodjed bythe Statement was however not atthe timeof the
Statement specifiedin detail.
On 10 April 1958 the Statement was folIowed by another Statement (repro-
duced asAppendix 2) in which the equidistance principle wasexplicitlmen-
tioned.
IR the same year, bya Republican Decree dated 4 November 1958 (repro-
duced asAppendix 3) lraq extended its territorid waters to 12nauticaI miles.
In order to determinepreciselythe Iraqi boundaries of the territseaaand the
continental shelf the Iraqi Government asked a Norwegian expert, Commander
Coucheron-Aamot, to measure the territorial sea and the continental shelf
area which Traqconsidered as appertaining to her.
In connection with an announcement of August 1960from the TraqMinistry
of Oil(Appendix4)theDanish EmbassyinBaghdad asked for and received with
a note of 22 August 1960 from the lraqi Forcign Ministry an official chart,
reproduced in Çhapter 2 as figure D (p. 502, supra), showjng the areasçlaimed
by Iraq based on the survey of Commander Aamot.
From the chart it can be ascertained that Iraq-which wasneither a signatory
nor had become a party tothe Geneva Convention on the Continental Sheif-
has bascd the delirnitation of its territoscaland its continental shein the
Persian Gulf on the stricapplication of fhe equidistangrinciple.
Only a base point on the Iranian coast (named L4 on the chart) has bwn
disregarded, presumably because there were some doubts whcther the base
point-a low tideelevation-could be used asa true base point. Instead a more
easterly base point(U1) was chosen for the delimitation of the shelf.
B. Kuwait
Kuwait has not concluded any agreements with her neighbours concerning
the delimitation of the continental shelf. But there isan indication of its ap-
purtenant continental shelf area in the Kuwait-Kuwait Shell Oit Concession
Agreement of 15 January 1961 which states (through CO-ordinates)"the ap-
proximate boundaries of thc seabed to which Kuwait is entitled".
Therelevant articleisreproduced in the Reply, pages 438439, supra,and the
Reply cornnicnts on the Agreement as follows:
"The dividing line followsthe general direction of the land frontier and
doesnot reflect the prinçiple of equidistance."
FirstJy,it should be noted that the "dividjng liae" in questias shown in
the chart preparcd by the Danish Hydrographie Institute (reproduced as
Appendjx 5),isa delimitation related to the adjacentState, Traq,to the opposite COMMON REJOIWDER OF DENMARK AND THE NETHERLANDS 575
State, Iran, and to the adjacent Neutral Zone. The Federal Republihowever,
only mentions the general direction othe land frontier and Denmark and the
Netherlands are not aware whether the Fedcral Republic means a continuation
of the generaldirection of the land frontier bztweenKuwait and Iraq or between
Kuwait and the NeutralZone, or both of them. However, the dividing line is
certainly not based on suçha continuation.
(1) Border Relations Kuwait-Iraq
As already stated in Chapter 2, paragaph 71, above, the northern boundary
of the Kuwait-Kuwait Shell Agreement is astrict equidistance lius itcoin-
cides with the southernterritoriawater and contii~enrashelf boundary which
Iraq hasuizilaterallyclaimed!
(2) Border Relations Kuwait-Tran
Under the Kuwait-Kuwait SheIl Agreement, the line of division towards
Iran is definitely noa continuation of the land frontier; in al1 probability
it is based oa modified equidistance line leavingout of account the following
islandsinfront ofthe Kuwait and [ranian coasts,Kubr, Qaru;Umm al Maradim,
Khark and Kharku.
(3)Border Relations Kuwait-Neutra1 Zone
Again the line of division in the Kuwait-Kuwait Shell Agreement towards
the Neutral Zone is not a continuation of the general direction of the land
frontier, whicha glance at Appendix 5 clearly shows.
Here again a modified equidistance line disregarding thesame islands as
mentioned under (2) infineseems to haveken the basis for the ùrawingofthe
line.
C. Saudi Arabia-Bahrein
See paragraph70 in Chapter 2 above. WORTH SEA CONTINENTAL SHELF
AppendixI to Annex 9
The Government of Iraq being most desirous te cxploit the natural resourçeç
of Iraqto the utmost possible limit,and becauseof its beliefthataconsiderable
part of these resaurces arelying in the sea bed extending along the Iraqi terri-
torialsea, fecls confident that the exploitation of tlieresources of this area
in a proper waywill be in the interest of the Traqipeople and is now possible
in view of the development of modem science.
Therefore, it declares that al1the naturalresources lying in the sea bed and
beneath the sea bed in the sea ara seaward frorn, but contiguous to Iraq's
territorial waters, are the property of Iraq, and that Iraq alone has fui1juris-
diction right on these reûourcesand to safegward and exploit them.It has also
the sole right ro take al1 neŒssarymeasuresto sumy these resources and
exploit them in away deemedsuitable. It has also the right to taal1nwessary
legislativeand administrative measures to safeguardal1the equipment required
for the survey and exploitation works.
The Governmcnt of Iraq wishes to wnfirm that the purpose for issuing this
statement is onIyto exercisethe right according to internationally agreed pro-
cedure. It also confirmsthat this statement does not affect the rulcs set up
regarding freedorn of navigation and fishing in the aforementioned sea zone.
(PubIished inthe Ofleial Gazerte No. 4069dated 27.11.1957.) COMMONRWOINDEK DE DENMARK AND THE NETHERLANDJ 577
Appendix 2 to Annex 9
In confirmation of the contents of the statement issued by the Government
of lraq on November 23, 1957, establisking the right of the Government of
Iraq in the waters beyond the territorial waters of Iraq.
The Government of Traq daclares that its full sovereignty extends to the
territorial watezones of Traq, the airspace ovcr them, the sea bed and the
sub-soi1area, declaring that al1works and installations, already c~rnpletor
to be completed, in this area or in theareaof contiguous waters, fa11under
the sovereignty of the Iraqi State, and it not permitted to carry them out
except by the Iraqi authoritiesor by other parties authorized by the Iraqi
authoritie~. The Iraqi Government, while declaring this in establishment of jts
rights, announces itç abidingwith the international procedurein this regard,
and the principIeof equidistancensuring for Iraq transit freedofrom and to
the high seas.
While stating this, the Iraqi Government declares at the same tirne that ir
does notrecognizeany statement, notification, legislationor planningconcerning
territorial wateror contiguous waters issued by any neighbouring country
contravcning the contentsof this statement.
(Signes)Prime Minister.
published inthe Ofic~a GazetteNo. 4128 dated 10.4.1958.)578 NORTH SEACONTINENTAL SHELF 1
Appendix3 to Annex 9
REPUBLICA DNECREE
DATED 4 NOVEMBE 1958
No. (435)
Pursuant to the proposa1of the Minister of Foreign Mairs and the approval
of the Council of Ministers, we have decrecd the fallowing:
1. The territorial sea of hqthe airspm above it, the sebed and the
sub-soi1 area are under the fulI sovereigofythe Iraqi Republic with due
regardto the principles underinternational law regarding peaceful passage of
forejgn ships.
2. The Iraqi territorial sea shalI extena distance of 12 nautical miles
(1,852 metres) seaward,measured from the lowest mark of thflow back of
sea water from the Iraqi coastline.
3. Incase the territorial sea of another state overIaps that OFIraq, the
houndaries of the two territorseasshall he fixedbyan agreement with the
state concerned according to principles established by internatioorlbyaw
mutual understanding.
4. This Decree duesnot prejudice the internationally established rofhts
Iraq in its contiguous zone and continental shelf which lie beyandthe Iraqi
territorial sea tciwardshisea.It does not prejudiceofficial comrnuniqu&s
previously issueby the Iraqi Goverornentin this regard.
The Ministerof ForeignAnairs ischarged with the execution of this Decree.
Written in Baghdad this 4th daofNovember, 1958.
(Published in thOficialGazelfeNo. 74 dated 15.11.1958,) CDMMONRWO1NDF;ROF DENMARK AND THE NETHERLANDS 579
Appendix 4 toAnnex 9
The Government of IraqiRcpublic isready to acceptoffersfrom companies,
firms and individuals who are interestinobtaining exploitation rights for oil
and its derivatives (ExpIoration and Devclopment) in wide areas of Iraq
Territorial Waters and its contiguous zone.
Offersmust besubrnitted to Ministry of Oil in Baghdaas frorn the date of
this announoement, and not later thansixmonths therefrom.
Applicants must satisfy the Ministry of Oil of their adequate financial and
technical abilities.
The Government of Iraq will reserve their right to refuse anor a11ofers
without obligations.
Note:
The detailed maps of this zone can be obtained from the Ministsy of Oil,
Baghdad.Appendix5 toAnnex 9
Common Rejoinder submitted by the Governments of the Kingdom of Denmark and the Kingdom of the Netherlands